PDF Constitutional Court of South Africa Case No. Cct 28/06

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CASE NO. CCT 28/06

In the matter between:

BOBBY-LEE BELL Intervening Party

In re:

MARK GORY Applicant

and

DANIEL GERHARDUS KOLVER N.O. 1^st Respondent

HENRY HARRISON BROOKS 2^ndRespondent

MARYKE BROOKES 3^rd Respondent

LAEEQUE EYSSEN 4^th Respondent

MOGAMAT SEDICK EYSSEN 5^th Respondent

MASTER OF THE HIGH COURT 6^th Respondent

MINISTER OF JUSTICE & CONSTITUTIONAL DEVELOPMENT 7^th Respondent

FOUNDING AFFIDAVIT: APPLICATION FOR INTERVENTION

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I, the undersigned,

BOBBY-LEE BELL

do hereby make oath and say that:

1. I am an adult male and presently reside on Heldersig Farm, Wellington, Western Cape.

2. Save where the contrary appears from the context, the facts herein contained are within my own personal knowledge and are both true an correct. The legal submissions set out in this Affidavit are made on the advice given to me by my legal advisors, which advise I accept.

3. I bring this application on my own behalf as an intervening party in order to seek leave to intervene in the matter of Gory v Kolver N.O. & Others under this Court’s case number CCT 28/06 (“the main case”), and to address submissions on

3.1. the constitutional invalidity of Section 1(1) of the Intestate Succession Act 81 of 1987; and

3.2. the order to be made by this Honourable Court in relation thereto in terms of section 172(1)(a) and (b) of the Constitution

4. I bring this application conditionally and seek leave to intervene only in the event that the Application for Intervention brought by Erilda Starke, Sharon Bezuidenhout, Janine Starke and Heidi Pool on 24 July 2006 in the main case is granted. For convenience, I will refer to the latter application as “the Starke Intervention Application”.

5. The applicants in the Starke Intervention Application (“the Starke applicants”) and I are in dispute in relation to the question whether I am entitled to succeed to the intestate estate of my late same sex life partner, William Starke (“William”). I do not oppose the Starke Intervention

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Application. However, the determination of the issues set out in paragraphs 3.1 and 3.2 above may be decisive of our dispute and I would not want these issues to be decided by this Honourable Court in a hearing in which the Starke applicants participated but I did not. I have accordingly brought this conditional application for leave to intervene.

6. For the sake of clarity I also set out in this Affidavit my answer to the Starke Intervention Application which has been served upon me as an Interested Party although I am not cited as a Respondent therein and am formally thus not a party to these proceedings at present.

7. THE PARTIES

7.1. The Applicant and Respondents referred to in the Notice of Motion are the Applicant and Respondents in the main case. Copies of this application will be served on all the parties in the main case.

7.2. The Starke applicants are William’s sisters, Elrida Starke, Sharon Bezuidenhout, Janine Starke and Heidi Pool. Copies of this application will be served on them.

7.3. Service of this application will also be served on attorney Smith care of his attorneys Minde Shapiro & Smith (“Smith”), Tygervalley Office Park, Building No. 2, Cnr Willie van Schoor and Old Oak Roads, Bellville. Smith is the executor of William’s deceased estate.

He has already filed an Affidavit in the Starke Intervention Application indicating that he will abide by the decision of the Court in that application.

8. EXPLANATION FOR THE TIMING OF THIS APPLICATION

8.1. Although I, through my attorneys, have been aware of the main case and its pending hearing for some time, I had always

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understood that my legal position in respect of William’s deceased estate would in effect be determined by the outcome of the main case. In the absence of any attempt by the Starke applicants to intervene in the main case, I saw no need to intervene myself and was content to abide the decision of this Honourable Court.

8.2. It was only on 25 July 2006 that the Starke Intervention Application was served on my attorneys and I became aware of the Starke applicants’ firm intention to seek to advance arguments before this Court. Smith had informed me on 1 June 2006 that the Starke applicants were “considering briefing Counsel to make application to appear on their behalf” in the main case but at no stage prior to receipt of the Starke Intervention Application were my attorneys or I informed that the Starke applicants had taken a definite decision to apply to intervene.

8.3. When he received the Starke Intervention application on 25 July 2006, my attorney, Paul du Toit of Morkel & De Villiers, Somerset West (“du Toit”), contacted Advocate AJ Smit S.C. to seek advice in respect of the matter and briefed him with a copy of the Starke Intervention Application. A consultation was arranged with Advocate AJ Smit S.C. for 28 July 2006. On that occasion, the legal issues were considered together with my finances and the practicalities of filing papers and presenting argument before this Honourable Court. It was determined that it would be most cost effective for me to make use of a Johannesburg firm of attorneys and advocate in this regard and I immediately instructed du Toit to locate and brief suitable Johannesburg attorneys firm.

8.4. After following several leads in that regard, attorney du Toit contacted Moodie & Robertson of Johannesburg on the early morning on the 1^st of August 2006. That same day those attorneys obtained from the Registrar of this Honourable Court, copies of the Heads of Argument filed up to that time, the directives given and the

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record of the main case. It was accordingly only by 1 August 2006 that my legal advisors were able to properly advise me of the significance of the Starke Intervention Application in relation to the arguments being presented in the main case.

8.5. On the 1^st of August 2006, my Johannesburg attorneys also engaged the services of Advocate Chaskalson to assist in this matter and a consultation was arranged for 2 August 2006. This application was prepared with all haste thereafter.

9. SUBMISSIONS AND ANSWER TO THE STARKE INTERVENTION APPLICATION

I turn now to answer the allegations contained in the Affidavit of Erilda Starke in the Starke Intervention Application. In doing so, I simultaneously answer those allegations and set out my own contentions in this matter.

10. AD PARAGRAPHS 1 – 8

I note the contents hereof.

11. AD PARAGRAPHS 9 AND 10

12. AD PARAGRAPHS 11 – 22

12.1. I dispute the correctness of the contentions set out herein and submit that paragraphs 2 and 3 of the Order of Hartzenberg as reported in J Gory v Kolver N.O. & Others 2006 (7) BCLR 775 (T) (“the Hartzenberg J orders”) are appropriate and just and equitable relief within the meaning of sections 38 and 172 of the Constitution.

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12.2. For present purposes I provide an outline of the submissions that my legal representatives will advance in this regard on my behalf if granted leave by this Court to do so. It will be submitted that

12.2.1. The order handed down by His Lordship Mr Hartzenberg J is appropriate because, until 1 December 2006 when the suspension period in the judgment of this Court in Minister of Home Affairs v Fourie 2006 (1) SA 524 (CC) (“the Fourie case”) expires or until Parliament has amended the Marriage Act, it is not possible for gay couples to marry.

So the reasoning that underlies the orders of this Honourable Court in cases such as National Coalition for Gay & Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC), Du Toit v Minister of Welfare & Population Development (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC), J v Director- General, Department of Home Affairs 2003 (5) SA 621 (CC) and Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC) continues to apply.

12.2.2. The questions of what status to accord pre-existing same sex life partnerships after 1 December 2006, whether to provide a “transitional” period in which partners to pre- existing same sex life partnerships will be expected to marry or to register their pre-existing life partnerships to continue to qualify for the benefits conferred by law on spouses, and if so, the length of such a transitional period are pre-eminently legislative decisions which ought to be taken by Parliament when it enacts the legislation contemplated in the Fourie case, and ought not to be anticipated by this Court. The primary responsibility of this is to cure the existing (and historical) unconstitutionality of the Intestate Succession Act which requires the reading in ordered by His Lordship Mr Justice Hartzenberg. When

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Parliament enacts the legislation contemplated in the Fourie case it can decide whether or not to amend any such reading in to bring the Intestate Succession Act into harmony with the new non-discriminatory marriage regime that it will have enacted.

12.2.3. To the extent that the Starke applicants suggest elsewhere in their founding affidavit that an autonomy interest of deceased same sex life partners is violated by the reading in order handed down by His Lordship Mr Justice Hartzenberg

12.2.3.1. this contention is factually incorrect in relation to William, as I point out in more detail below,

12.2.3.2. the purpose of the Intestate Succession Act is to provide normative standards, not to protect the autonomy of testators – testators exercise their autonomy by executing wills,

12.2.3.3. the invocation of autonomy interests to urge this Court not to confirm the reading in order of His Lordship Mr Justice Hartzenberg is incompatible with the decisions of this Court in Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae) 2005 (1) SA 580 (CC) and Daniels v Campbell NO and Others 2004 (5) SA 331 (CC)

12.3. I have been advised further that although the primary declaration of invalidity handed down by His Lordship Mr Justice Hartzenberg appears to be unopposed, it remains necessary for this Court to consider the constitutional validity of section 1(1) of the Intestate

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Succession Act. In this regard, if granted leave by this Court to do so, my legal representatives will submit that the section is inconsistent with the Constitution because it discriminates unfairly on grounds of sexual orientation. In this regard, they will rely, inter alia, on the authorities cited in paragraph 12.2.1 above.

13. AD PARAGRAPHS 23 - 29

I admit the contents hereof.

14. AD PARAGRAPH 30

14.1. Save to deny that William elected not to make a Will, I admit the contents hereof.

14.2. The above Honourable Court is referred to my Affidavit dated the 2^nd of July 2006 annexed to annexure “ES5” to the Starke Intervention Application. I repeat and confirm the contents thereof and pray that they must be read as if specifically incorporated herein. In particular, I repeat that I was involved in a permanent same sex life partnership with William from March 2003 to the date of his sudden death during November 2005 and that during that period:

14.2.1. We shared a reciprocal duty of support;

14.2.2. We lived together permanently;

14.2.3. The permanent and same sex nature of our partnership was well known to our friends; and

14.2.4. We considered each other as any heterosexual married couple would and even had a private ceremony where we exchanged vows and rings in this regard.

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14.3. It is worth recording that William’s relationship with the first Starke sisters was remote and sporadic. William and his sisters had previously got on fairly well but their relationships had soured during earlier litigation between those sisters and William’s stepmother.

During that litigation William had been sympathetic to their stepmother and this had led to a souring of the relationship with his sisters. During my relationship with William contact between and his sisters was infrequent and consisted mainly of telephone calls or SMS text messages on the occasions of his birthday or at Christmas time. Their relationship was at that time certainly not close.

14.4. From conversations I had with William during 2005 and prior to his death, I knew that he had intended to make a Will. He had discussed this issue with me simply by way of telling me that it was his intention to make a Will and that he intended it will be a very simple document as he had no-one else he wished to leave his estate to except me. In the event and because of his sudden death however he never drew up a Will. William's abovementioned intention was conveyed by him to various friends in my presence.

15. AD PARAGRAPHS 31 – 36

Save to note that I do not accept the applicability of all the legal provisions referred to in these paragraphs, I admit the contents hereof.

I have no knowledge of the time spent by Smith with the administration of William’s estate. I am advised and respectfully submit however that such time as was spent on the estate has not been wasted and will not in any way be wasted if paragraphs 2 and 3 of the Hartzenberg J order are

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confirmed. The work that has been done in respect of that estate had to be done irrespective of who the legal heirs are to that estate.

17. AD PARAGRAPH 38

I admit the contents hereof.

19.1. I admit the contents hereof.

19.2. Immediately after William’s death, I had several conversations with his sisters. During these conversations, it was intermitted to me that the Starke sisters had no interest in William’s estate save for a few family heirlooms. In particular, Janine Starke said this to me. Some weeks thereafter however the sisters asserted a claim to William’s estate. It was this that caused me to first see du Toit. He arranged for me to consult with Advocate AJ Smit S.C. on the 1^st of February 2006 in this regard. At that time du Toit was not aware of the Judgement of Hartzenberg J and had briefed Advocate AJ Smit S.C. to consider and advise on whether, as a result of my relationship with William, a claim should be brought for a dissolution of a universal partnership and/or claim for maintenance against William’s estate. Pursuant to this consultation and before either du Toit or Advocate AJ Smit S.C. had closely considered the Hartzenberg Judgment, a series of settlement discussions took place between du Toit and Smith in relation as to whether the parties could agree to a division of William’s estate. When these settlement discussions did not come to a conclusion, Advocate AJ Smit SC was briefed to furnish and did furnish me with an opinion

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on the effect of the Hartzenberg judgment to my situation. It was this opinion which culminated in du Toit sending annexure “ES3” to the Starke Intervention Application to Smith.

20. AD PARAGRAPHS 41 AND 42

I repeat the contents of paragraph 19 above.

Insofar as the contents of my earlier Affidavit are contested, I take issue therewith and repeat what has been stated in my earlier Affidavit. I am advised that this Honourable Court will not seek to determine any dispute of fact between myself and the Starke sisters as to the existence of permanent life partnership between myself and William. In these circumstances, I do not deal with this aspect in any further detail at this time.

24. AD PARAGRAPH 46

24.1. Erilda Starke’s allegation that she was close to both me and William is incorrect. I repeat that the relationship between her and William had become strained after the previous litigation involving his stepmother and that their interactions were infrequent. She did not visit us on Meerendal on numerous occasions. In fact when we were living together at Meerendal, she only visited us on one occasion.

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24.2. I do not know what is meant by Erilda Starke’s allegation that she would have known if William and I had exchanged vows bearing in mind our and her relationship. It is correct that the issue of exchange of vows between William and I was never discussed with Erilda. This is precisely because she was not close to William and not a close friend of mine. This is also the reason why neither Erilda nor any of the other Starke sisters were invited to the anniversary parties William and I held in 2004 and 2005. In any event Erilda sent me a "sms" to my cellular phone on the 5^th May 2006 in which she acknowledged me as a "Starke". I have kept this "sms" on my cellular phone.

24.3. After William's death a dispute arose between myself and the Starke sisters about William's ash. It was in fact Erilda who persuaded the remaining sisters to allow me to have the ash which is now in my possession.

I deny that there will be any inappropriate or unjust consequences if I am regarded as William’s intestate heir. I submit the contrary is correct. It was not possible for William and I to be married during his life time because it was (and still is) prohibited in terms of the Marriage Act 25 of 1961. Had it not been for this, William and I would have been married and then I would have been his intestate heir. If the law unconstitutionally prohibited this from taking place that would lead inappropriate and unjust consequences.

26. AD PARAGRAPH 48

Save to admit that the amount involved in William’s estate is approximately R10 000.000.00 (ten million rand), the contents hereof are denied. In light of the provisions of the Constitution, I deny that any rights vested in the Starke sisters on William’s death.

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27. AD PARAGRAPHS 49 and 50

I deny the contents hereof. Section 4(9) of the Estate Duty Act is designed to protect spouses and same sex life partners. It is not inequitable to allow the section to achieve its purpose in the case of William’s estate.

29. AD PARAGRAPH 52

29.1. I note the contents hereof but deny that the appointment of new executors would lead to any significant waste of effort on the part of either previous or new executors.

29.2. In particular in relation to William’s estate, it should be noted that to the best of my knowledge, there has been no interim or early distributions of the assets of that estate by Smith. Accordingly in relation to William’s estate, there would be no waste of effort or delays caused if I were to be so regarded as the heir to the estate.

30.1. I deny the contents hereof. In the circumstances contemplated in relation to the William’s estate and the Gory matter, the only unusual delays that could take place would be those caused by litigation. If this Honourable Court were to finally determine this issue in favour of upholding prayers 2 and 3 of the Judgment of Hartzenberg J, there would not be any delay in the finalisation of the estate. Rather in fact the finalisation of the affected estates would be simplified (with there often being only one heir to whom

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distributions were to be made and without there being a need of any estate duty payments or calculations).

30.2. I note also that Smith does not confirm these assertions.

31. AD PARAGRAPH 54

I repeat the contents of paragraph 12.4 above and deny the contents hereof. Given Erilda Starke’s remote relationship from William, her un- collaborated and unfounded allegation that he had made a conscious decision not to make a Will is without merit.

32.1. I did not formally pursue a claim as the sole intestate heir of William’s estate until 2 June 2006, because it was only then that I was advised that I had such a claim under the Intestate Succession Act.

32.2. The remaining allegations herein contained are denied. I repeat the contents of paragraph 17 above.

33. AD PARAGRAPH 56

I do not dispute that the Starke applicants have an interest in any order that this Court will make and do not oppose their application for intervention.

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34. General

I will comply with any directions this Court may make in respect of further handling of this application. In this regard, I do not seek costs from any party in this matter.

35. A confirmatory affidavit of du Toit is annexed hereto.

________________________

DEPONENT

I HEREBY CERTIFY THAT THE DEPONENT HAS DECLARED THAT HE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT AND THAT TO THE BEST OF HIS KNOWLEDGE AND BELIEF IT IS THE TRUTH, WHICH AFFIDAVIT HAS BEEN SIGNED AND SWORN TO BEFORE ME AT

___________________ ON THIS THE _________ DAY OF

__________________________ 2006, AND THAT THE PROVISIONS OF THE REGULATIONS AS CONTAINED IN GOVERNMENT NOTICE NO. R1258 OF 21 JULY 1972, AS AMENDED HAVE BEEN COMPLIED WITH.