A gay man is embroiled in a potentially landmark Constitutional Court dispute with the family of his late partner of 12 years.
Eric Duplan and Cornelius Laubscher were in a committed and permanent relationship from 2003 until February 2015, when Laubscher died, without leaving a will.
Although they lived together as life partners they never married under the Civil Union Act, a situation that has led to the dispute.
Following a claim on the estate by Laubscher’s family, Duplan was named the rightful heir by the courts, but the deceased man’s brother, Rasmus Laubscher, has now appealed the ruling in the Constitutional Court.
The case hinges on a previous Constitutional Court ruling, known as the Gory order, made before the Civil Union Act came into being.
It decided that a “partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support” is entitled to inherit the deceased partner’s estate under the Intestate Succession Act.
Laubscher claims, however, that the Gory order was only intended as an interim measure until same-sex marriage became legal and is thus no longer valid.
Last week, the Commission for Gender Equality (CGE), represented by the Legal Resources Centre, asked the Constitutional Court to be admitted as a “friend of the court” in the case.
In its application, the Commission rejected the argument that the Gory order was an interim measure and submitted “that the Gory order and the Civil Union Act are not incompatible and they do live side by side; and that the Civil Union Act did not repeal the Gory order”.
It further pointed out that, “The Gory order gives better effect to the spirit, purport and objects of the Bill of Rights.”
In a statement, the Commission said that, “the Intestate Succession Act should be left as is which, in its current form, provides legal protection to unregistered same-sex partners, and provides for significant substantive equality gains for same-sex life partners”.
Coenie Kukkuk, a Pretoria-based attorney specialising in same-sex relationship law, told Mambaonline that the divisive case was ultimately as a result of “the failure of the government to enact the Domestic Partnership Act”.
The law, which was promulgated more than eight years ago, has still not been brought before Parliament, “despite many requests”. Once enacted, it would allow unmarried couples who are domestic partners to inherit their partner’s estate.
Kukkuk explained that for now both gay and straight people in domestic unregistered partnerships have the same problem if their partners die without leaving a will.
He acknowledged that if the court allows Duplan to inherit from his deceased partner, this could mean that “gay couples in this situation will have more rights than their heterosexual counterparts”.
However, he pointed out, “that the court can easily make the order applicable to all couples in domestic unregistered partnerships – gay or straight”.
It is unclear when the Constitutional Court will make a ruling in the complex case.