Surviving heterosexual life partners and the Intestate Succession Act 81 of 1987

The wide powers of judicial review granted to South African courts by the Constitution have, predictably and correctly, led to the judicial broadening of the ambit of persons who qualify as a surviving ‘spouse’ for the purposes of the Intestate Succession Act, 1987 (‘the ISA’). Surviving heterosexual life partners, however, remain excluded. In an earlier publication, I concluded that this exclusion violates the rights to equality and dignity of these partners. Building hereon, this article considers the fashioning of the appropriate constitutional remedy. In doing so, it identifies the prevailing positive law as an example of what I term ‘judicially generated residual discrimination.’ This occurs when a new form of marginalisation arises in our constitutional democracy as the (presumably unintended) by-product of the judicial broadening of a (pre-1994) piece of legislation. Where a court finds this to constitute unfair discrimination, the nature, scope and effective date of remedial action may be complicated by the very fact that the unfair discrimination has arisen as a result of earlier, but post-Constitutional, case law. This is particularly so in the case of the ISA, because standing ‘reading-in’ orders granted by the Constitutional Court – that have never been addressed by the legislature – need to be tinkered with by the court. This requires the doctrine of precedent to be considered in a context in which it has never been considered before in South Africa (or in comparable jurisdictions such as the United States and Canada). The article proffers a remedy that addresses these issues while conforming to the constitutional demands of providing ‘appropriate relief’ by means of an order that is ‘just and equitable.’ In this manner, it also provides perspectives that may be taken into account by courts that may have to adjudicate upon similar instances of ‘judicially generated residual discrimination’ in future

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