Summary
Summary FSAL Second Semester Case Summaries
- Institution
- University Of Cape Town (UCT)
Summaries of Cases covered In FSAL Second Semester.
[Show more]
Content preview
FSAL Case Summaries: Prescribed for the exam1) GORY V KOLVER : 2006
read-in remedy, value-based dimension
Facts:
- Con Court heard an application for confirmation of an order made by High Court-
ordered a read in. Declared s 1 (1) of Intestate Succession Act 81 of 1987
unconstitutional on the grounds that the provision did not provide for a permanent
same-sex life partner to inherit automatically as a spouse would when the other partner
dies intestate; word “spouse” excluded surviving same sex life partners from claiming
from estate.
- Gory: life-time partner of Brooks. Kolver left as executor of estate, nominated by parents
of Brooks- rejecting Gory being the sole heir. Therefore led to dispute: who the lawful
executor was. Intervention from sisters and previous life partners.
- Sisters: argued that they’d suffer prejudice: deprived of vested rights as intestate heirs.
Issue:
- Whether or not s 1 (1) is unconstitutional and what remedy should be
Outcome
- Kolver: removed as executor, suspended admin of estate until new executor appointed.
Court found however, HC exercised discretion unjudicially- Kolver not remunerated for
services and expenses as its decision was not based on substantial reasons
- Con Court in favour of Gory
- Read- in, intestate succession law after the word, “spouse”: “or partner in a permanenet
same sex life partnership in which the partners have undertaken reciprocal duties of
support”.
Constitutional concerns:
, - There were reciprocal duties of support established, still excluded. Therefore inconsistent
with Gory’s section 9 rights to equality and s 10 rights to dignity.
- Leg. Not responsive to re-looking at SA’s laws pertaining to same sex partnership, read
in was important
-piecemeal reform of the law: legislature not forthcoming.
- high court: unconstitutional on grounds of unfair discrimination of sexual orientation s 9
(3)
Matters of concern
- Discrimination on grounds of sexual orientation: that would mean the provision was
invalid from time of commencement (post apartheid, 1994, interim constitution)- would
therefore open flood gate for litigation, same sex life partners reopening cases from the
past on grounds of invalidity
- Retroactive, but limitations to avoid risk of disruption in admin of deceased estates.
- If someone claimed title of property of the deceased, who was in a same- sex life
partnership knowingly might be compelled to return property.
- Spouse was related to married couples, same-sex couples could not marry, no legalized in
civil law
- Reading in: benefits to same sex life partners, but not heterosexual life partners. Time is a
concept- same sex couple living together for a week, agreeing to a permanent partnership
and reciprocal duties will receive benefits of ISA but hetero couple-living together for 30
years cannot
2) DANIELS V CAMPBELL 2004
text-based/literalist approach, language dimension; value-based dimension, purposive/
holistic dimension; historical dimension
Facts:
, - Mrs Daniels married to deceased husband according to muslim rites in 1977. Not
solemnized: Civil law.
- Husband died intestate, income transferred to his estate.
- Mrs D: contributed financially towards household, even purchasing price, therefore
reciprocal duty of support.
Court a Quo
- Respondents: argued that she cannot inherit from estate, marriage not valid in civil law
and therefore did not qualify as, “surviving spouse” in ISA.
- The High Court held: “spouse” only applied to persons married in SA law. However,
agreed: violated Mrs D’s rights to practice religion and cultural beliefs and ordered
read-in to ISA and Maintenance of Surviving Spusoes Act to get her relief she sought.
- Appealed to con court.
Sachs J in Con Court
- “spouse” in its ordinary meaning should include parties to a muslim marriage, therefore
not upholding the read-in.
- Constitutional values of equality, tolerance and respect for diversity strongly in favour of
giving spouses a broad and inclusive constructions, esp when it correlates with the
ordinary meaning of the word: text-in-context approach, language dimension and
value-laden.
- Non-sexism: hard look at reality of flives that women have been compelled to lead by
law and legally- backed social practices: historical dimension, social outlook pertaining
to discourse of women
- Objective of the acts: widows receive a child’s share instead of dependency on familial
benevolence (purposive/holistic dimension).
Ngcobo J:
- Concurrent
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through EFT, credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying this summary from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller talithawyne. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy this summary for R95,00. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
71184 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy summaries for 14 years now