the Act discriminates against the applicant. That it does was graphically illustrated in the second- and third respondents' answering affidavit. They suggested that the section is not unconstitutional because the applicant and the deceased could have made wills in favour of each other and could have entered into a written universal partnership agreement. The deceased was 34 years old when he died. At that age the making of a will is not a high priority. If the applicant and the deceased were a heterosexual couple, section 1(1) would have been applicable. The mere fact that it does not apply in their case means that they have been discriminated against.
[23] Section 172(1)(b)(i) of the Constitution provides that a court can make an order limiting the retrospective effect of a declaration of invalidity that is just and equitable. It is obvious that if that if there is no limitation of the retrospective effect, of an order in terms of prayers 1 and 2, it may affect already finalized estates. On the other hand it will by grossly unfair not to come to the assistance of the applicant. In my view it will be fair if an order is made like the one made by van Heerden J in the Daniels matter[1], before the majority of the Constitutional Court broadened the interpretation of 'spouse'. Finalized estates will not be affected. The applicant will get relief. In the case of pending estates executors will have to take notice of the order.
[24] Before dealing with the prayers that flow naturally from a declaration of unconstitutionality like prayers 4, 7 and 8, it is necessary to consider the applicant's claim for the removal of the first respondent as executor of the estate. The first respondent maintained that he was independent, objective and in possession of counsel's opinion to the effect that the applicant had no claim.
[25] It is so that the firm of attorneys who represented the first respondent in the application was his own firm and that another firm filed the affidavits on behalf of the second- and third respondents. I do not regard that as particularly convincing to indicate that the first respondent did not have the interests of the second- and third respondents at heart during his administration of the estate. Although they did not know him before, their daughter was the client of the first respondent. They nominated him as executor.
- ↑ See para [12] of the Constitutional Court's judgment.
