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IN THE HIGH COURT OF SOUTH AFRICA

(Cape of Good Hope Provincial Division)

REPORTABLE

Case No. 1574/2004

In the matter between:

DOMINIQUE SERGE MICHEL RIPOLL-DAUSA Applicant

And

JAMES VALENTINE GRANT MIDDLETON N.O. First Respondent

PETER BLANCKENBERG Second Respondent

MASTER OF THE HIGH COURT Third Respondent

JAMES VALENTINE GRANT MIDDLETON Fourth Respondent

JOAN MIDDLETON Fifth Respondent

THE MINISTER OF JUSTICE Sixth Respondent

JUDGMENT: 25 JANUARY 2005

DAVIS J:

1. Introduction.

On 8^th December applicant sought relief in the following form:

In respect of the Intestate Succession Act 81 of 1987:

‘1.1 Declaring that the omission from sections 1(a) and 1(d) of the Intestate Succession Act 81 of 1987, after the word “spouse” of the words “or a member of a permanent same-sex life partnership’ is inconsistent with the Constitution of the Republic of South Africa 108 of 1996 (“the Constitution”) and invalid; and

1.2 Declaring that sections 1(a) and 1(d) of the Intestate Succession Act 81 of 1987, is to be read as though the following words appear therein immediately after the word “spouse”

“or a member of a permanent same-sex life partnership”, provided that:

1.2.1The order shall not apply to any estates falling within the ambit of section 18(3) of the Administration of Estates Act 66 of 1995 in respect of which the Master’s Office has already issued letters of authority.

1.2.2The order shall not apply to any estate or part thereof in respect of which the executor has paid any creditor or distributed the estate or part thereof amongst heirs in terms of section 35(12) of the Administration of Estates Act 66 of 1995.

1.2.3The order shall not apply to any estate or part thereof in respect of which an executor’s account has been examined by the Master, and had lain open for inspection in terms of section 35(4) of the Administration of Estates 66 of 1995 and no objections have been lodged, or an objection has been lodged but withdrawn, or has not been sustained and no application has been made to Court in terms of section 35(10) of the Act.

2. In respect of the Maintenance of Surviving Spouses Act 27 of 1990.

   1. Declaring that the definition of “survivor” in section 1 of the Maintenance of Surviving Spouses Act 27 of 1990, is inconsistent with the Constitution and invalid, and

   2. Declaring that section 1 of the Maintenance of Surviving Spouses Act 27 of 1990, is to be read as though the following words appear therein immediately after the words “the surviving spouse in a marriage dissolved by death.

“or the surviving partner in a permanent same-sex life partnership dissolved by death” provided that:

1. The order shall not apply to any estates falling within the ambit of section 18(3) of the Administration of Estates Act 66 of 1995 in respect of which the Master’s Office has already issued letters of authority.

2. The order shall not apply to any estate or part thereof in respect of which the executor has paid any creditor or distributed the estate or part thereof amongst heirs in terms of section 35(12) of the Administration of Estates Act 66 of 1995.

3. The order shall not apply to any estate or part thereof in respect of which an executor’s account has been examined by the Master, and has lain open for inspection in terms of section 35(4) of the Administration of Estates 66 of 1995 and no objections have been lodged, or an objection has been lodged but withdrawn, or has not been sustained and no application has been made to Court in terms of section 35(10) of the Act.

1. Declaring that the omission from sections 2(1), 2(3)(b), 3(3)(d), 3() and 3(c) of the Maintenance of Surviving Spouses Act 27 of 1990, after the word “spouse” of the words “or a member of a permanent same-sex life partnership” is inconsistent with the Constitution and invalid; and

2. Declaring that sections 2(1), 2(3)(b), 2(3)(d), 3(a) and 3(c) of the Maintenance of Surviving Spouses Act 27 of a990, is to be read as though the following words appear therein immediately after the word “spouse”:

“, or a member of a permanent same-sex life partnership,” provided that:

2.4.1 The order shall not apply to any estates falling within the ambit of section 18(3) of the Administration of Estates Act 66 of 1995

1. The order shall not apply to any estates falling within the ambit of section 18(3) of the Administration of Estates Act 66 of 1995 in respect of which the Master’s Office has already issued letters of authority;

2. The order shall not apply to any estate or part thereof in respect of which the executor has paid any creditor or distributed the estate or part thereof amongst heirs in terms of section 35(12) of the Administration of Estates Act 66 of 1995.

3. The order shall not apply to any estate or part thereof in respect of which an executor’s account has been examined by the Master, and has lain open for inspection in terms of section 35(4) of the Administration of Estates 66 of 1995 and no objections have been lodged, or an objection has been lodged but withdrawn, or has not been sustained and no application has been made to Court in terms of section 35(10) of the Act.

2. In respect of the Administration of Estates Act 66 of 1965:

   1. Declaring that the omission from sections 18(1),19(a) and 19(b) of the Administration of Estates Act 66 of 1965 after the word “spouse” of the words “or a member of a permanent same-ssex life partnership” is inconsistent with the Constitution and invalid; and

   2. Declaring that sections 18(1), 19(a) and 19(b) of the Administration of Estates Act 66 of 1965 is to be read as though the following wording appear therein immediately after the word “spouse”

“, or a member of a permanent same-sex life partnership,” provided that

1. This order will not apply to any estate where a meeting has been called in terms of section 18 or any executor has been appointed in terms of section 19 of the Administration of Estates Act 66 of 1965.’

When the matter was first heard on 8 December 2004 the question arose as to the attitude of first, second, fourth and fifth respondents to the relief sought. Miss Dicker, who represented these respondents, informed me that these respondents would abide the decision of the Court. When Mr De Waal, who appeared on behalf of applicant together with Mr De Vries, commenced his address, he submitted that the factual question relating to whether applicant and Philip Graham Middleton (‘Philip’) were same-sex partners in a permanent life partnership would stand over for later determination, initially by the Master, and, in all likelihood, subsequently by a court upon an application for review of the Master’s decision. I raised with Mr De Waal the question as to the locus standi of applicant in circumstances where, on the papers, it had already been contended by first, second, fourth and fifth respondents that applicant had not been involved in a permanent life partnership with Philip.

The matter was then postponed so that counsel for both applicant and these respondents could consider their respective positions. By agreement, the matter was then postponed for hearing on 17 December 2004 and the following order was then made:

‘2.1 The First, Second, Fourth and Fifth Respondents must, by 14h00 on Monday 13 December 2004, deliver their contingent application for the referral of this matter to trial or oral evidence on the factual issue of whether or not the applicant and the deceased were same-sec partners in a permanent life partnership.

2.2 The Applicant must deliver his opposing affidavit(s), if any, by 14h00 on Wednesday 15 December 2004.

2.3 The First, Second, Fourth and Fifth Respondents must deliver their replying affidavit(s), if any, by 14h00 on Thursday 16 December 2004.

2.4 It is recorded that the Applicant does not concede that the First, Second, Fourth and Fifth Respondents are entitled to bring such an application at this stage of the proceedings and in the circumstances of this case and/or that the said Respondents are entitled to file further affidavits in support of such an application. The issues to be determined at the hearing on Friday 17 December 2004 shall be:

3.1 whether the constitutional issues of:

3.1.1 whether or not a same-sex partner in a permanent life partnership should be treated as if he or she is a ‘spouse’ for purposes of the legislation governing deceased estates, intestate succession and the maintenance of surviving spouses referred to in the Applicant’s Notice of Motion; and

3.1.2 the relief contingent upon a decision on that issue in the Applicant’s favour;

may be determined prior to and without a finding in the Applicant’s favour on the factual issue described in 2.1 above;

2. if the answer to the question described in 3.1 is in the negative:

   1. whether, as the Applicant is seeking final relief in motion proceedings and has not applied for the referral of any issue to trial or oral evidence, the First, Second, Fourth and Fifth Respondents’ version must be accepted and the application must be dismissed.

   2. if the answer to the question described in 3.2.1 is in the negative, whether the contingent application by the First, Second, Fourth and Fifth Respondents described in 2 above should be granted. If the application is granted the Court will be requested by the parties for directions as to the further conduct of the proceedings;

3. if the answer to the question described in 3.1 is in the affirmative, whether the application should be granted;

4. if the answer to the question described in 3.1 is in the negative and the answers to both of the questions described in 3.2 above are in the negative, whether the application should be granted.

4.It is recorded that the parties are in agreement that:

4.1 if, pursuant to 3.2.1 above, and the application is dismissed;

4.2 if, pursuant to 3.4 above, the application is granted; or

4.3 if, pursuant to a trial or oral evidence, this Court determines the factual issue described in 2.1 above.

Then, subject to the losing party’s or parties’ right to apply for leave to appeal and, if leave is granted, to appeal, the decision of this Court on the factual issue described in 2.1 above shall be binding on the parties in the administration of the estate of the late Philip Graham Middleton and any later proceedings relating to that estate.

2. All questions of costs shall stand over for later determination.’

In summary, the following issues stood for determination at the hearing on 17 December 2004:

1. Whether the issue of whether a same-sex partner in a permanent life partnership should be treated as if he or she is a ‘spouse’ for purposes of the applicable legislation can be decided without reference to the factual dispute which had been raised in the papers.

2. Whether, given that applicant was seeking final relief in motion proceedings and had not applied for the referral of any issue to trial or oral evidence, first, second, fourth and fifth respondents’ version must be accepted and accordingly the application dismissed.

3. Whether the contingent application by first, second, fourth and fifth respondents

for the referral of the matter to oral evidence and the factual issue of whether or not applicant and Philip were same-sex partners in a permanent life partnership should be granted.

2. The Abstract Question of law.

It is generally settled law that a court should not ordinarily decide a constitutional issue unless it is necessary to do so. See S v Mhlungu and Others 1995(3) SA 867(CC) at para 59.

In support of his arguments that the present dispute could be dealt with first by way of a resolution of the constitutional issue, Mr De Waal referred to the decision Ferreira v Levin NO: Vryenhoek v Powell NO 1996(1) SA 984 (CC) at para 167 where Chaskalson P (as he then was) said ‘The constitutionality of the law may be challenged on the basis that it is inconsistent with provisions of the Constitution other than those contained in chapter 3. Neither s 7 (4) nor any other provision of the Constitution denies to the applicants the right that a litigant has to seek, a declaration of rights in respect of the validity of the law which directly affects his or her interest adversely’.

In Ferreira’s case the applicants were summoned for examination in terms of section 407(3) of the Companies Act 61 of 1973. The constitutional issue arose within this context. In the present case however the question arises as to whether the Court should review legislation in circumstances where it may later be shown that the applicant was not in a life partnership with Philip and therefore had no locus standi to bring the application. The facts in Ferreira’s case and the present dispute are thus distinguishable.

The question then arises as to the existence of any other justification for proceeding to deal with the constitutional isses.

In Zantsi v Counsel of State Ciskei and Others 1995(4) SA 615 (CC) at para 4, Chaskalson P (as he then was) said ‘It is only where it was necessary for the purpose of disposing of the appeal or where it is an interest of justice to do so, that the constitutional issue should be dealt with first by this Court. It will only be necessary for this to be done when the appeal cannot be disposed of without the constitutional issue being decided; and it will only be in the interest of justice for the constitutional issue to be decided first, where there are compelling reasons that this should be done’.

In the present case there is little evidence on the papers which indicates that there are any compelling reasons to hear this matter in the form of an abstract review. Mr De Waal cited Geuking v President of RSA 2003(3) SA 34 (CC) in an attempt to counter the Zantsi dictum. In Geuking an applicant was permitted to challenge a provision of a statute in circumstances where there was no certainty that the section would be relied upon in an enquiry held pursuant to Extradition Act 67 of 1962. There was little doubt that the applicant in that case had more than a hypothetical interest in the decision. In the present dispute, absent the existence of a permanent life partnership, applicant’s interest would be of a hypothetical nature. Certainly the contention that a ruling against applicant may be inappropriate as it would amount to the usurpation of the function of the third respondent (see in particular Langemaat v Minister of Safety and Security 1998 (3) SA 312 (T)) is not of application in this case.

The crucial issue in this case is the application of the particular facts to the law relating to same-sex partnerships. See in particular National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000(2) SA 1 (CC) at para 88 and Satchwell v President of the Republic of South Africa 2002(6) SA 1(CC) at para 3 – 25. This is not a case where sufficient grounds have been set out in the papers to justify proceeding with the application in the form of an abstract review, as it is clear that first, second, fourth and fifth respondents are determined to prove that no permanent life partnership existed between applicant and Philip and that any interest which the applicant may have in this dispute is purely academic.

3. Can the matter be determined on the affidavit evidence before the Court?

Before dealing with the application of the law to this question, account must be given of the relevant content of the affidavits which have been filed. The factual foundation of applicants case is an allegation that, for the last fifteen years of Philip’s life, applicant was Philip’s permanent same-sex life partner. In his founding affidavit he states ‘Formerly both residing in the United Kingdom, the deceased and I relocated on 27 January 2001 from London to Cape Town where we shared the same abode until the deceased passed away’.

In support of this averment, applicant annexed an affidavit deposed to by the deceased on 1 March 2001 which constituted an affidavit by a life partner in circumstances where one of the partners was not a South African citizen and where the latter had applied for a permanent residence permit. Applicant and the deceased stated as follows in this affidavit:

‘We are the unmarried parties to a life partnership which is intended to be a permanent, (sic) excludes any other person and involves cohabitation, an obligation of mutual emotional support between us and a reciprocal obligation to support one another financially in circumstances where the one has the means to do so and the other requires such support in order to maintain without recourse to public funds, his or her financial and social standing and standard of living’.

Applicant also annexed a copy of a letter written by the deceased on 7 January 2001 in which he inter alia stated the following regarding their relationship: ‘We are regarded by both our families and all our friends and, of course, ourselves as Life Partners as we have been since 1988, a period of nearly 13 years. We live in a mutually supportive situation in all respects and this situation will continue in South Africa although I will be the principal financial support at least during Dominque’s early years.’

In his founding affidavit, applicant made mention of a further supporting affidavit to be deposed to by Mr Robin Tapper. This affidavit was filed when applicant filed his replying affidavit. In his affidavit Mr Tapper states:

2. ‘I have known the deceased, Philip Grant Middleton for approximately 44 years. We first met in Swaziland when we were still at school, went through University together, shared accommodation and with my Wife have been on numerous holidays together.

3.I have known Dominique Ripoll-Dausa for approximately five years but have known about his relationship with Philip for at least ten years, which was later confirmed by Philip to me….

5.In February 1999 Philip and Dominique came to stay with us in Cape Town and it was at this point that they acknowledged their relationship openly..

6. Four years ago Philip relocated to South Africa and asked if I had a position in my restaurant for Dominique as he was bringing Dominique with him.

7. They lived together in Cape Town as ‘man and wife’ and certainly shared a bed together. Philip told me that when he sold the house in Diep River and bought the house in Observatory it was to please Dominique who was not happy with the old house. Philip would do anything for Dominique’.

In his answering affidavit, Philip’s father, fourth respondent, denied the crucial averment that Philip and applicant had been involved in a permanent same sex life partnership. In summary, he substantiated his version as follows:

Philip’s parents and family did not regard applicant and Philip as being in a same sex life partnership. Notwithstanding applicant’s assertion that he and Philip had been life partners for fifteen years before Philip’s death in June 2001, fourth respondent said that ‘they did not reside together in the United Kingdom and the fact that they shared the same abode in Cape Town does not indicate the life partnership.’ In his affidavit, fourth respondent states that he visited London on numerous occasions in 1984, 1986, 1987 and 1989, 1992, 1994, 1996, and 1999 ‘during which period Philip was residing on his own in a flat at Stanhope Gardens, London’. Fourth and fifth respondent stayed with Philip in his flat. On most occasions they dined with Philip’s old friends either at restaurants or in the flat. Applicant was not present on any of these occasions. According to fourth respondent the only time that Philip’s parents saw Philip and applicant together was at dinner at applicant’s flat, a day they spent with them in East Anglia, a visit by Philip and applicant to their home in White River and a visit to the applicant’s parents in France in late 1999.

Fourth Respondent also averred that Philip had given him a special power of attorney to enable him to attend to the administration of Philip’s affairs with Standard Bank in the event that Philip was hospitalized for a long period and was unable to manage his affairs. This had been done by Philip, notwithstanding that fourth respondent resided in White River Mpumalanga and applicant lived with Philip in Cape Town.

Mr Breitenbach made much of applicant’s reply to these averments. In particular he referred to applicant’s response to fourth respondent’s allegations that he hardly saw applicant during his visits to London. In his reply, applicant stated: ‘For all practical purposes Philip and I lived together in London (even though we both had flats of our own). At this stage, Philip was not open about his sexual orientation. He was not ready to disclose to his parents that we had an intimate relationship and asked me not to stay over while his parents visited him’.

In Mr Breitenbach’s view, this paragraph in particular, constituted a significant alteration of the version provided by applicant in his founding affidavit and the supporting documentation in which he had alleged that ‘we are regarded by both our families and our friends….as Life Partners’.

The version in reply contradicted the assertions contained in the founding affidavit concerning the openness of their relationship. Mr Breitenbach submitted that there was thus a genuine dispute of fact of the nature of applicant’s relationship with Philip. Further the denial of applicant’s allegation that during the last fifteen years of Philip’s life he was Philip’s permanent same sex life partner was clearly not so far fetched or untenable that the Court would be justified in rejecting it on the papers.

Plascon – Evans.

The question then arises as to the appropriate legal principles to be applied to this kind of dispute. As is customary in these matters, counsel referred extensively to the dicta in Plascon-Evans Paints v Van Riebeeck Paints 1984(3) SA 623(a) at 634 E – 635 C. What was less usual about the manner in which this case was debated was the willingness of counsel to carefully and critically analyse the key dicta in this case.

Given that the meaning and application of these dicta were the subject of considerable dispute in this case, it is necessary to cite what Corbett JA (as he then was) said at 634 E – 635 C :

‘The appellant nevertheless sought a final interdict, together with ancillary relief, on the papers and without resort to oral evidence., In such a case the general rule was stated by Van Wyk J (with whom De Villiers JP and Rosenow J concurred) in Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235E-G, to be:

“…..where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant’s affidavits justify such an order… Where it is clear that facts, though not formally admitted, cannot be denied, they must be regarded as admitted.”

This rule has been referred to several times by this Court (see Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd 1976 (2) SA 930 (A) at 938A-B, Tamarillo (Pty)Ltd v B N Aitkin (Pty) Ltd 1982 (1) SA 398 (A) at 430-1; Associated South African Bakeries (Pty) Ltd v Oryx & Verenigte Bäckereien (Pty) Ltd en Andere 1982(3) SA 893 (A) at 923G-924D). It seems to me, however, that this formulation of the general rule, and particularly the second sentence thereof, requires some clarification and, perhaps qualification. It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact (see in this regard Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163-5; Da Mata v Otto NO 1972 (3) SA 858 (A) at 882D-H). If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under Rule 6(5)(g) of the Uniform Rules of Court (cf Petersen v Cuthbert & Co Ltd 1945 AD 420 at 428: Room Hire case supra at 1164) and the Court is satisfied as to the inherent credibility of the applicant’s factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks (see eg Rikhoto v East Rand Administration Board and Another 1983(4) SA 278 (W) at 283E-H) Moreover, there may be exceptions to this general rule, as, for example; where the allegations or denials of the respondent are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers (see the remarks of Botha AJA in the Associated South African Bakeries case, supra at 924A).’

Mr Breitenbach correctly observed that this dictum confirms the so-called Stellenvale principle but subjects it to two exceptions. The Stellenvale law is to the effect that a final interdict can only be granted in motion proceedings on a factual matrix which is based on the facts as contended for by respondent together with facts which have been made common cause because respondent has admitted to facts which have been averred by applicant in its affidavits.

The exceptions to the rule are the following:

1. In certain cases a denial by respondent of a fact which has been alleged by applicant may be insufficient to raise a real genuine or bona fide dispute regarding this alleged fact. If, in such a case, respondent has not availed itself of the right to apply for the deponent concerned to be called to be cross examined in terms of Rule 6(5)(g) of the Uniform Rules of Court, and the Court is satisfied as to the inherent credibility of the factual averment of applicant, it may proceed on the basis of the correctness of this averment and include it within the factual matrix upon which it determines whether applicant is entitled to the final relief sought.

With regard to this exception, the meaning of a denial by respondent of a fact alleged by applicant which may be insufficient to raise a real, genuine or bona fide dispute of facts was set out in Petersen v Cuthbert Co Ltd 1945 AD 420 at 428-429 thus:

“The lessors say that they require the premises and state in detail the reasons for requiring them. The lessee admits in his affidavit that the questions whether the lessors require the premises for their own use and whether such requirement is reasonable are matters peculiarly within the lessor’s own knowledge, yet he challenges most of the statements made by the lessors as to the difficulty and inconveniences due war conditions which arise under the present system of carrying on business. He cannot truly say that he denies statements made by the lessor, because he has no real knowledge of the facts, but he questions their truth and says the matter should be investigated in a trial action. Now this is not, in my opinion, a real dispute of fact, it is merely a suggestion that the difficulties and inconveniences have been exaggerated, and that the lessor’s desire to make use of its own premises for conducting their business in their own ways is an unreasonable requirement. The answer to that contention is that the lessors have shown prima facie that they have good reason for requiring the premises for their own use. If the lessee wished to test the validity of their reasons by cross examination, he could have done so under the rules of court to which reference has been made’.

See also Room Hire Company (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd. 1949(3) SA 1155 (T) 1164.

2. By contrast, the second exception operates where a respondent’s answer contains a denial of allegations which were so far fetched, so untenable that a court is justified in rejecting them on the papers. This is different to a case where respondent questions the truth of averments made by applicant in circumstances where he has no real knowledge of the facts. The second exception is designed to deal with a case in which respondent seeks to subvert the Stellenvale rule, namely where a respondent makes certain bald allegations or farfetched denials which are manifestly untenable, not supported by any evidence or reason and which have been designed simply to exploit the Stellenvale rule to the latter’s advantage and to the determent of applicant whose factual averments cannot be attacked on any plausible basis. See also South Africa Veterinary Council and Another v Szymanski 2003 (4) SA 42 (SCA) at 50-51.

On this interpretation of the law, Mr Breitenbach submitted that the applicant’s disputed evidence relating to his relationship with Philip must fall within the category of a genuine dispute of fact which is material to the relief sought. Furthermore applicant has not applied for a referral to oral evidence or to trial. On the basis of the principles outlined, a final order may be granted only if the facts averred in the applicant’s affidavits which are admitted by respondents together with the facts alleged by respondents justify such an order. In the present dispute, Mr Breitenbach contended that respondent’s denial destroyed the factual foundation of applicants case and accordingly the application stood to be dismissed; that is the factual matrix did not justify a finding in favour of applicants.

Mr De Waal submitted that applicant had placed clear and uncontested evidence before the court in the form of an affidavit deposed to by the deceased and applicant in support of applicant’s application for permanent residence. All that respondent was able to do to answer this evidence was to contend that the deceased had agreed to depose to an affidavit in order to assist a friend and that this evidence could not be relied upon to justify conclusion that a permanent same sex partnership between applicant and deceased had existed. Mr De Waal submitted that these were vague and insubstantial allegations raised in an attempt to create a genuine dispute of fact. On the basis of the Stellenvale test even qualified by the first exception, he contended that the matter should be decided on the papers in favour of applicant.

In my view, respondents allegations cannot be rejected as merely bald and unsubstantiated. The second exception is thus inapplicable. In this case there is a bona fide dispute of fact. Fourth respondent provides evidence regarding numerous visits of Philip’s parents to London. During these extensive visits fourth respondent avers that there was no existence of a permanent same sex partnership. Not only is this evidence based upon the personal experience of a deponent to an affidavit, being fourth respondent, but this affidavit promoted significant qualifications by applicant to the contents of Philip’s letter of January 2001. On the other hand, none of these allegations justify the rejection of applicant’s evidence which is also supplemented significally by the Tapper affidavit. The question thus arises as to the application of Rule 6(5)(g) in a case where there is a genuine dispute of fact.

The Application of Rule 6 (1)1(g) of the Uniform Rules of Court.

In their commentary of Rule 6(1) (g) Erasmus et al Superior Court Practice at B1-50 A state ‘In exercising its discretion under the subrule, the court will to a large extent be guided by the prospects of viva voce evidence tipping the balance in favour of the applicant. If on the affidavits the probabilities are evenly balanced, the court would be more inclined to allow the hearing of oral evidence than if the balance were against the applicant. The more the scales are depressed against the applicant, the less likely the court will be to exercise its discretion in its favour. Only in rare cases will the Court order the hearing of oral evidence where the preponderance of probabilities of affidavits favour the respondent.’

In this case, it cannot be said that the preponderance of probabilities based on the affidavit evidence favours the respondent. However respondent’s evidence has raised a sufficient dispute about the single most important question of fact in this case, being the existence of a permanent life partnership between applicant and Philip. The benefit of oral evidence could well tip the scales in favour of applicant on a balance of probabilities.

Erasmus et al at B1-50A state that it is desirable for the court to state in its order which issues will be determined by the hearing of oral evidence and who may or must be called as witnesses. In my view, given the nature of fourth respondent’s affidavit, read with the evidence provided by applicant in substantiation of his case, there is a reasonable prospect that the cross examination of both applicant and fourth respondent as well as further viva voce evidence may succeed in tipping the balance of probability in applicant’s favour. See Atkinson v Rare Earth Extraction Co Ltd 2002(2) SA 547 (C) at 559 E-G. The evidence should also be supplemented by certain documentary evidence which was not made available to the Court in the form of Philip’s diaries for 1988, 1989, 1990, 1992, 1993, 1995, 1996, 1997, 1998, notwithstanding a number of requests by respondent for these diaries to be made available.

A further dispute which arose during the hearing concerned the question of costs. As Mr De Vries, who argued this aspect on behalf of applicant, noted that the general order that costs further the result is qualified in such a case is that costs are ordered generally to come out of the deceased estate, irrespective of the outcome of proceedings, where a deceased estate is involved. See LAWSA volume 3(2) at para 369. However, Mr De Vries submitted that, owing to respondent’s failure to lodge an application timeously in respect of a referral to oral evidence, three court days had been wasted and the estate should not be burdened with the costs wasted by the late bringing of the application for the referral of the matter to oral evidence.

When the matter was to be heard on 6 December 2004, I was advised by Ms Dicker on behalf of respondents that first, second, fourth and fifth .respondents would abide the judgment of the Court on the basis that the only issue before the Court concerned the constitutionality of the applicable legislation. When the matter was heard, as noted above I raised the question as to whether the factual issue of whether applicant and Philip were in fact involved in the same sex partnership could be postponed to a later hearing, particularly when the issue of applicant’s locus standi to bring this application before this Court depended upon the existence of a life partnership. On the papers, I am unable to determine whether respondents were at fault for the wasted three days starting on 6 December and accordingly I am not, at this stage, prepared to make an order as to costs.

For these reasons the following order is made:

1. The application is postponed to a date to be arranged with the Registrar of the High Court for the hearing of viva voce evidence.

2. The issue to be resolved at such hearing is whether applicant and Philip Middleton were same sex partners in a permanent life partnership.

3. The evidence to be produced at the hearing shall be that of any witnesses the parties may elect to call subject to para 4 below.

4. Save in the case of any persons who have already deposed to affidavits in these proceedings, neither party shall be entitled to call any person as a witness save with the leave of the Court, and after a notice has been served on the other party at least fourteen days before the date appointed for the hearing wherein the evidence to be given in chief by such person is set out.

5. Within thirty days of the making of this order, each of the parties shall make discovery on oath of all documents relating to the issue referred to above which documents are or have at any time been in possession or under control of such parties, in particular Philip Middleton’s diaries for the years 1988-1990 and 1992-1998 inclusive.

6. Such discovery shall be made in accordance with Rule 35 of the Uniform Rules of Court and the provision of that Rule with regard to the inspection and production of such documents discovered shall be operative.

7. Costs are to stand over for later determination.

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DAVIS J

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