Bwanya v the Master and Others 2021 (1) SA 138 (WCC)For a great many years, couples have lived together without entering into a legally recognised marriage and numerous people in South Africa still live in this way. The term ‘life partnership’ is one of the terms used to signify this type of relationship. A heterosexual life partnership is between partners in an opposite-sex relationship.
In Bwanya v the Master, the court addressed the challenge on the constitutionality of both the Maintenance of Surviving Spouses Act 27 of 1990 (MSSA) and the Intestate Succession Act 81 of 1987 (ISA), insofar as they excluded the applicant from inheriting or receiving maintenance from her deceased life partner’s estate.
The applicant was in a permanent life partnership with the deceased and they lived together. The applicant and the deceased were engaged to be married to each other and the people who were close to them knew about their commitment to marry one another (paras 23 to 25). The deceased provided financial support to the applicant but unfortunately died two months prior to their arranged travel to the applicant’s home-country to finalise lobolo negotiations, after which they would get married (para 25). Based on the presented evidence, the court was convinced that the applicant and the deceased had been in a permanent life partnership and had undertaken reciprocal duties of support (para 142).
The court was called on to determine whether some of the provisions of the ISA and the MSSA that were pertinent to this case were unconstitutional and invalid, and if so, what would be a just and equitable remedy.
Section 1(1) of the ISA excludes life partners in a permanent opposite-sex life partnership from inheriting intestate as per the Act.
The court found an unfair discrimination insofar as heterosexual partners who have undertaken a reciprocal duty of support are excluded from inheriting intestate from the estate of their deceased partners. This was based on the fact that same-sex life partners are still allowed to inherit intestate post the Civil Union Act 17 of 2006 (CUA), which allows them to marry.
In Laubscher NO v Duplan and Others 2017 (2) SA 264 (CC), the Constitutional Court (CC) decided that the CUA did not repeal the Gory court order (Gory v Kolver NO and Others (Starke and Others Intervening) 2007 (4) SA 97 (CC)), which permitted same sex permanent life partners to inherit intestate from each other’s estate because it did not amend s 1(1) of the ISA. This decision permits same-sex life partners to invoke the protection of pre-CUA case law despite not having solemnised a marriage. As a result, this clearly discriminated against heterosexual permanent life partners because the same protection was not extended to opposite-sex partners in a similar position.
Consequently, the court found this discrimination to gravely affect the rights and interests of heterosexual permanent life partners who depend on each other for support (para 170). It was further held by the court that it is an infringement of the right to equality for heterosexual permanent life partners to be ‘left out in the cold’ while same-sex life partners in the same boat, stand to benefit (para 172).
Therefore, the court found the ISA to unfairly discriminate against heterosexual life partners and ordered that wherever the word ‘spouse’ appears in the Act, there should be a read in of the words ‘or partner in a permanent opposite-sex life partnership in which the partners [have] undertaken reciprocal duties of support’ (para 225).
The definition of a ‘survivor’ in the MSSA excludes a heterosexual permanent life partner. The applicant’s challenge on the MSSA failed on the ground that the precedence set by the CC in Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC), upheld that a claim for spousal maintenance must be created by ‘operation of law’ through a marriage, as opposed to a ‘contractual one’, which is through an agreement to cohabit (paras 200 and 209). The Volks judgment was based on the ‘choice argument’, which is an argument that, by choosing not to enter into a marriage, a cohabitant cannot insist on the benefits of a marriage. In this regard, one could not help but wonder whether there was logic in applying the ‘choice argument’ on claims based on the MSSA (spousal maintenance), but not in the context of the ISA (intestate succession), because both claims are predicated on the existence of a reciprocal duty of support. Thus, it was considered necessary by several legal scholars to review and overrule the Volks decision in order to provide heterosexual permanent life partners with the same benefits enjoyed by same-sex life partners.
Consequently, the High Court’s judgment was referred to the CC.
In the recent judgment of the CC, the High Court’s order was confirmed in declaring that the ‘exclusion of surviving permanent opposite-sex life partners from enjoying benefits under section 1(1) of the Intestate Succession Act amounts to unfair discrimination’ (Bwanya v the Master and Others (CC) (unreported case no 241/20, 31-12-2021) (Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mhlantla J, Pillay AJ, Theron J, Tlaletsi AJ and Tshiqi J) (para 92)).
However, contrary to the High Court’s order, the CC has concluded that ‘the denial of the section 2(1) maintenance benefit to permanent life partners constitutes unfair discrimination’ insofar as it excludes permanent life partners who undertook reciprocal duties of support (paras 73 and 81). It sufficed that the important fact to establish is whether there is a ‘legally enforceable duty of support arising out of a relationship’ (para 71). As a result, it was ordered that the definition of ‘survivor’ in the MSSA should be read as if it also included a surviving partner of a permanent life partnership where the ‘partners undertook reciprocal duties of support and … where the surviving partner has not received an equitable share in the deceased partner’s estate’ (para 95).
Therefore, Parliament has a period of 18 months to rectify the identified constitutional defects.
Significantly, this judgment now permits heterosexual permanent life partners who have undertaken reciprocal duties of support to claim for inheritance and maintenance from the other deceased partner’s estate.
Nozipho Lethokuhle Ndebele LLB (UFS) LLM (UFS) is a graduate in Cape Town.
This article was first published in De Rebus in 2022 (March) DR 26.
