Article written by S’negugu Dlamini, Candidate Attorney, checked by Jordan Dias, Associate and released by Chantelle Gladwin-Wood, Partner at Schindlers Attorneys
11 July 2022
Introduction
The Bwanya judgment deals with the right of a surviving life partner in a permanent opposite-sex life partnership to inherit or claim maintenance from the deceased partner’s estate. Pursuant to this judgment, cohabiting opposite–sex couples did not enjoy the same rights as married couples. This article will briefly discuss 3 (Three) judgments and the legal position prior to such judgment/s.
Legal Position Prior to the Bwanya Judgment
In the Volks v Robinson1 case (“Volks”), Mrs. Robinson and Mr. Shandling were partners in a permanent heterosexual life partnership. They had lived together as husband and wife from 1985 until Mr. Shandling’s death in 2001. Mr. Shandling had financially supported Mrs. Robinson during the subsistence of their partnership. When Mr. Shandling died, he left approximately 1/3 of his estate to Mrs Robinson. Despite this, Mrs. Robinson sought to claim spousal maintenance in terms of the Maintenance of Surviving Spouses Act 27 of 1990 (“Maintenance of Surviving Spouses Act”). The claim for maintenance was disputed by the executor of the estate, being Mr Volks, on the grounds that Mrs. Robinson could not be defined as a survivor/surviving spouse in terms of the Maintenance of Surviving Spouse Act.
Mrs. Robinson was successful in the High Court; however, the Constitutional Court rejected the interpretation of the word ‘spouse’ to include an opposite sex life partner for purposes of a claim in terms of the Maintenance of Surviving Spouses Act. The Constitutional Court held that the discrimination between married couples and opposite sex life partners was justified and constitutional.
The Bwanya case
The first issue before the Court was whether a surviving partner of a permanent heterosexual life partnership, in which partners had undertaken reciprocal duties of support, was entitled to claim maintenance under the Maintenance of Surviving Spouse Act. The second issue was whether a surviving partner, in a permanent heterosexual life partnership in which the partners had undertaken reciprocal duties to support each other, was entitled to inherit from the estate of the deceased partner under the Intestate Succession Act 81 of 1987 (“Intestate Succession Act”).
Section 2(1) of the Maintenance of Surviving Spouses Act affords surviving spouses the right to lodge maintenance claims against the estates of their deceased spouses if they cannot support themselves. It provides that—
“[i] If a marriage is dissolved by death after the commencement of this Act the survivor
shall have a claim against the estate of the deceased spouse for the provision of his
reasonable maintenance needs until his death or remarriage in so far as he is not able
to provide therefor from his own means and earnings.”
Section 1 of the Intestate Succession Act which provides that:
“(i) If after the commencement of this Act, a person (hereinafter refer red to as the “deceased”) dies intestate, either wholly or in part, and-
(a) is survived by a spouse, but not by a descendant, such spouse shall inherit the intestate estate;
(b) is survived by a descendant , but not by a spouse, such descendant shall inherit the intestate estate;
(c) is survived by a spouse as well as a descendant-
(i) such spouse shall inherit a child’s share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed from time to time by the Minister of Justice by notice in the Gazette, whichever is the greater; and
(ii) such descendant shall inherit the residue (if any) of the intestate estate;”
The majority (Madlanga J, with Khampepe J, Majiedt J, Pillay AJ, Theron J and Tlaletsi AJ concurring) held that unfair discrimination based on marital status is prohibited by section 9 of the Constitution, and that any such discrimination is presumed to be unfair unless it can be shown not to be unfair (i.e., a justified limitation in terms of section 36 of the Constitution).
The Constitutional Court took into consideration that there are more than three million South Africans in life partnerships and found that excluding the right of partner in a permanent heterosexual life partnership to inherit under Intestate Succession Act from a deceased partner’s estate to be unfair discrimination on the grounds of marital status. The Constitutional Court emphasised that, in many instances, to argue that parties who do not get married choose to do so, does not take cognisance of the vulnerable position of people, especially women, in relationships who lack bargaining power. Madlanga J stated that the Volks case was wrongly decided and, further, went on to explain that affording these rights to partners in a permanent heterosexual life partnership does not devalue the institution of marriage.
The Constitutional Court ruled that the omission of the words “surviving partner of a life partnership” from the definition of “survivor” in section 1 of the Maintenance of Surviving Spouses Act and section 1(1) of the Intestate Succession Act was unconstitutional and invalid.
In his dissenting judgment, Moegoeng CJ held that the majority did not give sound reasons as to why the decision in Volks was demonstrably wrong and that the Constitutional Court was therefore bound by this prior judgment. Moegoeng CJ further disagreed that all discrimination in favour of married couples is unfair insofar as it relates to the legal consequences of the different types of life relationships. Moegoeng CJ posed questions like, how does a life partnership come into being, what are the requirements, commitments, entitlements, or obligations that flow from it and whether it comes into being by effluxion of time. Moegoeng CJ found the discrimination on the grounds of marital status to be constitutionally valid.
In a further dissenting judgment Jafta J (Mhlantla J and Tshiqi J concurring) held that the Constitutional Court was bound by the decision in Volks and was not persuaded that the decision in Volks was wrongly decided. Jafta J went on to explain that the problem did not lie in how section 2(1) of the Maintenance of Surviving Spouses Act was regulated but rather, the problem was in Parliament’s failure to pass legislation that regulated the affairs of over three million people in permanent life partnerships. Jafta J suggested that Parliament should pass the necessary legislation to protect the rights of partners in permanent life partnerships and this recommendation did not constitute a breach of the principle of separation of powers.
Conclusion
The Constitutional Court held that Section 1(1) of the Intestate Succession Act was unconstitutional and invalid insofar as it excludes the surviving life partner in a permanent opposite-sex life partnership from inheriting in terms of the Intestate Succession Act and that the word “spouse” includes a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support.
The Constitutional Court held that Section 2(1) of the Maintenance Act was unconstitutional and invalid insofar as it excludes the surviving life partner in a permanent opposite-sex life partnership from inheriting in terms of this Act and that the word “spouse” includes a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support.
Value
A surviving life partner in a permanent opposite-sex life partnership can inherit or claim maintenance if the partners undertook reciprocal duties of support to each other in terms of the Maintenance of Surviving Spouses Act and Intestate Succession Act.
[1] Volks v Robinson[1] and Others (CCT12/04) [2005] ZACC 2; 2005 (5) BCLR 446 (CC) (21 February 2005)
