INTRODUCTION
In terms of our South African legal principles unmarried partners were precluded from inheriting and/or lodging a claim of “spousal” maintenance against their respective partner’s deceased estates. This discriminatory notion was by virtue of the Legislature’s archaic drafting which did not consider opposite-sex life partners as spouses in terms of these laws.
This position has been altered in the recent decision of Bwanya v The Master of the High Court and Others1 where the Court discussed the legal implications and status of a surviving life partner in respect of the proceeds of her deceased partner’s estate.
BACKGROUND
The Applicant and the deceased were involved in a permanent heterosexual life partnership for nearly two years. Prior to his death the deceased had proposed to the Applicant and they had intended on entering into lobolo negotiations. The Court had listened to testimonies from the Applicant and friends of the deceased where it became undisputed that the partners had been living in a permanent, stable and intimate relationship; had undertaken reciprocal duties of support on a traditional basis (wherein the deceased supported the relationship financially and the Applicant on a more emotional basis). Ultimately, there “existed a contractual obligation of support”.2 Additionally, the Court noted diary entries of the deceased where he indicted that they had plans to start a domestic cleaning business and had dreams of starting a family.
COURT APPLICATION
Prior to his death, the deceased had concluded a Will, wherein he bequeathed his entire estate to his mother who had subsequently passed away. This resulted in the deceased’s estate being regulated by the Intestate Succession Act. As the Applicant was barred from inheriting from the deceased’s estate, the Applicant launched an application to challenge the constitutionality of the Maintenance of Surviving Spouses Act 3and the Intestate Succession Act.4 The Applicant argued that the Acts were discriminatory on the basis of marital status, a fundamental right that is protected by Section 9(3) of the Constitution.
1 Bwanya v Master of the High Court, Cape Town and Others (20357/18) [2020] ZAWCHC 111.(28 September 2020).
2 Para 27 Bwanya supra
JUDGMENT
On the 28th September 2020, the Western Cape High Court declared Section 1(1) of the Intestate Succession Act unconstitutional and ordered that the legislation be amended to include the words “or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support” after the word spouse wherever it appears.
CONCLUSION
This more modern interpretation of existing principles is welcomed and considered a vital improvement for our legal system especially considering the position of many South African life partners, who have been left vulnerable when their partner passes away. They are now in a position to claim from their deceased partner’s estate. This may have additional ramifications with regard to Pensions and similar claims and we will await future judgments or rulings in this regard.
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3 Act 27 of 1990.
4Act 81 of 1987.