30 September 2020
Victory for opposite-sex life partners as the court recognizes their right to inherit from each other
The Western Cape High Court handed down its judgment in the matter of Bwanya v The Master of the High Court & Others yesterday. The matter concerned the recognition of opposite-sex life partnerships for the purposes of intestate succession and maintenance of surviving spouses. The LRC represented the Commission for Gender Equality (CGE) as amicus curiae in the matter.
The Applicant in this matter was in a permanent opposite-sex life partnership and her partner died without a will. In terms of the Intestate Succession Act 81 of 1987 (ISA) and the Maintenance of Surviving Spouses Act 27 of 1990 (MSSA), opposite-sex life partners, like the Applicant, could not inherit and/or claim maintenance respectively as they were not considered spouses in terms of these laws.
As a result, the Applicant filed an application challenging the constitutionality of both the ISA and the MSSA for failing to recognize and include heterosexual life partners who have undertaken reciprocal duties of support as spouses for the benefit of inheritance and maintenance respectively.
The LRC welcomes yesterday’s judgment, in which the Court declared that section 1(1) of the ISA is unconstitutional and invalid insofar as it excludes the surviving life partner in a permanent heterosexual life partnership from inheritance. The Court held that the ISA is to be read as though the following words appear after the word spouse, “or a partner in a permanent opposite life partnership in which the partners had undertaken reciprocal duties of support.” In relation to the MSSA, the Court held that the finding by the Constitutional Court in the Volks vs Robinson judgment was binding on the court as a lower court so it could not make a finding in favor of the applicant in this regard. The declaration of invalidity will have to be referred to the Constitutional Court for confirmation.
We welcome also the declaration of invalidity in relation to the ISA as it is an important development of the South African jurisprudence on the rights of opposite-sex permanent life partnerships. Often women in such relationships are vulnerable and suffer discrimination when the relationship is terminated by death. The decision is therefore a welcome development in advancing the rights of women to equality and dignity specifically in relationships.
Issued by the Legal Resources Centre
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