The Constitutional Court recently confirmed the October 2020 ruling of the Western Cape High Court that section 1(1) of the Intestate Succession Act is unconstitutional in so far as it excludes life partners in a relationship intended to be permanent, as per the definition of “spouse”. The Court ordered parliament to amend two laws to recognise the right of a surviving life partner in any relationship to inherit and claim maintenance after the other partner dies.

The case arose after Jane Bwanya challenged the constitutionality of the Intestate Succession Act and the Maintenance of Surviving Spouses Act for discriminating on the basis of marital status.

Ms Bwanya, originally from Zimbabwe, and the deceased, Mr Ruch, were involved in a relationship that comprised most, if not all, characteristics of a marriage. They met and entered into a romantic relationship in 2014. Later that year Mr Ruch asked Ms Bwanya to move in with him on a permanent basis. Ms Bwanya obliged. From then onwards, they split their time between Mr Ruch’s Camps Bay and Seaways properties. Ms Bwanya retained her place at the Meadows where she was employed as a domestic worker. Ms Bwanya’s and Mr Ruch’s friends were aware of the relationship. The pair used to accompany each other to various social gatherings. Mr Ruch introduced Ms Bwanya as his wife to his friends. They often hugged and kissed in the presence of other people. Mr Ruch referred to Ms Bwanya’s brother as his brother-in-law.

In November 2015 Mr Ruch proposed to marry Ms Bwanya. She accepted the proposal. Preparations to travel to Zimbabwe began so that lobola negotiations could commence and Mr Ruch could meet Ms Bwanya’s family. These preparations involved selling the Seaways property. The proceeds were to be used to pay lobola and purchase a vehicle for the trip to Zimbabwe. The plan was for the pair to get married after the trip. On 23 April 2016, two months before the scheduled journey, Mr Ruch passed away unexpectedly. In his will he had nominated his mother as the sole heir to his estate. However, his mother had predeceased him.

Ms Bwanya lodged two claims against Mr Ruch’s estate in terms of the Administration of Estates Act. They were for maintenance in terms of the Maintenance of Surviving Spouses Act and for inheritance in terms of the Intestate Succession Act. She based the claims on the fact that her permanent life partnership with Mr Ruch was akin to a marriage and that they had undertaken reciprocal duties of support towards each other.

The basis of the claims was the following: the deceased was her life partner, they had been living together in a permanent, stable, and intimate relationship, and they were engaged to be married. Moreover, their partnership was analogous to, or had most of the characteristics of, a marriage: the deceased supported her financially and emotionally, and introduced her to friends as his wife. Furthermore, they had undertaken reciprocal duties of support and were to start a family together.

The executor of the deceased’s estate rejected both claims on the basis that the Intestate Succession Act and Maintenance of Surviving Spouses Act conferred benefits only on married couples, not partners in permanent life partnerships.

The majority judgment of the Constitutional Court, penned by Madlanga J, stressed that permanent life partnerships are a legitimate family structure and are deserving of respect and, given recent developments of the common law, entitled to legal protection. The judgment held that the definition of “survivor” in section 1 of the Maintenance of Surviving Spouses Act is unconstitutional and invalid insofar as it omits the words “and includes the surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate”. The judgment ordered that these words be read into the definition.

“Spouse” and “marriage” are also declared to include a person in a permanent life partnership. The declaration of invalidity was suspended for 18 months to afford Parliament an opportunity to cure the constitutional defect.

Additionally, the majority judgment confirmed the declaration of invalidity of section 1(1) of the Intestate Succession Act made by the High Court. Likewise, this declaration of invalidity was suspended for 18 months to afford Parliament an opportunity to cure the constitutional defect.

The Bwanya judgment is a victory for permanent life partners, who now qualify as intestate heirs.

If you wish to avoid uncertainty and prevent unintended consequences, then the best solution remains to execute a professionally drafted will and update it as and when necessary. Having a will is always extremely important. A valid will  would have avoided the necessity for a court application in the case presented above.

Executors should henceforth consider any claims from life partners under either of the mentioned Acts, as failure to do so could result in litigation.

Reference List:

·         Intestate Succession Act, 81 of 1987

·         Maintenance of Surviving Spouses Act, 27 of 1990

·         Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51

·         https://collections.concourt.org.za