On 28 September 2020, the Cape Town High Court handed down judgment in favour of Ms Bwanya directing that section 1(1) of the Intestate Succession Act 81 of 1987 (“the ISA”) is unconstitutional and invalid insofar as it excludes Ms Bwanya, a surviving life partner in a permanent opposite-sex life partnership, from inheriting from her deceased fiancé’s estate.
Ms Bwanya and Mr Ruch (“the deceased”) met in February of 2014 when she was waiting for a taxi in Camps Bay. The deceased reportedly “swept her off her feet” by taking her to the Cape Town train station in his car. Later that same evening, the deceased took her on their first date.
Ms Bwanya averred that, at the time of the deceased’s death, she and the deceased were partners in a permanent opposite-sex life partnership, with the same or similar characteristics as a marriage, in which they had undertaken reciprocal duties of support and had committed themselves to marrying each other.
Ms Bwanya sought an order that—
- Section 1(1) of the ISA be declared 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
- The definitions of “survivor”, “spouse” and “marriage” in section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 (“the MSSA”) be declared unconstitutional and invalid insofar as they exclude partners in permanent opposite-sex life partnerships from claiming maintenance in terms of this Act.
Section 1(1) of the ISA, as it currently stands, excludes life partners in a permanent opposite-sex life partnership from inheriting in terms of the ISA. Similarly, the definitions of “survivor”, “spouse” and “marriage” in section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 (“the Surviving Spouses Act”) excludes partners in permanent opposite-sex life partnerships from claiming maintenance in terms of this Act.
Ms Bwanya submitted to the Court that the ISA and the Surviving Spouses Act, as they currently stand, infringe on her Constitutional rights to human dignity and equality. Ms Bwanya further argued that she is being discriminated against in terms of section 9(3) of the Constitution on the grounds of sex, gender, marital status, and sexual orientation.
Ms Bwanya argued that, on her facts, she should be permitted to inherit from the deceased’s estate in terms of the ISA, and that she should be entitled to claim maintenance from the deceased’s estate in terms of the Surviving Spouses Act.
For similar reasons, the Women’s Legal Centre and the Commission for Gender Equality argued that the ISA and the Surviving Spouses Act are unconstitutional.
The Court’s Finding
The Court held that it can be inferred that Ms Bwayna and the deceased tacitly agreed they were in a permanent life partnership akin to marriage. Accordingly, it was held that Ms Bwanya and the deceased were permanent life partners who had undertaken reciprocal duties of support to one another.
The Court further held that section 1(1) of the ISA in fact discriminates against Ms Bwanya unfairly on the grounds of marital status, sexual orientation and gender, and that this discrimination has gravely affected the rights of heterosexual permanent life partners where the parties depended on each other for support. It was also held that Ms Bwanya’s constitutional rights to equality and dignity were infringed upon.
The Court dismissed Ms Bwanya’s request to have the relevant definitions of the MSSA declared unconstitutional, on the ground that there must be a duty of support by operation of law, and not a mere contractual one. As there was no duty of support by operation of law between Ms Bwanya and the deceased, she did not succeed on this leg.
- Bwanya v Master of the High Court, Cape Town and Others (20357/18)  ZAWCHC 111.
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