Bwanya v Master of the High Court, Cape Town and Others (CCT 241/20) [2021] ZACC 51 (31 December 2021)

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Article by Chantelle Gladwin-Wood (Partner)
07 January 2022

INTRODUCTION

Census data of 2016 reveals that approximately 3.2 million South Africans cohabit outside of marriage and that this number is increasing steadily. This matter concerns two issues. The first is whether a surviving partner in a permanent heterosexual life partnership in which the partners had undertaken reciprocal duties of support is entitled to claim maintenance under the Maintenance of Surviving Spouses Act. Currently the law has been interpreted to exclude permanent heterosexual life partners from claiming maintenance from the estates of their deceased partners. The questions raised by Sachs J in Volks are at the centre of this first issue. The second issue is whether a surviving partner of a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support is entitled to inherit from the estate of the deceased partner under the Intestate Succession Act.

CONSTITUTIONAL COURT ORDER

On application for confirmation of an order of constitutional invalidity granted by the High Court of South Africa, Western Cape Division, Cape Town and on direct appeal from the High Court of South Africa, Western Cape Division, Cape Town the following order is made:

  1. The omission from the definition of “survivor” in section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 (Maintenance of Surviving Spouses Act) of 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” at the end of the existing definition is unconstitutional and invalid.
  2. The definition of “survivor” in section 1 of the Maintenance of Surviving Spouses Act is to be read as if it included the following words after the words “dissolved by death”—

“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.”

  1. The omission from the definition in section 1 of the Maintenance of Surviving Spouses Act of the following, at the end of the existing definition, is unconstitutional and invalid—

(a) “Spouse” for the purposes of this Act shall include a person in a permanent life partnership in which the partners undertook reciprocal duties of support;

(b) “Marriage” for the purposes of this Act shall include a permanent life partnership in which the partners undertook reciprocal duties of support.

  1. Section 1 of the Maintenance of Surviving Spouses Act is to be read as though it included the following at the end of the existing definition—

(a) “Spouse” for the purposes of this Act shall include a person in a permanent life partnership in which the partners undertook reciprocal duties of support;

(b) “Marriage” for the purposes of this Act shall include a permanent life partnership in which the partners undertook reciprocal duties of support.

  1. The orders contained in paragraphs 1, 2, 3 and 4 are suspended for a period of 18 months from the date of this order to enable Parliament to take steps to cure the constitutional defects identified in this judgment.
  2. Should Parliament not enact legislation as contemplated in paragraph 5, the order of invalidity that shall come into operation 18 months after the date of this order shall have no effect on the validity of any acts performed in respect of the administration of a deceased estate that has finally been wound up by the date upon which the order of invalidity comes into effect.
  3. The omission in section 1(1) of the Intestate Succession Act 81 of 1987 after the word “spouse”, wherever it appears in the section, of the words “or partner in a permanent life partnership in which the partners have undertaken reciprocal duties of support” is unconstitutional and invalid.
  4. Section 1(1) of the Intestate Succession Act is to be read as though the following words appear after the word “spouse”, wherever it appears in the section: “or partner in a permanent life partnership in which the partners have undertaken reciprocal duties of support”.
  5. The orders contained in paragraphs 7 and 8 are suspended for a period of 18 months from the date of this order to enable Parliament to take steps to cure the constitutional defects identified in this judgment.
  6. Should Parliament not enact legislation as contemplated in paragraph 9, the order of invalidity that shall come into operation 18 months after the date of this order shall have no effect on the validity of any acts performed in respect of the administration of a deceased estate that has finally been wound up by the date upon which the order of invalidity comes into effect.
  7. In the event that serious administrative or practical problems are experienced as a result of the coming into operation of paragraphs 1, 2, 3, 4, 7 and 8 of this order, any interested person may approach this Court for a variation of this order.
  8. The Minister of Justice and Correctional Services must pay the costs of the applicant in this Court, such costs to include the costs of two counsel.

Read full Judgment here: https://www.saflii.org/za/cases/ZACC/2021/51.html