Legal Articles

In a recent landmark ruling, the Constitutional Court (Concourt) confirmed the invalidity of Section 1 (1) of the Intestate Succession Act 81 of 1987, as well as Section 1 of the Maintenance of Surviving Spouses Act 27 of 1990. The initial application had been brought before the Western Cape division of the High Court whereby the Applicant (surviving life partner) sought an order against the Executor’s rejection of a claim for inheritance and maintenance against the deceased estate.

The Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution), provides for fundamental human rights accorded to all people in the republic. Amongst those rights, equality, dignity and freedom are some of the most quoted. Non-discrimination on the grounds listed in section 9 (3) forms a fundamental pedestal on which our constitutional democracy is anchored upon. This is the very same reason why, upon application, the Courts are prepared to disapprove legislation that perpetuates unfair discrimination in light of fundamental human rights as espoused in the Constitution.  

Jane Bwanya v The Master of the High Court, Cape Town CCT241/20

In the case of Jane Bwanya v The Master of the High Court, Cape Town CCT241/20, the Applicant had lived together with the deceased in a permanent domestic relationship and were on the verge of negotiating lobola when the deceased passed away. The deceased had executed a Will prior, providing for his mother to inherit his estate. As fate would have it, his mother had predeceased him. The Applicant then lodged claims for inheritance and maintenance against the estate, which the Executor turned down citing that the claims were invalid as there was no valid marriage. The Applicant then approached the Western Cape division of the High Court for an Order to declare section 1 (1) of the Intestate Succession Act as constitutionally invalid, as well as Section 1 of the Maintenance of Surviving Spouses Act, wherein the definition of the word ‘survivor’ was challenged.

The High Court Decision

The Western Cape division of the High Court decided that Section 1(1) of the Intestate Succession Act was unconstitutional, in so far as it did not recognise domestic life partnerships with regard to intestate succession. However, it rejected the challenge to Section 1 of the Maintenance of Surviving Spouses Act.

The Constitutional Court

The Applicant brought an application for confirmation of the High Court’s declaration of constitutional invalidity of section 1(1) of the Intestate Succession Act, citing that it discriminates unfairly based on gender, sexual orientation and marital status, thereby violating the rights to equality and dignity. With regard to sexual orientation, case law previously decided had found in favour of same-sex life partners when it comes to intestate succession (Laubscher N.O. v Duplan and Another [2016] ZACC 44).

Pertaining to the second challenge and on direct appeal from the High Court (WC), the Applicant argued that the Constitution requires that the benefit of maintenance be extended even to other relationships such as survivors in permanent opposite-sex life partnerships, where reciprocal duties of support had been undertaken.

The majority judgment upheld that Section 1 of the Maintenance of Surviving Spouses Act is unconstitutional to the extent that it excludes 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.” Therefore, the words must be read into the definition and Parliament must cure the constitutional defect within 18 months, during which the declaration of invalidity will be suspended. 

Van Deventer & Van Deventer Inc. - Estate Administration Attorneys Johannesburg

South Africa’s constitutional project has come a long way and it is still going through transformation as society adapts to changes. In fact, the concept of law must indeed answer to the changing needs of the society in which it governs, so as not to run the risk of redundancy.

The Court had confirmed that life partners in same-sex life partnerships are entitled to inherit intestate in the case of Gory v Kolver 2007 (4) SA 97 (CC). It puts paid therefore, that the same benefit and recognition ought to be afforded to surviving partners in opposite-sex life partnerships without which it amounts to unfair discrimination based on sexual orientation. This in turn, violates the rights to equality and dignity against heterosexual life partners. More recently in the case of Laubscher N.O. v Duplan and Another [2016] ZACC 44, the Court upheld the right of the surviving partner in a same sex-life partnership to inherit in the estate of the deceased.

The Concourt therefore, in this case, filled the lacuna in our law with regard to intestate succession of surviving partners in heterosexual life partnerships. 

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