‘Triumph in the Constitutional Court for Surviving Spouses in Life Partnerships’
The Constitutional Court handed down its ruling on Friday, 31 December 2021, which saw the confirmation of an order made by the Western Cape High Court declaring Section 1(1) of the Intestate Succession Act 81 of 1997 unconstitutional and invalid, and included an order regarding a claim submitted by the Applicant, on direct appeal from the Western Cape High Court, of omissions in the Maintenance of Surviving Spouses Act 27 of 1990 being unconstitutional and invalid.
The Applicant was one Jane Bwanya, a former domestic worker and fiancé of the deceased. The Applicant and the deceased had resided together in a committed life partnership in their home in Camps Bay. The deceased passed away testate, leaving his entire estate to his mother, who had died before him. The Applicantapproached the High Court for a ruling against the deceased’s estate as a “surviving spouse”, having previously been denied such by the estate executor.
The Court was tasked with considering the Applicant’s first claim which challenged the constitutionality of Section 1 of the Intestate Succession Act, insofar as it related to the right of surviving life partners to an inheritance from a deceased partner’s estate, and the second claim, where the Applicant contested the constitutionality of the definition of ‘Survivor’ in Section 1of the Maintenance of Surviving Spouses Act, on the premise that the definition refers only to a surviving “spouse” party to a “marriage” that is ultimately dissolved through the death of a partner. This definition was argued to exclude heterosexual partners in permanent life partnerships from instituting a claim for maintenance.
The Applicant’s claims against the estate of the deceased were based mainly on the fact that bothpartners had undertaken reciprocal duties of support towards one another and that their relationship was comprised of most of the characteristics associated with a legal marriage.
The High Court proceeded to dismiss the Applicant’s first claim, based on a challenge to the constitutionality of the Maintenance of Surviving Spouses Act, but deemed the Intestate Succession Act to be unconstitutional and invalid, insofar as it related to the claim by the Applicant regarding inheritance.
As with all challenges of constitutional validity of Parliamentary Acts, the final decision is always made before the Constitutional Court. In highlighting the importance of considering the constitutional issue decided upon by the High Court, Justice Madlanga notably stated:
“It cannot be gainsaid that the constitutional challenge is of great import. It affects a substantial number of South Africans, particularly vulnerable women. I hope to demonstrate that some of these women find themselves in permanent life partnerships not out of true choice. Also, comprehensive and well prepared arguments were advanced before us. I must conclude that it is in the interests of justice to determine this challenge.”
In confirming the order of the High Court of constitutional invalidity and on direct appeal, the Constitutional Court ordered the definition of “survivor” in Section 1 of the Maintenance of Surviving Spouses Act to be read as including the following:
“…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.”
Similarly, the Court ordered that in terms of Section 1(1) of the Intestate Succession Act, where the word “spouse” appears in said section, the following words shall immediately follow: “or partner in a permanent life partnership in which the partners have undertaken reciprocal duties of support”.
Parliament is subsequently afforded 18 months to takethe necessary steps to remedy the constitutional issues raised in the judgment, for which time the orders shall be suspended.