Bwanya Vs Master of The High Court Cape Town and Others CCT 241

Bwanya vs Master of the High Court Cape Town and Others CCT 241/20
Cohabitation and death
Inheritance
On 31 December 2021 the Constitutional Court issued its judgment in the matter of Bwanya vs
Master of the High Court Cape Town and Others CCT 241/20. The Applicant in this matter
challenged the exclusion of opposite-sex couples from the operation of the Intestate Succession
Act 81 of 1987 (ISA) for inheritance without a will and the Maintenance of Surviving Spouses
Act 27 of 1990 (MSSA) for failing to make provision for anyone who is not married to claim
maintenance when a relationship is terminated by death.
The Women’s Legal Centre Trust was admitted as an amicus curiae (friend of the Court) to
assist court to fully understand the gender contexts, intersectional nature of the discrimination
faced by black women especially in South Africa. The Trust was also allowed to put critical and
relevant evidence before the Court based on our experience with women and permanent
opposite-sex life partnerships which the Court relied on in its judgement.
The Applicant was in a permanent opposite-sex life partnership and her partner died without a
will. In terms of the ISA, she could not inherit from her partner because they were not married.
She was also not able to claim maintenance in terms of the MSSA because opposite-sex life
partners, like the Applicant, are not considered spouses in terms of this law.
As a result, the Applicant filed an application challenging the constitutionality of both the ISA
and the MSSA for failing to recognise and include opposite-sex life partners who have
undertaken reciprocal duties of support for the benefit of inheritance and maintenance
respectively. The applicant filed the application in her own interest but also on behalf of all other
women in similar circumstances such as her. In its decision the Court found in favour of the
applicant (and all other women in similar circumstances) on both issues.
In respect of maintenance for surviving spouses, the Court found that section 2 of the MSSA was
unconstitutional as it unfairly discriminated against unmarried couples by limiting its benefits
only to married spouses. The court posited that the critical question to be answered within this
context is whether the institution of permanent life partnership is, indeed, deserving of
constitutional and legal protection. The Court recognised that permanent life partnerships are
widely used in South Africa with at least 3,2 million in such relationship as of 2016.
Accordingly, they must be accorded the necessary respect as they are an institution through
which many people live, give and receive love in return, form families and enjoy some of life’s
myriad pleasures with those they love among other things. The Court emphasized that all
categories of families in South Africa are deserving of legal protection.
In coming to its decision, the Court had to consider whether to follow its previous decision
of Volks vs Robinson case which had primarily held that if you choose not to get married, you
cannot benefit from the institution that you were not part of. The Court decided to depart from
the Volks decision as there had been developments in common law in familial and spouse-like
relationships that were afforded legal protection. Secondly, the Court foregrounded its finding to
depart from the Volks decision on the vulnerability of women in permanent opposite-sex life
partnerships and recognized this as one of the central reasons why some women find themselves
in permanent life partnerships. Given the patriarchal nature of South African society and the
evidence placed before it by the Trust, the Court recognized that the lived reality of millions of
women in our country did not enable them to make choices free from discrimination on the
question of marriage. Further based on the evidence before Court, it was clear that men
benefitted from the non-recognition afforded to the domestic partnerships in which they were
living. Women therefore are often forced to be content with the man’s choice and stay in
domestic partnerships.
Based on this reasoning, the Court found that that the definition of “survivor” in section 1 of the
MSSA is unconstitutional and invalid insofar as it excludes the surviving partners of a permanent
life partnership terminated by the death where the partners had undertaken 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 the meaning of survivor include
permanent life partnerships. The words “spouse” and “marriage” in the MSSA were 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.
In relation to the issue of intestate succession (where a person dies without a will), the Court
found that the exclusion of surviving permanent opposite-sex life partners from enjoying benefits
under section 1(1) of the Intestate Succession Act unfairly discriminated against such couples
based on their marital status. Here too, the Court recognized the vulnerability of women and the
patriarchal nature of our society which forces women to live with the decisions and choices of
men on whether to get married or not because of primarily financial power imbalances among
others. Accordingly, the Court emphasized the need to protect women in permanent opposite sex
life-partnerships. The court confirmed the declaration of invalidity of section 1(1) of the Intestate
Succession Act made by the High Court and suspended it for 18 months to allow parliament to
remedy the unconstitutionality.
The Court's finding in the Bwanya case is a very important step since it is based on the lived
reality and experiences of the most vulnerable women in South Africa.

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Bwanya vs Master of the High Court Cape Town and Others CCT 241/20

Cohabitation and death

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