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 to a marriage, in which they had undertaken reciprocal duties of support and had committed themselves to marrying each other.
Section 1(1) of the Intestate Succession Act 81 of 1987 (“ISA”) excludes life partners in permanent opposite-sex life partnerships from inheriting in terms of the Act. Ms Bwanya alleges that this is invalid and unconstitutional. She seeks the reading in of the words, “Or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support and had been committed to marrying each other” wherever the word “spouse” appears in the section.
Ms Bwanya also alleges that the definitions of “survivor,” “spouse” and “marriage” in section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 (“MSSA”) are unconstitutional and invalid insofar as they exclude partners in permanent opposite-sex life partnerships from claiming maintenance in terms of the Act. She seeks that where such words are referred to, the definition be read to include, “Or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support and had been committed to marrying each other.”
Factual matrix supporting the Applicant’s claims:
The deceased was Ms Bwanya’s life partner and fiancé, they had been living in a permanent, stable intimate relationship with each other over a period of approximately two years at the time of his unexpected death. Their relationship was confirmed by the deceased’s close friends and supported by many witnesses. The couple were engaged to be married to each other at a determinable future date and within a reasonable time, as soon as the lobolo negotiations between the deceased and the Applicant’s family had been concluded. Moreover, they were living together whilst preparing for their marriage and they were planning to start a family together.
In addition to a life partnership, a contractually agreed reciprocal duty of support must be established. This duty can be created either through express or tacit agreement. Taking into account all of the above as well as the content of some of the entries in the diaries of the deceased during the period of their relationship, it can be inferred that the Applicant and the deceased were undeniably in a permanent opposite-sex life partnership in which they had undertaken reciprocal duties of support and were committed to marrying each other.
Section 1(1) of the Intestate Succession act 81 of 1987 (“ISA”) excludes life partners in permanent opposite-sex life partnerships from inheriting in terms of the Act. Similarly, the definitions of “survivor,” “spouse” and “marriage” in section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 (“MSSA”) are unconstitutional and invalid insofar as they exclude partners in permanent opposite-sex life partnerships from claiming maintenance in terms of the Act.
Ms Bwanya submitted to the Court that the ISA and the MSSA, as they currently stand, infringe on her Constitutional rights to human dignity (section 10) and equality (section 9). 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.
Section 36 of the Constitution provides that if constitutional rights are limited such limitation needs to be reasonable and justifiable in an open and democratic society based upon human dignity and freedom.
Ms Bwanya argued that, based on the facts of her case, 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 MSSA.
For similar reasons, the Women’s Legal Centre and the Commission for Gender Equality argued that the ISA and the MSSA are unconstitutional.
The findings of the court
The Court held that it can be inferred that Ms Bwayna and the deceased tacitly agreed that 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 held that there is no rational basis for affording same-sex, unmarried partners benefits under the ISA and not affording heterosexual permanent life partners the same benefits. As such, the Court 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 are 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, however, dismissed the Applicant’s request to have the relevant definitions of the MSSA declared unconstitutional, on the ground that there must exist a reciprocal duty of support by operation of law in terms of the Act, and not a mere contractual one. As there was no duty of support by operation of law between the Applicant and the deceased, she did not succeed on this leg.
Jane Rushton – Claremont
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