IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO: CCT 12/04 In the matter between:
RICHARD GORDON VOLKS N.O. Appellant
and
ETHEL ROBINSON First Respondent
WOMEN’S LEGAL CENTRE TRUST Second Respondent MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
Third Respondent
THE MASTER OF THE HIGH COURT Fourth Respondent
and
CENTRE FOR APPLIED LEGAL STUDIES Amicus Curiae
SUBMISSIONS ON BEHALF OF THE AMICUS CURIAE IN RESPONSE TO APPELLANT’S REPLYING NOTE
INTRODUCTION
1. On 20 May 2004, the above matter was argued before the above Honourable Court.
2. At the hearing of the matter, the appellant indicated that he had abandoned his appeal against the declaration of invalidity made by Davis J in the Court a quo.
He however persisted with the appeal against the relief granted by Davis J.
3. The proffered reason for the abandonment of the appeal was the evidence tendered by the amicus relating to cohabitation in South Africa. On being questioned by the Court, counsel for the appellant assured the Court that the appellant did not dispute the evidence presented by the amicus and that such evidence complied with the rules of this Court and was accordingly properly before the Court.
4. In accordance with the above, counsel for the appellant informed the Court that he wished to limit the scope and ambit of the submissions made on behalf of the appellant to addressing the issue of appropriate relief.
5. Towards the conclusion of the hearing, counsel for the appellant very summarily made submissions in reply. Due to time constraints the appellant was requested by the Chief Justice to reduce those submissions to writing and the other parties were afforded time to respond to such submissions.
6. Rather than respond to each of the ‘ten points’ which the replying note filed by the appellant purports to deal with (most of which were not canvassed by the appellant during main argument), these supplementary submissions will only respond to the following issues raised by the appellant:
6.1. Whether the existence of a reciprocal duty of support is dependant on the existence of an express and tacit contract;
6.2. The basis on which the appellant contends the legislation is unconstitutional;
6.3. Whether the evidence tendered by the amicus is properly before the Court;
and
6.4. The question of relief.
The existence of a reciprocal duty of support
7. The amicus is in agreement with the main submission of the appellant that the existence of a reciprocal duty of support during the lifetime of the deceased should be a precondition for a valid claim for maintenance under the Maintenance of Surviving Spouses Act (“the Act”) by a surviving partner in a domestic partnership.
8. However, the amicus submits that this reciprocal duty of support should not be found to arise from an express or tacit contract between the partners, as contended for by the appellant. Instead, the amicus submits that a factual finding
(by a Court or an executor) that a ‘permanent life partnership’ exists necessarily implies the existence of a reciprocal duty of support.
9. This means that a duty of support is inferred from a permanent life partnership, the existence of which depends on the facts of a particular case.1
10. On this approach the amicus submits that the order given by the learned Davis J in the court a quo incorporates the requirement of the existence of a reciprocal duty of support.
11. At the hearing of this matter both the appellant and the first and second respondents moved for a variation of the ‘reading in’ order granted by Davis J to one along the lines of that granted by this Court in Satchwell v President of the RSA 2002 (6) SA 1 (CC) which incorporates the words “permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support”.
12. The amicus submits that such a ‘reading in’ would be appropriate provided this Court does not tie the test for the existence of a reciprocal duty of support to a test under the law of contract for the existence of express or tacit terms. This is due to the following:
12.1. The notion of a duty of support does not arise ex contractu but originates in the recognition that family members depend on each other financially. The duty to support arises from the nature of the
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relationship2 and cannot be terminated at the whim of the supporting party. The law steps in to protect the weaker family member.3
12.2. As set out in the main submissions filed on behalf of the amicus, principles of the law of contract should not readily be applied to family law since contractual principles proceed from the assumption that the contracting parties are on an equal bargaining footing. As the research submitted by the amicus indicates, women and men in permanent life partnerships have an unequal power relationship. The main submissions filed on behalf of the amicus deals with reasons for and impact of the inequality between men and women.
The basis on which the appellant contends that the legislation in unconstitutional
13. At the hearing of this matter the appellant contended that section 1 of the Act was unconstitutional because it did not cater for women whose circumstances were similar to that of the women who formed part of the CALS research. This, argued the appellant, was because their socio-economic circumstances resulted in these women having a lesser degree of freedom of choice than other women (like the first respondent).
14. The appellant now contends that the underinclusiveness which renders the section unconstitutional arises from the exclusion of monogamous heterosexual
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cohabitating relationships, in which the partners unquestionably undertook reciprocal duties of support during their relationship. The appellant then cites an example, in paragraph 7 of his replying note, to illustrate his point.
15. The amicus is concerned with the example used by the appellant since it sets up the ideal permanent life partnership as one entered into by a middle class couple who have knowledge of and access to the legal mechanisms to define their relationship contractually. As illustrated by the CALS research, in the South African context, such a couple is clearly the exception rather than the rule.
16. The amicus submits that it would be manifestly unfair to restrict the benefits of the Constitution to those people who already have wealth, access and opportunities to protect themselves legally. In S v Williams4 this Court held that it is incumbent on structures set up to administer justice to ensure that, as far as possible, the rights of the weakest and the most vulnerable members of our society are defended and not ignored
17. The approach advocated by the appellant which involves limiting the class of persons entitled to maintenance would also create an unfairly discriminatory distinction between permanent same sex life partners and heterosexual life partners in that same sex life partners (in terms of the Satchwell judgment) would be able to prove a reciprocal duty of support without evidence of a contract while heterosexual would have to adduce evidence of a contract to establish a reciprocal duty of support.
3 B Goldblatt, Satchwell v President of the RSA (Case note) SAJHR, vol 19, part 1, 2003, 118-123
18. The amicus submits further that this issue must be looked at in the context of the more than two million South Africans who describe themselves as ‘living together like married partners’.5 For almost all of these people, their relationships are entered into without ceremonies or legal documents. The nature of their relationships needs to be evinced from the conduct of the partners in the partnerships.
19. Many men do support women financially within domestic partnerships but would deny that they have attracted any continuing obligation towards these women.
The duty of support is a legal vehicle designed to force wealthier parties to maintain poorer ones. It arises where a relationship of dependency has been created6 and is there to assist the dependent party who needs ongoing support despite the unwillingness of the other party to give this. This equitable feature of our common law (going back to the Roman-Dutch law) should be nurtured in our constitutional era and extended (as the common law has been over the years) to the new family formations that exist in South Africa today.
Evidence submitted by the amicus curiae
20. In terms of rule 31(1) of the rules of this Honourable Court “Any party to any proceedings before the Court and an amicus curiae properly admitted by the Court in any proceedings shall be entitled, in documents lodged with the
4 1995 (3) SA 632 (CC) at para 8
5 Statistics South Africa, Census 2001, ‘Sex and Population Group by marital status’ provided in the bundle of authorities of the amicus
Registrar in terms of these rules, to canvass factual material that is relevant to the determination of the issues before the Court and that does not specifically appear on the record: Provided that such facts-
(a) are common cause or otherwise incontrovertible; or
(b) are of an official, scientific, technical or statistical nature capable of easy verification.”
21. In the present matter, none of the parties in these proceedings disputed the evidence submitted by the amicus. In fact, at the hearing of the matter, counsel for the appellant was at great pains to point out to the Court that the evidence of the evidence was properly before the Court and, furthermore, that this justified a abandonment of a substantial portion of the appeal.
22. The amicus, while never contending that the evidence was incontrovertible, does contend that the evidence is common cause between the parties. In any event, the amicus submits that the nature of the evidence is such that this Honourable Court can take judicial notice of the contents of the research report.
23. In relation to the status of the evidence in the appeal record, it is submitted that once the evidence meets the requirements of rule 31, such evidence forms part of the record. In this regard this Honourable Court is referred to the matter of S v Jordan7 which, like the present matter, involved a combination of appeal and confirmation proceedings. In that matter the amici placed voluminous evidence
Trust & Assur Co Ltd 1954 (3) SA 667 (C)
7 S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici
before this Court in relation to the sex work industry in South Africa. Such evidence formed part of the record of proceedings.
24. In response to paragraph 23 of the appellants replying note, the amicus points out that the ‘further bundle’ referred to was merely a collation of the authorities relied upon by the amicus in its main written submissions. This bundle was served on the appellant's attorney's Johannesburg correspondents at 09h00 on 19 May 2004.
Remedy
25. The amicus reaffirms its standpoint that this matter calls for immediate relief to be granted consequent upon a declaration of invalidity. The amicus submits that neither the appellant nor the third and fourth respondents have put sufficient information before this Court to warrant a suspension of declaration of invalidity.8
26. In relation to the impact of any order granted by this Court on the law reform process currently underway, the amicus submits that such a process can only benefit from the views of this Court on the unconstitutionality of section 1.9 Should this Court wish to mitigate the impact on the law reform process of any specific relief granted in this matter, a statement to that effect in the judgment would be preferable to allowing a patently unconstitutional dispensation to remain on the statute books.
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27. A further factor to take into account is that the law reform process is seized with investigating all aspects of domestic partnerships as opposed to the narrower issue which this Court is seized with, namely whether surviving partners of permanent life partnerships should be entitled to claim maintenance under the Act.
28. The amicus also aligns itself with the submissions advanced on behalf of the first and second respondents that retrospective operation of a declaration of invalidity should be limited to estates which have not yet been finally wound up. This is consistent with section 2(2) of the Act which provides that a survivor shall not have a right of recourse against any person to whom money or property has been paid, delivered or transferred.
29. However the amicus emphasises that, given the nature and purpose of the Act in question10, this Court should endeavour to have as many people as possible benefit from its declaration of invalidity.
K Pillay
Chambers, Sandton May 25, 2004
9 See Freedom of Expression Institute v President of the Ordinary Court Martial NO 1999 (3) BCLR 261 (C) at 275
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