CONSTITUTIONAL COURT OF SOUTH AFRICA Jane Bwanya v Master of the High Court, Cape Town and Others
CCT 241/20 Date of hearing: 16 February 2021 ________________________________________________________________________
MEDIA SUMMARY
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The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday 16 February 2021 at 10h00, the Constitutional Court will hear an application for confirmation of an order of constitutional invalidity made by the Western Cape Division of the High Court. The High Court declared section 1(1) of the Intestate Succession Act 81 of 1987 unconstitutional and invalid to the extent that it excludes partners in opposite-sex life partnerships from inheriting in terms of that Act where partners were unmarried but undertook reciprocal duties of support. Additionally, the Constitutional Court will hear an application for a direct appeal against the High Court’s refusal to uphold a challenge to the constitutional validity of the definitions of “survivor”, “spouse” and “marriage” under section 1 of the Maintenance of Surviving Spouses Act.
In 2014 the applicant met the deceased in Camps Bay. On the evening of the same day, the deceased took the applicant on a first date and this marked the beginning of their relationship. They started spending more time together. In June 2014 the deceased professed his love for the applicant and asked her to move in with him on a permanent basis.
The applicant obliged but retained her place at the Meadows where she worked as a domestic worker. Many – including friends of the applicant and those of the deceased – were aware of the relationship. This was so because the applicant and deceased often accompanied one another to social gatherings; the partners usually hugged and kissed in the presence of their friends; and the deceased introduced the applicant as his “wife” to his friends. During the subsistence of their relationship, the deceased bought groceries, other household necessities and paid for all other expenses in the household where they resided while the applicant provided love, care, emotional support and companionship in the furtherance of their relationship. Notably, the applicant and the deceased had already considered cementing the relationship with a baby and were starting a business together.
In November 2015 the deceased asked the applicant for her hand in marriage and the applicant accepted the proposal. While so engaged, preparations to travel to Zimbabwe to meet the applicant’s family and to engage in lobolo negotiations begun. Two months before the journey to Zimbabwe, after which they would have been married, the deceased passed away. The deceased died testate having nominated his mother as the only heir to his estate. His mother, however, had predeceased the deceased and passed away in 2013. She died intestate and the deceased was the sole heir to her estate.
The applicant made two claims against the estate of the deceased. She claimed inheritance and maintenance in terms of, and under the Administration of Estates Act. She grounded her claims on the following: the deceased was her life partner and fiancé; they had been living together in a permanent, stable and intimate relationship; they were engaged to be married; their partnership was analogous to, or had most of the characteristics of a marriage; the deceased supported her financially, emotionally and introduced her to friends as his wife; they had undertaken reciprocal duties of support; and were to start a family together. Part of the evidence of the nature of their relationship is the fact that the deceased called the applicant’s brother “brother in law” and treated him as family. The applicant averred that there was a contractual duty of support, be it on the basis of an express or tacit agreement to that effect. The executor rejected both claims.
The applicant approached the High Court to challenge the constitutionality of section 1(1) of the Succession Act and section 1 of the Maintenance Act. Her basis was that the exclusion of partners in opposite-sex life partnerships by section 1(1) of the Intestate Succession Act and section 1 of the Maintenance of Surviving Spouses Act from, respectively, inheriting and claiming maintenance unfairly discriminates against her and others in her position on the grounds of gender, sexual orientation and marital status, thus violating their rights to equality and dignity and depriving them of equal protection before the law.
The High Court held in favour of the applicant in relation to the inheritance claim under the Intestate Succession Act. It declined to uphold the maintenance claim under the Maintenance of Surviving Spouses Act.
The High Court held that the facts and evidence indicated that the applicant and deceased tacitly agreed that they were in a permanent life partnership. In relation to the Intestate Succession Act, it held that legislative reforms regarding life partnerships had led to an unintended injustice, leaving heterosexual life partners unable to inherit while same-sex life partners were able to inherit. To this end, the High Court held that section 1(1) vitiates the applicant’s rights and the rights of those similarly placed, specifically the rights to equality and dignity. In conclusion, the High Court held that this exclusion does not meet the section 36 reasonableness and justifiability standard. Accordingly, it held that section 1(1) is unconstitutional and invalid to the extent of this exclusion.
In relation to the Maintenance of the Surviving Spouses Act, the High Court held that of relevance is that there must be a duty of support by “operation of law” and not a mere contractual one. Therefore, the relief sought in relation to the Maintenance of Surviving Spouses Act cannot stand based on the principle of stare decisis. It held that the
Constitutional Court’s decision in Volks v Robinson set a precedent to the effect that for liability to attach under the Maintenance of Surviving Spouses Act there must have been a reciprocal obligation to support arising by operation of law and not by agreement.
According to Volks v Robinsosn, in the case of a permanent life partnership the liability arose from an agreement between the permanent life partners, and not by “operation of law”.
The applicant now want the Constitutional Court to confirm the High Court’s declaration that section 1(1) of the Intestate Succession Act is unconstitutional. She also brings a direct appeal against the High Court’s finding in relation to section 1 of the Maintenance of Surviving Spouses Act.
In relation to section 1(1) of the Intestate Succession Act, the applicant contends that this section discriminates against her, and women similarly placed, on the grounds of gender, sexual orientation and marital status in violation of their rights to dignity and equality.
Additionally, the applicant argues that the Intestate Succession Act treats surviving opposite-sex life partners differently to those in same-sex life partnerships and affords same-sex life partners greater rights than opposite-sex life partners, despite both having the ability to marry. To this end – the applicant argues – the constitutional invalidity of section 1(1) of the Intestate Succession Act should be confirmed.
Regarding section 1 of the Maintenance of Surviving Spouses Act, the applicant argues that the Constitution requires the extension of maintenance under the Maintenance of Surviving Spouses Act to survivors in other forms of relationships, including unmarried heterosexual cohabitants who have accepted, or undertaken reciprocal duties of support. The applicant argues in this regard that this exclusion deprives her, and those similarly placed, of their right to equal protection and benefit of the law. She submits further that the High Court erred in dismissing the claim in relation to section 1 on the grounds of the Constitutional Court’s decision in Volks v Robinson. This is so because the facts and legal basis of this application are distinguishable from those in Volks v Robinson. In any event, the applicant argues that the Constitutional Court has itself stated that Volks v Robinson may need to be revisited. As such, this is the time for the Constitutional Court to revisit Volks v Robinson .
The Minister of Justice and Correctional Services, on the other hand, submits that should this Court find that rights have been infringed, he makes no attempt to justify such infringement. With regards to section 1(1) of the Intestate Succession Act, the Minister highlights that while different regimes apply to same and opposite-sex partnerships, no legislative amendments have been made to ensure sameness of treatment due to the particular position of disadvantage and vulnerability of same-sex couples. In relation to the Maintenance of Surviving Spouses Act, the Minister argues that the state’s approach to maintenance in opposite-sex life partnerships is consistent with the Constitutional Court’s judgment in Volks v Robinson. In particular, the Minister relies on the Constitutional Court’s findings that: first, an interpretation of the Maintenance of Surviving Spouses Act that would include permanent life partnerships would be unduly strained; second, the law may distinguish between married and unmarried people and in certain circumstances accord benefits to married people which it does not accord to unmarried people; third, the
distinction between married and unmarried people cannot be said to be unfair; fourth, section 1 does not infringe the right to dignity and finally, that while poor and vulnerable women do suffer disproportionately, this is not due to the Maintenance of Surviving Spouses Act.
Women’s Legal Centre Trust (first amicus) intends to draw on numerous case studies to shed light on the wide range of women to be affected by the Constitutional Court’s judgment in this matter who are not represented by the applicant’s particular circumstances and on why simply marrying to secure legal protection is not a viable option for many women. Additionally, the first amicus curiae intends to make submissions in relation to the impact of non-recognition and non-regulation of permanent opposite-sex life partnerships on women and their rights to equality and dignity as well as the failure of the State to enact legislation to protect women in domestic opposite-sex life partnerships. Finally, the first amicus contends that the Constitutional Court should take up the invitation it extended in L aubscher v Duplan to revisit its judgment in Volks v Robinson, and to determine whether that precedent – in the absence of legislative reform foreshadowed in that judgment – should continue to apply in an open and democratic society such as ours, 15 years later.
The Commission for Gender Equality (second amicus) submits that the Intestate Succession Act is unconstitutional and this matter is potentially the final step in achieving full and equal protection and recognition of all life partnerships. It intends to provide an analysis which will demonstrate the “unfortunate” status quo laid down by Gory v Kolver and the Civil Union Act. In relation to the Maintenance of Surviving Spouses Act, the second amicus argues that it is possible for the Constitutional Court to reach a conclusion of unconstitutionality on the basis of discrimination on grounds of marital status, sex and gender, whilst leaving Volks v Robinson intact.