In the recent judgement Bwanya v The Master of the High Court (2021) ZACC 51 handed down by the Constitutional Court it has been established that women are entitled to claim from their long-term partner’s deceased estate.
Ms. Bwanya the applicant in this matter, was in a life partnership since 2014 with the deceased. The relationship comprised of most characteristics of marriage, and in 2015 the couple conceived a baby. Mr. Ruch referred to Ms. Bwanya as his wife, he paid for all household necessities, and all their household expenses whilst Ms. Bwanya provided him with love, care, and companionship. Further, Mr. Ruch proposed to marry Ms. Bwanya in 2015 and Ms. Bwanya accepted his proposal, thereafter preparations for Lobola took place. Before the finalization of the proceedings, Mr. Ruch passed away. In his will, his mother was nominated as the sole heir to his estate. However, his mother predeceased him in 2013.
Ms. Bwanya instituted a claim against Mr. Ruch’s estate for maintenance and inheritance. Herewith she based her claims on the fact that their permanent life partnership was akin to a marriage and they both had undertaken reciprocal duties to support each other throughout their relationship.
Ms. Bwanya’s application was rejected on the basis that she did not fall within the ambit of section 1(1) of the Maintenance of Surviving Spouses Act and section 2(1) of the Intestate Succession Act and was unable to claim maintenance or inheritance. Ms. Bwanya argued that the two sections were unconstitutional and invalid to the extent that it excludes surviving partners in a permanent heterosexual life partnership and violated her right to equality and dignity.
The first issue before the court was whether a surviving partner in a permanent heterosexual life partnership in which the partners undertook reciprocal duties of support is entitled to claim maintenance under the Maintenance of Surviving Spouses Act?
The second issue before the court was whether a surviving partner of a permanent opposite-sex partnership in which the partners had undertaken reciprocal duties of support is entitled to inherit from the estate of the deceased partner Intestate Succession Act?
In reality, 3.2 million South Africans cohabitate outside of traditional marriages and there is no question to what extent each category of the family must be legally protected as a family. Further, marital status is a listed ground in section 9(3) of the Constitution of the Republic of South Africa, and discrimination based on this ground is presumptively unfair. We should be wary to not readily accept as constitutional the differential treatment akin to marriage.
Ms. Bwanya and Mr. Ruch were in the process of lobola negotiations, and they were living together in an intimate, stable, and permanent relationship in which Mr. Ruch financially supported Ms. Bwanya. Further, they lived as a married couple and contemplated starting a family together whilst undertaking reciprocal duties of support. These are all characteristics proving that the Parties contemplated on getting married however, Mr. Rush passed on before finalization of such proceedings.
The court held that parties in permanent-life partnerships constitute a legitimate family structure and are entitled to respect and legal protection. The court stated that to deny permanent life partners the benefit of maintenance under section 2(1) of the Maintenance of Surviving Spouses Act constitutes unfair discrimination and is invalid. Further, it omits to include surviving partners in a permanent life partnership whose termination was caused by the death of the other whilst reciprocal duties to support each other were undertaken in circumstances where the surviving partner did not receive an equitable share in the estate of their late partner. The court further stated that these words should be included in the definition and that the word spouse and marriage include parties in a permanent life partnership. The same applies to section 1(1) of the Intestate Succession Act.
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Shervona Tia Marshall