Bwanya also argued that the Intestate Succession Act treats surviving opposite-sex life partners differently to surviving same-sex life partners, despite both having the ability to marry. Picture: Pexels
Bwanya also argued that the Intestate Succession Act treats surviving opposite-sex life partners differently to surviving same-sex life partners, despite both having the ability to marry. Picture: Pexels

ConCourt gives Parliament 18 months to change succession law to include life partnerships

By Mwangi Githahu Time of article published Jan 3, 2022

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Cape Town - Parliament has been given 18 months to change sections of the Intestate Succession Act and Maintenance of Surviving Spouses Act which the Constitutional Court has found to be unconstitutional with regard to life partnerships.

The order emerged in a judgment in an application for confirmation of an order of constitutional invalidity of section 1(1) of the Intestate Succession Act made by the Western Cape Division of the High Court in a case brought by former domestic worker Jane Bwanya, who had been in a relationship with the late multi-millionaire Anthony Ruch.

Bwanya argued that this Act discriminates against her and women similarly placed on the grounds of gender, sexual orientation and marital status.

Bwanya also argued that the Intestate Succession Act treats surviving opposite-sex life partners differently to surviving same-sex life partners, despite both having the ability to marry.

The majority judgment, penned by Judge Mbuyiseli Madlanga, stressed that permanent life partnerships were a legitimate family structure and thus deserving of respect and, given recent developments of the common law, entitled to legal protection.

“The (incontrovertible) facts of this case reveal that Bwanya, who is originally from Zimbabwe, and the deceased, Ruch, were involved in a relationship that comprised most, if not all, characteristics of a marriage.

“They met and entered into a romantic relationship in 2014. Later that year, Ruch asked Bwanya to move in with him on a permanent basis and she obliged.

“From then onwards they split their time between Ruch’s Camps Bay and Seaways properties. Bwanya retained her place at the Meadows where she was employed as a domestic worker.”

He said Bwanya’s and Ruch’s friends were aware of the relationship and the pair used to accompany each other to various social gatherings. He introduced her as his wife to his friends.

Two months before they were to commence lobola negotiations, Ruch died intestate having nominated his mother who had died in 2013 as the only heir to his estate.

Bwanya had lodged two claims in terms of the Administration of Estates Act against the deceased’s estate.

One claim, founded on the Intestate Succession Act, was for inheritance. The other, pegged on the Maintenance of Surviving Spouses Act, was for maintenance.

The executor of Ruch’s estate rejected both claims on the basis that the Intestate Succession Act and Maintenance of Surviving Spouses Act conferred benefits only on married couples, not partners in permanent life partnerships.

In a dissenting judgement, outgoing Chief Justice Mogoeng Mogoeng said the fundamental differences between marriage and permanent life partnerships necessitated the existence of different regimes for each with regard to maintenance and inheritance.

A third judgment, penned by Judge Chris Jafta, endorsed the first judgment that the declaration of invalidity of the act, but disagreed that the appeal deserved to be successful.

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Cape Argus

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