A court has ruled that if one of the parties dies intestate - without a will - the surviving partner may inherit. Picture: African News Agency (ANA
A court has ruled that if one of the parties dies intestate - without a will - the surviving partner may inherit. Picture: African News Agency (ANA

Heterosexual couples to receive same recognition as same-sex counterparts in intestate succession

By Zelda Venter Time of article published Oct 2, 2020

Share this article:

Pretoria - In a victory for parties in a same-sex life partnership, the court has ruled that if one of the parties dies intestate - without a will - the surviving partner may inherit.

While the Constitutional Court in 2016 ruled that same-sex partners would be able to inherit their deceased partner’s intestate estate even if they were not legally married, the law had up to now not yet evolved to include opposite sex couples in the same situation.

As the law stands, a woman living with a man cannot claim spousal recognition from her deceased spouse’s estate. There are many heterosexual couples living together without the bond of marriage.

But the Western Cape High Court this week handed down judgment in the matter of Mwanya vs the Master of the High Court and others. In the matter, Jane Mwanya asked that heterosexual couples receive the same recognition.

The matter concerned the recognition of opposite-sex partnerships for the purposes of intestate succession and maintenance of surviving spouses.

The executor of Anthony Ruch’s estate did not accept Mwanya’s claim on the estate after he died in 2016 at the age of 57, as the law did not provide for this.

Ruch earlier bequeathed his possessions to his mother, but she had died several years before him.

As he was her only child, she had left all her possessions to him. He never married.

Mwanya said there was no doubt that she and Ruch loved each other and that they planned on getting married. She painted their love story to the court from where they met in 2014 while she was waiting for a taxi in Camps Bay.

She was on her way to take goods to the station to send to her family in Zimbabwe, when he stopped and offered her a lift. She said he had swept her off her feet and treated her like a princess until the day he died.

She said she mostly spent her days at his Camps Bay home, when she did not work at the family with whom she was employed.

Four months after they met he told her he loved her and was prepared to travel to Zimbabwe to pay lobolo to her family. They were planning on starting a domestic cleaning business together and he wrote in his diary that he was in the process of buying her a car, with the number plate “GI Jane”.

She said he paid for everything and that there was thus a contractual duty on him to support her, which continued when he had died.

At the time of his death, his estate was worth several million rand. Both Mwanya’s claims and that of the deceased’s chauffeur were turned down - for different reasons.

Mwanya said the Intestate Succession Act that precluded her from inheriting was outdated, and that it should not stipulate that only spouses may inherit.

Acting Judge P Magona said that in his view the issues raised here were long outstanding and cohabitants of life-long heterosexual partnerships had to be protected.

He said to avoid practical difficulties, the remedy should not apply retrospectively, but from the time that this order is confirmed by the Constitutional Court.

The Legal Resources Centre, which was a party to the proceedings, meanwhile welcomed the judgment

“We welcome also the declaration of invalidity in relation to the Intestate Succession Act as it is an important development of South African jurisprudence on the rights of opposite-sex permanent life partnerships.

“Often women in such relationships are vulnerable and suffer discrimination when the relationship is terminated by death. The decision is therefore a welcome development in advancing the rights of women to equality and dignity, specifically in relationships,” the centre said.

Pretoria News

Share this article: