Pretoria - A woman’s legal bid for the court to declare her and her now-deceased partner life partners – which would mean she could benefit from his estate – has failed as the court found that, although they were lovers, he had been married to his now-former wife until shortly before he died.
The applicant initially lodged an application in the Gauteng High Court, Johannesburg, to declare that her relationship with her partner constituted a customary marriage. She later withdrew the application.
She then asked for an order declaring that she and Refilwe Kekana were in a permanent life partnership undertaking reciprocal duties of support.
In court papers she said she and the deceased had met in November 2017. They agreed that they wanted a committed relationship, to grow old together and be separated only by death.
In March 2018, they had moved in together. Kekana’s family had initiated the lobolo process. In May 2018, he and his sister had travelled to East London to meet her family and had paid R19 000 lobolo, with an outstanding amount of R11 000. In September 2018, there was a welcoming ceremony at the Kekana’s family home in Soshanguve; her mother and friend travelled from East London to attend.
Most of the deceased’s family had attended the gathering, except for a daughter of the deceased, who refused to accept their relationship. After the lobolo had been paid, they had regarded themselves as husband and wife.
In December 2018, they had gone on a ship cruise to celebrate their love.
A month later, they had attended a marriage preparation class by a reverend of the Methodist Church, who had blessed their relationship. Shortly afterwards, they had bought a home.
In August 2020, Kekana had performed a small ritual in the house to introduce the new home to their respective ancestors. They had also transferred money into each other’s accounts to mutually support each other.
In January 2021, the deceased had died intestate. Thus, the applicant said, they had been life partners.
The deceased’s daughter denied that. She said her father had never mentioned their lifetime partnership to her. She had regarded the applicant as her father’s girlfriend. She said her mother had been married to her father when the lobolo negotiations were concluded. Thus, she could not claim to be the deceased’s surviving spouse.
The applicant referred to the earlier Constitutional Court judgment extending the definition of a surviving spouse to include the surviving partner of a permanent life partnership.
She said that under the judgment, she was entitled to the deceased’s estate as, at the time of his demise, they had been in a permanent life partnership and had been together for three years, living in the property they had bought together and financed by the deceased.
But Acting Judge N Mazibuko said the question was whether the applicant and the deceased were competent to enter into a marriage or a permanent life partnership. All marriages, including permanent life partnerships, were equal in the eyes of the law and enjoyed recognition and acceptance by the public, he said.
But Kekana and his now-former wife had married in July 1994 and divorced only in 2020 – 10 months before his death.
“The partnership began while the valid marriage between the deceased and his erstwhile wife still subsisted,” the judge said. The fact that the public, friends and family had regarded and accepted them as married or permanent life partners, did not matter.
“That does not make their relationship equal to a marriage or a permanent life partnership to be considered partners who had undertaken reciprocal duties of support.
“The regard the deceased’s mother had towards the applicant, as she averred that they accepted her as their daughter-in-law, cannot assist the applicant. The deceased’s mother could not have two daughters-in-law, unless the deceased had chosen to involve the two women in a polygamous marriage and followed the appropriate steps and procedures as provided by the law.”
The judge said the decree of divorce, in March 2020, also did not assist the partners in automatically validating their relationship, nor for the applicant to rely on that.
The judge said that when the applicant and the deceased promised “until death do us part” when they moved in together in 2017, the deceased had not been competent to conclude a marriage or familial relationship, as he was married and the marriage was dissolved only in March 2020. Thus, the applicant was not the surviving spouse.