The Constitutional Court in Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51confirmed the ruling of the Western Cape High Court in October 2020 that section 1 of the Intestate Succession Act, 81 of 1987 (ISA), is unconstitutional in so far as it excludes life partners in a relationship intended to be permanent from the definition of “spouse”.
The majority of the held that unfair discrimination on the basis of marital status is prohibited by section 9 of the Constitution, and that any such discrimination is presumed to be unfair unless it can be shown not to be unfair.
Taking into consideration that there are indications that more than three million South Africans are in life partnerships, the court found that not to extend the right to inherit under intestate law from one another would be unfair discrimination on marital status.
The court also allowed an appeal against the ruling by the Western Cape High Court that it cannot find that the provisions of the Maintenance of Surviving Spouses Act, 27 of 1990 (MSSA), are unconstitutional, because it is bound by the earlier decision by the Constitutional Court in Volks NO v Robinson and Others [2005] ZACC 2. The court found that whether or not a life partnership existed is a factual question and that it can, therefore, decide on the facts that it existed in the current matter. The court was of the view that the decision in Volks does not bind it under all circumstances.
The court ordered, inter alia, that both section 1 of the ISA as well as section 2 of the MSSA are unconstitutional and that it should be read to include a partner in a life partnership complying with the test of reciprocal duties of care, maintenance and support. The order is postponed for 18 months to give Parliament the opportunity to amend the two pieces of legislation.
Comment:
Practically speaking executors should now seriously consider any claims from life partners under either of the mentioned acts and obtain legal advice in appropriate circumstances, as failure to consider them could result in further litigation.
Source: FISA