Bwanya v The Master of the High Court, Cape Town (Women's Legal Centre Trust and Commission for Gender Equality Amicus Curiae)

• Jurisdiction: South Africa
• Judge: P Magona AJ
• Judgment Date: 28 September 2020
• Docket Number: 20357/18
• Hearing Date: 28 September 2020
• Court: Western Cape Division, Cape Town
• Citation: 2020 JDR 2062 (WCC)

Magona AJ:

Introduction:

The Applicant:

[1]

The Applicant seeks an order that is premised on certain provisions of the Intestate Succession Act 81 of 1987 (ISA) and the Maintenance of Surviving Spouse Act 27 of 1990 (MOSSA), being declared unconstitutional in that her claims for a share of the estate of the late Anthony Ruch ("the deceased") and / or maintenance from his estate are currently not recognised nor provided for under these Acts.

[2]

The relief sought is couched in the following terms:

1.

Condoning the Applicant's failure to launch this application within 30 days of the First Respondent's notification dated 20 July 2018 in terms of which it was recorded that the Second Respondent was not prepared to accept the Applicant's claim of an "alleged universal partnership" with the late AS Ruch, hereafter to as "the deceased", and the Applicant was granted 30 days to establish her claim;

2.

Declaring that:

2.1.

the Applicant and the deceased were, at the time of the deceased's death, partners in a permanent opposite-sex life partnership, with the same or similar

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characteristics as a marriage, in which they had undertaken reciprocal duties of support and had committed themselves to marrying each other;

2.2.

Section 1(1) of the Intestate Succession Act 81 of 1987 is unconstitutional and invalid insofar as it excludes the surviving life partner in a permanent opposite-sex life partnership from inheriting in terms of this Act;

2.3.

the omission in Section 1(1) of the Intestate Succession Act 81 of 1987 after the words "spouse", wherever it appears in the section, of the words "or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support and had been committed to marrying each other", is unconstitutional and invalid;

2.4.

the Intestate Succession Act is to be read as though the following words appear after the word spouse, wherever it appears in the section - "or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support and had been committed to marrying each other":

3.

In the alternative to 2.3 and 2.1 above, declaring that:

3.1.

the omission in section 1(1) of the Intestate Succession Act, wherever the words "same-sex life partnership" have been read into that section by the Constitutional Court of the words "or opposite-sex life partnership", wherever they may have been read into that section by the Constitutional Court;

4.

Declaring that:

4.1

the definitions of "survivor", "spouse" and "marriage" in section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 are unconstitutional and invalid insofar as they exclude partners in permanent opposite-sex life partnerships from claiming maintenance in terms of this Act;

4.2.

the definition of "survivor" in the Maintenance of Surviving Spouses Act 27 of 1990 is to be read as including the words "and include the surviving partner in a permanent opposite-sex life partnership in which the partners had

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undertaken reciprocal duties of support and had been committed to marrying each other";

4.3.

the definition of 'spouse' in the Maintenance of Surviving Spouses Act 27 of 1990 is to be read as including the words "a person in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support and had been committed to marrying each other";

4.4.

the definition of 'marriage' in the Maintenance of Surviving Spouses Act 27 of 1990 is to be read as including the words "a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support and had been committed to marrying each other";

4.5.

the Applicant is entitled to lodge a claim for maintenance against the deceased's estate under the Maintenance of Surviving Spouses Act 27 of 1990;

5.

Directing that until the aforesaid defects are corrected by the legislature to provide for the above, effect is to be given to the terms of the Notice of Motion in respect of the Applicant by the First and the Second Respondents;

6.

Declaring that the Applicant is entitled to the same benefits bestowed on spouses in terms of the aforesaid Acts;

7.

Directing Second Respondent to comply with the aforesaid terms of the Notice of Motion in the winding up of the estate of the late A.S. Ruch No. 007400/2016 under the auspices and control of the First Respondent;

8.

Authorising and directing the First Respondent to ensure that effect is given to the terms of this Order in the liquidation and distribution of the said estate of the late A.S. Ruch No. 007400/2016;

10.

Ordering the Third Respondent to pay the costs of the application.

11.

In the alternative to the aforesaid and in the event that the Applicant is only successful in respect of the relief sought in respect of the Maintenance of Surviving Spouses Act,

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ordering the Second Respondent and those of the Respondents who oppose this application to pay the costs of this application jointly and severally, the one paying, the others to be absolved;

12.

In the further alternative, and in the event that the Applicant is not successful with both her claims for a declaratory is to her entitlement to an inheritance under the Intestate Succession Act and maintenance under the Maintenance of Surviving Spouses Act, ordering each party to pay its own costs in the application;

13.

Directing that the costs in paragraphs alternatively 11 are to include the costs to of three counsel, where so employed;

[3]

I turn to look at the factual matrix of this case which will hopefully direct the path that led to this application.

[4]

The details of the relationship in this case between the Applicant and the deceased remain uncontroverted, the Applicant narrates the chronicles of this love story from its beginning up to and until the tragic and sudden death of the deceased.

The Factual Matrix:

[5]

The Applicant and the deceased met in February of 2014 when she was waiting for a taxi in Camps Bay to take her to Cape Town train station to send goods to her family in Zimbabwe, the deceased "swept her off her feet" by taking her to the station in his car, waiting for her to drive her back to Camps Bay and taking her on a first date to Caprice restaurant later that same evening.

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[6]

They spent progressively more time together in the months that followed, she often slept over at the deceased's property in Camps Bay ("the Rottingdean property"), in her own room at first, with their initial emotional bond developing into a close and affectionate relationship.

[7]

During June 2014, four months after they had first met, the deceased told her that he loved her and asked her to move in with him at his Rottingdean property on a permanent basis, a request to which she happily obliged. [1] On days when the Rottingdean property was fully occupied with guests, they slept at the deceased's flat in Seaways, Mouille Point ("the Seaways flat").

[8]

The Applicant admits that she retained her room in the servants' quarters at The Meadows, being the home of the Solomon family where she works as a domestic worker, and states that her employer, Mrs Alinda Solomon (Mrs Solomon), was aware of her moving in with the deceased, but allowed her to retain her room so she could conveniently stay over on nights that she worked late due to Shabbat dinner or when she was looking after the children when Mrs Solomon was out.

[9]

The Applicant's version is confirmed by Mrs Solomon in her supporting affidavit and supported by the diary entries of the deceased. The Applicant often went out with two of his friends, Harold Nakan and Joe Galante.

[10]

The uncontested allegations by Mr Nakan and Mr Galante in their respective confirmatory affidavits setting out how they came to be friends with the deceased from around

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2006, that they socialised with the deceased at least once a month, that they met the Applicant on or about February 2014, and that the Applicant thereafter often accompanied the deceased socially. They also confirm that it was clear to them that the deceased and the Applicant were in a serious and affectionate relationship. Mr Nakan states that the couple often "hugged and kissed each other" in his presence and Mr Galante states that the deceased "treated the Applicant like a princess"; The Applicant accompanied the deceased to his friend, Mr McGillewie's 60th birthday party.

[11]

The undisputed allegations by Ms Tariro Chiyangwe, a close friend of the Applicant, confirm that the Applicant and the deceased lived together. Ms Chiyangwe set out various occasions on which she and her husband socialised with the deceased and the Applicant, with specific reference to the Applicant and the deceased visiting them at their home in February 2016 to congratulate them on the birth of their baby.

[12]

The Applicant further avers that the deceased treated her brother as a brother in-law, that the deceased's treatment of the Applicant's brother, Givemore, when he arrived in Cape Town in November 2015 evidences the nature of their relationship. The Applicant alleges that the deceased was excited about the arrival of her brother and that he gave her "a box of gifts and food to give to Givemore on which he had written 'welcome brother-in-law "'. This occasion was recorded by the deceased in his diary in entry on 3 November 2015, where he wrote "Jane's bro! Givemore arrives! 2day by bus from Zim." and further supported by the deceased's bank statements which indicate that he spent R 2 695.20 at Pick n Pay and Woolworths on groceries for Givemore.

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[13]

The Applicant's...