Bwanya v the Master and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Citation: 2021 (1) SA 138 (WCC)

Bwanya v the Master and Others
2021 (1) SA 138 (WCC)

2021 (1) SA p138

Citation	2021 (1) SA 138 (WCC)
Case No	20357/18
Court	Western Cape Division, Cape Town
Judge	Magona AJ
Heard	September 28, 2020
Judgment	September 28, 2020
Counsel	R Stelzner SC (with P Rabie and A Thiart) for the applicant.; L Golding for the first and third respondents.; N Bawa SC (with S van Zyl) for the second and fourth to tenth respondents.; A Christians for the first amicus curiae, the Women's Legal Centre.; M Adhikari (with M Bishop) for the second amicus curiae, the Commission for Gender Equality.

Flynote : Sleutelwoorde

Administration of estates — Intestate succession — 'Spouse' — After 'spouse', words 'or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support' to be read in — Intestate Succession Act 81 of 1987, s 1(1).

Headnote : Kopnota

Applicant, Ms Bwanya, and one Mr Ruch had entered into a relationship during the course of which Mr Ruch died (see [25]). Ruch, who was an only child, had left a will, but it nominated as his heir his mother, who had predeceased him (see [42]).

Applicant had later made a claim on Ruch's estate, alleging a universal partnership, but this had been rejected by the second respondent, the executor (see [44]).

Bwanya later instituted proceedings, alleging she was the surviving spouse in an opposite-sex life partnership, and challenged the constitutionality of s 1 of the Intestate Succession Act 81 of 1987 and Maintenance of Surviving Spouses Acts 27 of 1990, insofar as they excluded her from inheriting or receiving maintenance (see [46], [48] – [49] and [85] – [86]).

On the day of the hearing, applicant, the executor and the fourth to tenth respondents settled, and those respondents withdrew (see [35] and [37]). However, the hearing continued on the constitutional points, with the third respondent, the Minister of Justice, abiding by the outcome (see [35], [37] and [54]).

Held

•

Applicant's failure to proceed within 30 days of notification of the rejection of her claim would be condoned (see [81] and [123]).

•

The questions of the partnership's existence and the legislation's constitutionality were not moot (see [131].

•

A life partnership with reciprocal duties of support had subsisted (see [141] – [142]).

•

Section 1(1) of the Intestate Succession Act treated opposite-sex life partners differently to married men and women and same-sex life partners, and it also indirectly differentiated between the male and female partner (see [169]).

2021 (1) SA p139

•

This differentiation, on the listed grounds of marital status, sexual orientation, and sex and gender, was discriminatory and unfair (see [169], [172], [176], [179] and [182]).

•

It was also an unjustifiable limitation of the equality right (see [186]).

•

Likewise, the provision unjustifiably infringed the right to dignity (see [182] and [186]).

•

Section 1(1) accordingly, in excluding opposite-sex life partners who had undertaken reciprocal duties of support, was unconstitutional and invalid (see [191] – [192]).

•

But authority, namely Volks NO v Robinson 2005 (5) BCLR 446 (CC) ([2005] ZACC 2), stood in the way of relief in respect of the Maintenance of Surviving Spouses Act (see [200] and [209]).

Application upheld in part, and ordered, inter alia:

•

That after the word 'spouse' in s 1(1) of the Intestate Succession Act, there be read in 'or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support' (see [233]).

•

That the Master and executor give effect to the order in respect of Bwanya, to the extent of the settlement (see [233]).

Cases cited

AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) (2006 (11) BCLR 1255; [2006] ZACC 9): referred to

Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 (1) SA 580 (CC) (2005 (1) BCLR 1; [2004] ZACC 17): referred to

Brink v Kitshoff NO 1996 (4) SA 197 (CC) (1996 (6) BCLR 752; [1996] ZACC 9): referred to

Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another 2011 (4) SA 42 (CC) (2011 (2) BCLR 121; [2010] ZACC 19): referred to

Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) (2004 (7) BCLR 735; [2004] ZACC 14): referred to

Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) (2003 (11) BCLR 1220): referred to

Du Toit and Another v Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as Amicus Curiae) 2003 (2) SA 198 (CC) (2002 (10) BCLR 1006): referred to

Farr v Mutual & Federal Insurance Co Ltd 2000 (3) SA 684 (C): referred to

Fraser v Children's Court, Pretoria North, and Others 1997 (2) SA 261 (CC) (1997 (2) BCLR 153; [1997] ZACC 1): referred to

Gory v Kolver NO and Others (Starke and Others Intervening) 2007 (4) SA 97 (CC) (2007 (3) BCLR 249; [2006] ZACC 20): considered

Harksen v Lane and Others 1998 (1) SA 300 (CC) (1997 (11) BCLR 1489; [1997] ZACC 12): dictum in para [54] applied

Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) (2001 (9) BCLR 883; [2001] ZACC 23): referred to

J v Director General, Department of Home Affairs 2003 (5) SA 621 (CC) (2003 (5) BCLR 463; [2003] ZACC 3): referred to

Langemaat v Minister of Safety and Security and Others 1998 (3) SA 312 (T) (1998 (4) BCLR 444): referred to

Laubscher NO v Duplan and Others 2017 (2) SA 264 (CC): considered

2021 (1) SA p140

McDonald v Young 2012 (3) SA 1 (SCA) ([2011] ZASCA 31): referred to

Meyer v RAF (TPD case No 29950/2004): referred to

Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others 2006 (1) SA 524 (CC) (2006 (3) BCLR 355; [2005] ZACC 19; [2005] ZACC 20): referred to

Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) (1996 (12) BCLR 1559; [1996] ZACC 20): referred to

Moise v Greater Germiston Transitional Local Council: Minister of Justice and Constitutional Development Intervening (Woman's Legal Centre as Amicus Curiae) 2001 (4) SA 491 (CC) (2001 (8) BCLR 765; [2001] ZACC 21): referred to

Natal Rugby Union v Gould 1999 (1) SA 432 (SCA) ([1998] 4 All SA 258; [1998] ZASCA 62): referred to

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) (1998 (2) SACR 556; 1998 (12) BCLR 1517; [1998] ZACC 15): dictum in para [19] applied

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39; [1999] ZACC 17): dictum in para [21] applied

Paix|fwo and Another v Road Accident Fund 2012 (6) SA 377 (SCA) ([2012] 4 All SA 262; [2012] ZASCA 130): referred to

Pretoria City Council v Walker 1998 (2) SA 363 (CC) (1998 (3) BCLR 257; [1998] ZACC 1): dictum in para [31] applied

Reed v Master of the High Court of SA [2005] 2 All SA 429 (E): applied

Robinson and Another v Volks NO and Others 2004 (6) SA 288 (C): referred to

S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665; [1995] ZACC 3): referred to

S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) (2001 (1) SACR 686; 2001 (5) BCLR 449; [2001] ZACC 17): referred to

Satchwell v President of the Republic of South Africa and Another 2002 (6) SA 1 (CC) (2002 (9) BCLR 986; [2002] ZACC 18): referred to

Satchwell v President of the Republic of South Africa and Another 2003 (4) SA 266 (CC) (2004 (1) BCLR 1; [2003] ZACC 2): referred to

Shabalala and Others v Attorney-General, Transvaal, and Another 1996 (1) SA 725 (CC) (1995 (2) SACR 761; 1995 (12) BCLR 1593; [1995] ZACC 12): referred to

Smit v Minister of Justice and Correctional Services and Others 2019 (2) SACR 516 (WCC) ([2019] 4 All SA 542): referred to

Volks NO v Robinson 2005 (5) BCLR 446 (CC) ([2005] ZACC 2): followed.

Legislation cited

Statutes

The Intestate Succession Act 81 of 1987, s 1(1): see Juta's Statutes of South Africa 2019/20 vol 7 at 2-35.

Case Information

R Stelzner SC (with P Rabie and A Thiart) for the applicant.

L Golding for the first and third respondents.

N Bawa SC (with S van Zyl) for the second and fourth to tenth respondents.

A Christians for the first amicus curiae, the Women's Legal Centre.

M Adhikari (with M Bishop) for the second amicus curiae, the Commission for Gender Equality.

2021 (1) SA p141

A claim by the surviving partner in an opposite-sex life partnership, against the estate of the deceased partner.

Order

1.

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 referred to as 'the deceased', and in which the applicant was granted 30 days to establish her claim, is condoned.

2.

It is declared 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 characteristics as a marriage, in which they had undertaken reciprocal duties of support.

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 s 1(1) of the Intestate Succession Act 81 of 1987 after the word...