Pretoria - In a victory for couples in a life partnership, the Constitutional Court has confirmed an earlier High Court ruling that if one of the parties dies intestate – without a will – the surviving partner may claim maintenance from their deceased partner’s estate.
The court on Friday confirmed that the Maintenance of Surviving Spouses Act must include that a person in a permanent life partnership can also claim maintenance if the surviving partner can prove that he or she was financially dependent on the deceased.
As things stood, those outside of marriage could not claim maintenance, in spite of the fact that census data of 2016 revealed that approximately 3.2 million South Africans cohabit outside of marriage and that this number is increasing steadily.
The Western Cape High Court earlier ruled in favour of this, with Acting Judge P Magona at the time saying that in his view the issues raised here were long outstanding and cohabitants of life-long heterosexual partnerships had to be protected.
The High Court at the time also declared sections of the Intestate Succession Act unconstitutional and invalid to the extent that it excludes partners from inheriting (where partners were unmarried but undertook reciprocal duties of support).
The Apex Court, in a majority judgment, did confirm the order of constitutional invalidity and gave Parliament 18 months to take steps to cure the constitutional defects identified in the ConCourt judgment.
The judgment was sparked by an application brought by Jane Bwanya, after the executor of her long-standing partner, Anthony Ruch’s estate, did not accept her claim on the estate after Ruch 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 was never married.
Bwanya said there was no doubt that she and Ruch loved each other dearly and that they planned to get married.
She painted her love story in detail for the court from when 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 for the family by whom she was employed.
Four months after they met, Ruch told her he loved her and accepted the fact that he had to travel to Zimbabwe to pay lobola to her family.
They were planning to start 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 plates “GI Jane”.
She said their friends were aware of the relationship. The pair used to accompany each other to various social gatherings. By October 2015 the partners were contemplating “cementing the relationship with a baby” and he also asked for her hand in marriage. However, he passed away before they could get married.
Bwanya said he paid for everything and that there was thus a contractual duty on him to support her, which continued when he died.
At the time of his death, his estate was worth several millions. Both Bwanya’s claims and that of the dead man’s chauffeur were turned down – for different reasons.
It was argued on her behalf that the Intestate Succession Act, which precluded her from inheriting was outdated. Although she had meanwhile received her share of the inheritance, the ConCourt was still asked to confirm the High Court’s order to pave the way for others in her position.
Judge Mbuyiseli Madlanga, who wrote the majority judgment, said this judgment is not calculated to detract from this or to devalue the institution of marriage. “The institution of marriage is not that fickle… I do not see how giving deserved protection to surviving permanent life partners can devalue marriage,” he said. He added that that all categories of families are deserving of legal protection