Bwanya v Master of the High Court, Cape Town and Others

Ms Jane Bwanya and the late Mr Anthony Ruch lived together in a permanent heterosexual life partnership from 2014 until Mr Ruch's death in April 2016. They shared accommodation, pooled resources, held themselves out as married, and were planning to marry after traveling to Zimbabwe for lobola negotiations. Mr Ruch died intestate, having previously nominated his mother (who predeceased him) as sole heir. Ms Bwanya lodged claims for maintenance under the Maintenance of Surviving Spouses Act and for inheritance under the Intestate Succession Act. The executor rejected both claims on the basis that she did not qualify as a "spouse" or "survivor" under the Acts. Ms Bwanya subsequently settled her claims for R3 million but continued to challenge the constitutionality of the exclusion of permanent heterosexual life partners from these statutory benefits.

• Whether the exclusion of permanent heterosexual life partners from the definition of 'survivor' in section 1 of the Maintenance of Surviving Spouses Act constitutes unfair discrimination on the ground of marital status
• Whether section 1(1) of the Intestate Succession Act is unconstitutional insofar as it excludes surviving partners in permanent opposite-sex life partnerships from inheriting
• Whether the matter was moot following the settlement
• Whether the Constitutional Court should depart from its previous decision in Volks v Robinson
• Whether 'choice' to marry is a relevant consideration in determining unfair discrimination
• Whether the common law adequately protects permanent life partners

By a majority, the Constitutional Court: (1) Declared the omission from section 1 of the Maintenance of Surviving Spouses Act of surviving partners in permanent life partnerships who undertook reciprocal duties of support to be unconstitutional. (2) Confirmed the High Court's declaration that section 1(1) of the Intestate Succession Act is unconstitutional insofar as it excludes such partners. (3) Read into both Acts provisions extending benefits to 'partners in a permanent life partnership in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner's estate'. (4) Suspended the orders of invalidity for 18 months to allow Parliament to remedy the defects. (5) Provided that if Parliament fails to act, the invalidity orders would have no effect on estates already finalized. (6) Ordered the Minister of Justice and Correctional Services to pay Ms Bwanya's costs, including two counsel.

The binding principle established by the majority is: The exclusion of surviving partners in permanent life partnerships (both same-sex and opposite-sex) who undertook reciprocal duties of support from claiming maintenance under the Maintenance of Surviving Spouses Act and from inheriting under the Intestate Succession Act constitutes unfair discrimination on the ground of marital status that cannot be justified under section 36 of the Constitution. Where parties to a permanent life partnership have undertaken reciprocal duties of support - whether expressly or tacitly - and the relationship bears the hallmarks of a family relationship akin to marriage, the surviving partner (if in financial need and having not received an equitable share) is entitled to the same statutory protections afforded to surviving spouses. The supposed 'choice' to marry is often illusory, particularly for women in unequal power relationships, and cannot justify the denial of protection. The fact that the duty of support in a life partnership arises from agreement rather than operation of law does not, in the context of a family-like relationship deserving legal protection, justify differential treatment for purposes of post-death maintenance and succession.

Madlanga J made several important observations: (1) Proving the existence of a permanent life partnership is not insurmountable - courts can apply factors from National Coalition for Gay and Lesbian Equality (duration, public recognition, financial interdependence, etc.) adapted to the heterosexual context. (2) The doctrine of precedent does not require finding a previous decision 'clearly wrong' where changed social and legal context (such as the development in Paixão) provides a different framework for analysis. (3) Extending protection to permanent life partners does not devalue or undermine the institution of marriage. (4) Census data showing 3.2 million cohabiting couples reflects a social reality that law must address. (5) Permanent life partnerships deserve respect as institutions through which many lead their lives, form families, and find love and support. Mogoeng CJ observed: (1) Courts should not inadvertently reinforce women's victimhood or normalize manipulative relationships. (2) Equality and freedom values should encourage women to exit oppressive relationships rather than making them more tolerable. (3) Different statutory regimes for different types of relationships (civil marriage, customary marriage, civil unions) are constitutionally permissible. (4) The common law can and should be developed incrementally to address specific needs rather than wholesale statutory reading-in. Jafta J noted: (1) Hugo establishes that denial of a benefit based on a listed ground does not automatically constitute unfair discrimination. (2) The real problem is Parliament's comprehensive failure to regulate the 3.2 million people in permanent life partnerships. (3) Parliament remains the appropriate body to define rights, obligations, formation and dissolution of permanent life partnerships. (4) A referral to Parliament to address this legislative gap would be appropriate.

This landmark judgment represents a significant development in South African family law and equality jurisprudence. It extends statutory maintenance and succession rights to approximately 3.2 million South Africans in permanent life partnerships. The case is significant because: (1) It recognizes that marriage should not be the exclusive touchstone for legal protection of intimate relationships. (2) It affirms that different family formations deserve equal protection and respect. (3) It acknowledges the gendered realities of power imbalances in relationships and rejects simplistic 'choice' arguments. (4) It demonstrates how changed social context can justify departing from precedent without finding it 'clearly wrong'. (5) It illustrates the Court's willingness to develop the law to address the lived realities of millions of South Africans. (6) It balances judicial intervention with deference to Parliament by suspending the remedy to allow legislative action. The dissents highlight ongoing tensions about: the role of choice and agency; the proper boundary between marriage and other relationships; the separation of powers between courts and Parliament; and whether common law development or statutory amendment is the appropriate remedy.