By Muchadeyi Ashton Masunda
Jane Bwanya v The Master of the High Court, Cape Town [1st Respondent]; A.I.A. Kaplan (the Executor of the Estate Late Anthony S. Ruch) [2nd Respondent]; Minister of Justice & Constitutional Development [3rd Respondent] and 7 Others
1) Applicant’s Case
1.1) Jane Bwanya (JB), the Applicant, sought an order premised on certain provisions of the Intestate Succession Act 81 of 1987 (ISA) and the Maintenance of Surviving Spouses Act 27 of 1990 (MOSSA) being declared unconstitutional in that her claims for a share of the estate of her late partner, Anthony Ruch (the deceased), were not recognised nor provided for under the ISA or MOSSA.
1.2) JB was legally represented by the Women’s Legal Centre Trust as the First Amicus Curiae and the Commission for Gender Equality as the Second Amicus Curiae.
2) Factual Background
2.1) JB and the deceased were, at the time of the latter’s death, partners in a permanent opposite-sex life partnership, with the same characteristics as a marriage in which they had undertaken reciprocal duties of support and had committed themselves to each other.
2.2) JB and the deceased met in 2014 when she was waiting for a taxi in Camps Bay to take her to the 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; waited for her and drove her back to Camps Bay. Later that same evening, he took her on their first date to a posh restaurant in Cape Town.
2.3) They spent progressively more time together with her sleeping over at his “Rottingdean Property” in Camps Bay in her own room at first.
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. She happily obliged. 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).
2.4) In the meantime, JB retained her room in the servants’ quarters at The Meadows, the home of the Solomon family where she was employed as a domestic worker. Her employer was aware of her moving in with the deceased but allowed her to retain her room so that she could conveniently stay over on nights when she either worked late or had to look after the children of the Solomons.
2.5) Two of the deceased’s close friends confirmed in their respective affidavits that the deceased and JB were in a serious and affectionate relationship.
They also stated that he treated her like a princess.
2.6) Ms Tariro Chiyangwe, a close friend of JB, testified about how she and her husband socialised with the deceased and JB.
She further averred that the deceased treated JB’s brother, Givemore, as a brother-in-law.
When JB’s brother visited Cape Town in November 2015, the deceased showered him with a box of gifts and food with an accompanying note on which he wrote – “Welcome brother-in-law”.
The deceased even recorded an entry in his own diary on November 3, 2015 as follows – “Jane’s bro! Givemore arrives! 2day by bus from Zim”.
2.7) There was evidence adduced to the effect that the deceased had undertaken to assist JB to obtain a driver’s licence by paying for her driving lessons.
He also undertook to buy her a minibus with a personalised number plate, “GI Jane”.
Evidence was also led to the effect that plans were well under way for JB and the deceased to set up a cleaning business together.
2.8) JB submitted that she and the deceased contemplated having a baby together. This aspect of her testimony was corroborated by an entry dated October 15, 2015 in the deceased’s diary about “cementing their relationship with a baby”.
2.9) Apropos the reciprocal duties of support, JB averred that the deceased took care of all the expenses relating to the Rottingdean Property and the Seaways Flat. He also bought their groceries and other household necessities while she cooked and cleaned for them. She submitted that the deceased did not expect her to contribute financially to their shared household expenses as he knew that her financial circumstances were dire and that she was supporting her daughter in Zimbabwe.
2.10) The deceased acknowledged JB’s contribution of love, care, emotional support and companionship to their permanent domestic partnership. She and the deceased regarded each other as family and relied upon each other as such – e.g. the deceased telephoned JB more than anyone else, approximately 81 times during the period January 14, 2016 to March 26, 2016.
2.11) The deceased had set in motion plans to sell his Seaways Flat and use some of the proceeds to buy a Land Rover to use for the trip to Zimbabwe to meet JB’s family and pay lobola.
2.12) The deceased passed away unexpectedly on 23 April, 2016 – two months before he and JB were scheduled to travel to Zimbabwe to finalise the lobolo arrangements with JB’s family after which they would have been married. At the time of his death, the deceased was 57 years old. He had never been married. He had a will but the heiress was his mother, Mrs Lorna Ruch, who had died intestate in 2013. The deceased was his mother’s sole heir having been the only child.
3 JB’s Main Contentions were that:
3.1) she was being discriminated against by the Executor of her late partner’s deceased estate;
3.2) Her constitutional rights to human dignity and equality were being infringed;
3.3) on the facts of her particular case, she should be permitted to inherit from her deceased partner’s estate in terms of the ISA;
3.4) she should be entitled to claim maintenance from her partner’s deceased estate in terms of the MOSSA.
4 Conclusion – the Constitutional Court held that:
4.1) JB 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;
4.2) Section 1(1) of the ISA is unconstitutional and invalid in so far as it excludes the surviving life partner in a permanent opposite-sex life partnership from inheriting in terms of this Act;
4.3) the omission in Section 1(1) of the ISA, after the word “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” is unconstitutional and invalid;
4.4) the ISA 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”.
5) In the result, JB was awarded:
5.1) a claim of R6 734 964-36 against the estate of the deceased’s mother, Mrs Ruch, in respect of the value of the immovable property commonly known as 60 Rottingdean Road, Camps Bay which had been sold by the Executor of the deceased’s estate;
5.2) a further claim of R2 570 000-00 in respect of the value of the Seaways Flat located at 31 Beach Road, Mouille Point which was sold prior to the deceased’s death but finalised after his death;
5.3) the deceased’s various financial investments worth R1 million comprising, inter alia, a PSG Investment, an Old Mutual Investment and cash in an FNB Account;
5.4) costs of suit including the costs of three Counsel, where so employed, to be borne by the 3rd Respondent (i.e. the Minister of Justice & Constitutional Development).
In essence, the Constitutional Court ruled that permanent life partnerships were a legitimate family structure which not only deserved respect but is also entitled to legal protection. In the circumstances, the Constitutional Court gave the South African Parliament 18 months to make the necessary amendments to the ISA and MOSSA.
The immediate past chief justice of South Africa, Mogoeng Thomas Reetsang Mogoeng, gave a solitary dissenting judgment, arguing that:
- # “it would be unconscionable, unjust and most insensitive to the plight of unmarried heterosexual couples to adopt a legal posture that seeks to preclude them from ever being entitled to be beneficiaries of maintenance and inheritance from their permanent life partners, regardless of the explicit or implicit terms of their partnership”;
- # “the fundamental differences between marriage and permanent life partnerships necessitate the existence of different regimes with regard to maintenance and inheritance”.
- This landmark judgment by the South African Constitutional Court was summarised by Muchadeyi Ashton Masunda, a senior legal practitioner in Harare.