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Constitutional Court confirms Cape High Court’s ruling on Intestate Succession Act – Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51

Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51

The Constitutional Court confirmed the ruling of the Western Cape High Court in October 2020 that section 1 of the Intestate Succession Act, 81 of 1987 (ISA), is unconstitutional in so far as it excludes life partners in a relationship intended to be permanent from the definition of “spouse”.

For the facts of the matter, see our summary of the Western Cape High Court judgement by clicking here.

The majority of the court (Madlanga J, with Khampepe J, Majiedt J, Pillay AJ, Theron J and Tlaletsi AJ concurring) held that unfair discrimination on the basis of marital status is prohibited by section 9 of the Constitution, and that any such discrimination is presumed to be unfair unless it can be shown not to be unfair. Taking into consideration that there are indications that more than three million South Africans are in life partnerships, the court found that not to extend the right to inherit under intestate law from one another would be unfair discrimination on marital status. The court emphasised that, in many instances, to argue that parties who do not get married choose to do so, does not take cognisance of the vulnerable position of especially women in relationships. The court also pointed out that, since the decision in Gory v Kolver and other case law, the courts developed sound tests to determine whether a life partnership existed where reciprocal duties of care, maintenance and support were undertaken by the parties.

The court also allowed an appeal against the ruling by the Western Cape High Court that it cannot find that the provisions of the Maintenance of Surviving Spouses Act, 27 of 1990 (MSSA), are unconstitutional, because it is bound by the earlier decision by the Constitutional Court in Volks NO v Robinson and Others [2005] ZACC 2. The court found that whether or not a life partnership existed is a factual question and that it can, therefore, decide on the facts that it existed in the current matter. The court was of the view that the decision in Volks does not bind it under all circumstances.

The court ordered, inter alia, that both section 1 of the ISA as well as section 2 of the MSSA are unconstitutional and that it should be read to include a partner in a life partnership complying with the test of reciprocal duties of care, maintenance and support. The order is postponed for 18 months to give Parliament the opportunity to amend the two pieces of legislation.

In a dissenting judgement Mogoeng CJ held that the majority did not advance sound reasons why the decision in Volks was demonstrably wrong and that the court was therefore bound by this prior judgement under the rule that a court is bound by its earlier decisions unless these can be shown to be demonstrably wrong. Moegoeng CJ also disagreed that all discrimination in favour of married couples is unfair in so far as it relates to the legal consequences of the different types of life relationships.

In a further dissenting judgement Jafta J (Mhlantla J and Tshiqi J concurring) also held that the court is bound by the decision in Volks and that the majority failed to demonstrate that that decision was wrong.


The judgements consist of 92 pages, and members who want to gain a deeper insight into the different arguments advanced by the three judgements are advised to take the time to read the judgements. It is, obviously, virtually impossible to do justice to the various arguments in a summary like this.

Practically speaking executors should now seriously consider any claims from life partners under either of the mentioned acts and obtain legal advice in appropriate circumstances, as failure to consider them could result in further litigation.

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