The Constitutional Court declared certain provisions of the Intestate Succession Act, 1987 (ISA), and the Maintenance of Surviving Spouses Act, 1990 (MSSA), to be unconstitutional in the case of Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51. See the FISA summary of the judgement here.
In this judgement the court ordered that the words “and includes the surviving partner of a permanent life partnership terminated by the death of one partner 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” are to be read into the definition of “survivor” in section 1 of the MSSA, and that the words “’Spouse’ for the purposes of this Act shall include a person in a permanent life partnership in which the partners undertook reciprocal duties of support” be read into the definition of “spouse”, and the words “’Marriage’ for the purposes of this Act shall include a permanent life partnership in which the partners undertook reciprocal duties of support” be read into the relevant definition in section 1 of the MSSA. The court ordered further that the words “or partner in a permanent life partnership in which the partners have undertaken reciprocal duties of support” be read into section 1(1) of the ISA after the word “spouse” wherever it appears in the subsection.
These orders were suspended for a period of 18 months from the date of the order to give Parliament the opportunity to correct the unconstitutionality of the legislation. This period expired on 30 June 2023.
A bill was published (B7-2023) entitled the Judicial Matters Amendment Bill of which clauses 14 and 15 propose to amend the relevant acts to give effect to these orders. Click here for FISA’s report on this and a copy of the bill. According to the Parliamentary website the bill is currently in the committee stage of the legislative process.
As the suspension of the orders have come to an end, it is FISA’s view that the legislation mentioned must now be read as if the wording appears in the relevant sections as ordered by the Constitutional Court.
Our understanding is that the Office of the Chief Master will issue a directive in due course on the practical implications of this for deceased estates under administration.