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

Case Citation and Basic Information

Full case name: Jane Bwanya v Master of the High Court, Cape Town and Others

Citation: 2022 (3) SA 250 (CC)

Court: Constitutional Court

Date of decision: 31 December 2021

Bench composition: Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mhlantla J, Pillay AJ, Theron J, Tlaletsi AJ, and Tshiqi J

Introduction

The landmark decision in Bwanya v Master of the High Court marks a transformative shift in South African family law, addressing the rights of approximately 3.2 million citizens cohabiting outside of marriage. The case involved Jane Bwanya’s challenge to the constitutionality of the Maintenance of Surviving Spouses Act and the Intestate Succession Act after her claims for maintenance and inheritance from her late partner’s estate were rejected by the executor. Centred on the fundamental rights to equality and dignity, the litigation forced a critical re-evaluation of the restrictive precedent in Volks v Robinson, which had historically denied maintenance to surviving partners of permanent heterosexual life partnerships. By moving toward a functional approach to familial relationships, the Court addressed whether marriage should remain the exclusive touchstone for legal entitlement or if the law must accommodate the reality of permanent life partnerships characterised by reciprocal duties of support.

Facts of the case

Ms Jane Bwanya and Mr Anthony S Ruch (the deceased) were in a romantic relationship that exhibited the characteristics of a valid marriage. This relationship began in 2014, in which year they subsequently decided to move in together permanently. In November 2015, the deceased successfully proposed to Ms Bwanya, but later died on 23 April 2026, two months before their journey to Zimbabwe for lobola[1] negotiations. The deceased left behind a will which appointed his mother, who predeceased him in 2013, as the sole heir to his estate.

Ms Bwanya lodged two claims against the deceased’s estate; the maintenance in accordance with the Maintenance of Surviving Spouses Act (MOSSA)[2] and inheritance in accordance with the Intestate Succession Act (ISA).[3] Both claims were rejected on the basis that the wording in the Acts excluded her from the claimed benefits. Ms Bwanya challenged the constitutionality of section 2(1) of the MOSSA[4] and section 1(1) of the ISA[5] on the basis that they discriminate against surviving partners in permanent heterosexual life partnerships, where the partners had undertaken reciprocal duties of support, thereby violating her rights to equality and dignity.

Legal issues

Issue 1: Whether a surviving partner in a permanent heterosexual life partnership in which the partners had undertaken reciprocal duties of support is entitled to claim maintenance under the MOSSA?

Issue 2: Whether a surviving partner of a permanent heterosexual life partnership in which the partners had undertaken reciprocal duties of support is entitled to inherit from the estate of the deceased partner under the ISA?

Arguments presented

Applicant’s arguments

The central argument of Ms Bwanya’s challenge was that the Acts were unconstitutional because they excluded surviving partners in permanent heterosexual life partnerships from claiming maintenance and inheritance. She argued that these exclusions violated her fundamental rights to equality: the law discriminated against her on the basis of her marital status, a prohibited ground of discrimination under Section 9(3) of the Constitution,[6] and dignity: by treating her as a “stranger” to her late partner’s estate despite their committed life together, the law undermined her dignity.

She argued that her relationship with the deceased comprised most characteristics of a marriage. She presented evidence that they lived together permanently and shared a household, where they undertooks reciprocal duties of support, with the deceased providing financial maintenance while she provided care and companionship. They were publicly known as a couple, and the deceased introduced her as his wife. Lastly, she argued that they had a clear intention to marry, having already accepted his proposal and begun preparations for lobola negotiations.

A significant part of the argument challenged the “choice argument” previously upheld in Volks v Robinson.[7] This earlier ruling suggested that heterosexual couples choose not to marry and must accept the legal consequences.[8] Arguments brought forward included noting that women often lack the power to insist on marriage in patriarchal relationships,[9] dependence on a male partner’s financial strength can force women to remain in cohabitation relationships against their preference,[10] and this lack of choice leaves vulnerable women destitute upon the death of their partners, which the law should seek to remedy rather than ignore.

Respondent’s arguments

The respondents raised several arguments to defend the exclusion of life partners from the Acts. The most significant argument was that heterosexual couples have a choice to marry or not. The law places no legal impediment on heterosexual couples to marry. They argued that imposing the legal obligations of a marriage on those who chose to avoid the institution would undermine their right to choose alternative family forms. Entering into a marriage signifies a willingness to accept its specific legal obligations, such as the reciprocal duty of support. Conversely, choosing not to marry is a choice not to have these automatic legal consequences apply to the relationship.[11]

The second argument was focused on the protection of marriage; the state has a legitimate interest in promoting and protecting marriage as a vital social institution. Because marriage is a constitutionally and internationally recognised institution, the law may legitimately distinguish between married and unmarried people. Affording certain benefits like posthumous maintenance exclusively to surviving spouses was seen as a logical consequence of recognising the special status of marriage.

A central technical argument concerned the legal duty to support. In a marriage, such a duty arises by operation of law. In a life partnership, the duty arises only through agreement between the partners. Respondents argued it would be “incongruous, unfair, irrational and untenable”[12] for the law to impose a maintenance duty on an estate where no such duty was imposed by law while the deceased was alive.

Lastly, regarding the ISA, respondents noted that the benefit previously extended to homosexual partners in Gory v Kolver[13] was based on the fact that those partners could not legally marry at the time. Because heterosexual partners have always had the option to marry, respondents argued there was no similar justification for extending the same benefit to them.

Court’s reasoning and analysis

The Court’s majority reasoning began by acknowledging the shifting social reality in South Africa, where millions of people cohabit in permanent life partnerships outside of marriage. In approaching the two central issues the court noted that while the High Court had declared the exclusion in the ISA unconstitutional, it was bound by the precedent in Volks v Robinson to dismiss the challenge against MOSSA.

In addressing the maintenance challenge, the court first tackled the doctrine of precedent. Madlanga J expressed the view that Volks was wrongly decided but recognised that a court may only depart from its own previous decision if it is “clearly wrong”.[14] Rather than attempting to prove Volks was “clearly wrong,” the court identified a different legal and factual context that had emerged since that decision, allowing for a new outcome. This new context was defined by two primary factors: a re-evaluation of the “choice argument” and the development of the common law regarding the duty of support.

The court fundamentally debunked the “choice argument” upheld in Volks. Drawing on new evidence and narratives, the court found that for many, particularly vulnerable women, the choice not to marry is often illusory due to patriarchal power imbalances, financial dependence on male partners, or a mistaken belief that they are in a “common law” marriage. The court reasoned that constitutional values of freedom and dignity require respect for the diverse ways people order their lives and that the law should not penalise stable family units simply because they are unconventional.

The court relied on the Supreme Court of Appeal’s decision in Paixão v Road Accident Fund,[15] which developed the common law to recognise a legally enforceable duty of support in marriage-like relationships. The court reasoned that it is no longer fitting to distinguish between a duty of support arising from the operation of law and one arising from an agreement when both exist within a familial setting.[16] Consequently, the court concluded that excluding permanent life partners from MOSSA benefits constitutes unfair discrimination on the ground of marital status.

Turning to the succession challenge, the court noted that the exclusion from the ISA is unfair under Section 9(3) of the Constitution. The court highlighted a unique inequality: homosexual life partners were granted intestate succession rights in Gory because they could not legally marry at the time, but now that they can marry under the Civil Union Act,[17] continuing to grant them this benefit while denying it to heterosexuals who choose not to marry would be a form of “equalising up” that the law must address. The court further reasoned that the right to inherit can be seen as “need-based,”[18] intended to protect survivors from destitution, a purpose that applies equally to life partners as it does to spouses.

In the justification analysis under Section 36,[19] the court found that the exclusion of life partners failed to serve a legitimate purpose that could outweigh the infringement of rights. It dismissed arguments regarding evidentiary difficulties in proving a permanent life partnership, noting that the court already handles such inquiries in homosexual cases using established factors like the duration of the relationship and shared households. Finally, the court rejected the notion that excluding life partners was necessary to “dignify” or protect the institution of marriage, stating that it is not apparent how marriage is supported by imposing unfairness on those living outside of it. The court therefore declared the relevant sections of both Acts unconstitutional and ordered a reading-in of terms to include permanent life partners who had undertaken reciprocal duties of support.

Decision and ratio decidendi

With the declaration that the exclusion of permanent life partners in the Acts is unconstitutional, the Court ordered that the definitions of “survivor,” “spouse,” and “marriage” be read to include partners in permanent life partnerships who had undertaken reciprocal duties of support. The orders were suspended for 18 months to provide Parliament with the opportunity to cure the identified legal defects.

The ratio decidendi of the majority judgment is that these exclusions constitute unfair discrimination on the ground of marital status and violate the right to dignity.

Critical analysis

The decision has had a transformative impact on South African family law, primarily by advancing substantive equality and providing a vital safety net for millions of cohabiting citizens. This impact is most significant for vulnerable women, who often find themselves financially dependent and lacking the bargaining power to insist on marriage within patriarchal structures. By ruling that the “choice” not to marry is often illusory, the Court ensured that survivors are no longer treated as “legal strangers” to the estates of their life partners, preventing them from falling into destitution upon their partner’s death.

Jurisprudentially, the decision is a landmark for overturning the restrictive “choice argument” established in Volks. The Court leveraged the development of the common law in cases like Paixão to argue that a legally enforceable duty of support arising from an agreement within a familial setting should carry the same legal weight as a duty arising by operation of law in a marriage. This removes the artificial distinction that previously allowed the law to ignore the maintenance needs of life partners simply because they lacked a marriage certificate. Furthermore, the decision resolved a significant constitutional anomaly by “equalising up” succession rights. Previously, homosexual life partners had inheritance rights under Gory that were denied to heterosexual partners; the Bwanya ruling eliminated this indefensible form of marital status discrimination.

Finally, the decision has major implications by placing a mandate on Parliament to reform the legislative landscape. While the Court provided an immediate remedy through the “reading-in” of terms into the MOSSA and the ISA, it suspended these orders for 18 months, forcing the legislature to move beyond piecemeal reform and develop a comprehensive regulatory framework for domestic partnerships. By doing so, the Court balanced the need to vindicate fundamental rights with the principle of separation of powers, allowing the legislature the opportunity to “fine-tune” how these diverse family forms are governed in the future.

Conclusion

In declaring the exclusion of surviving life partners from the benefits of the MOSSA and the ISA unconstitutional, the Constitutional Court fundamentally reshaped the legal landscape for domestic partnerships. Crucially, the Court leveraged the development of the common law to recognise that a legally enforceable duty of support within a familial setting should carry equal weight whether it arises by operation of law or agreement. Furthermore, by “equalising up” succession rights, the Court ended the indefensible disparity where homosexual life partners enjoyed inheritance benefits denied to their heterosexual counterparts. Ultimately, Bwanya ensures that survivors are no longer treated as “legal strangers” to the estates they helped build, vindicating the constitutional promise of substantive equality.

Bibliography

Case Law

Bwanya v Master of the High Court, Cape Town and Others 2022 (3) SA 250 (CC).

Gory v Kolver NO and Others 2007 (4) SA 97 (CC).

Paixão v Road Accident Fund 2012 (6) SA 377 (SCA).

Volks v Robinson 2005 (5) BCLR 446 (CC).

Legislation

Civil Union Act 17 of 2006.

Constitution of the Republic of South Africa, 1996.

Intestate Succession Act 81 of 1987.

Maintenance of Surviving Spouses Act 27 of 1990.

[1] Lobola (or ilobolo) is an African customary practice where the prospective groom’s family offers a token of appreciation to the bride’s family to formalise a marriage that unites the two families. This is negotiated by family elders and is typically paid in the form of cattle, cash, gifts, or any equivalent.

[2] 27 of 1990.

[3] 81 of 1987.

[4] Section 2(1) of the Maintenance of Surviving Spouses Act provides that, “If a marriage is dissolved by death…the survivor shall have a claim against the estate of the deceased spouse for the provision of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide therefor from his own means and earnings.”

[5] Section 1(1) of the Intestate Succession Act provides that, “If… a person dies intestate, either wholly or in part, and is survived by a spouse, but not by a descendant, such spouse shall inherit the intestate estate.”

[6] Section 9(3) of the Constitution of the Republic of South Africa, 1996 provides that, “[T]he state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

[7] 2005 (5) BCLR 446 (CC).

[8] Volks v Robinson at para 91-93.

[9] Bwanya v Master of the High Court at para 62.

[10] Bwanya v Master of the High Court at para 62.

[11] Bwanya v Master of the High Court at para 42.

[12] Bwanya v Master of the High Court at para 43.

[13] See Gory v Kolver NO and Others 2007 (4) SA 97 (CC).

[14] Bwanya v Master of the High Court at para 46.

[15] Paixão v Road Accident Fund 2012 (6) SA 377 (SCA).

[16] Bwanya v Master of the High Court at para 71.

[17] 17 of 2006.

[18] Bwanya v Master of the High Court at para 89-90.

[19] Section 36(1) of the Constitution provides, “[T]he rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including;

(a) the nature of the right;

(b) the importance of the purpose of the limitation;  

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.”