The evolution of Family Law in South Africa: A Look at the Same sex and Opposite sex Relationships in the lenses of Right to Equality.

Abstract.

The right to Equality in the law system has borne a significant continuous evolution in the lenses of how different relationships are scrutinized and weighed in different countries. In South Africa, the right to equality is enshrined by section 9 of the constitution which guarantees that everyone before the law should be seen as equal and benefit equal before it. Historically, there had been an undisputed imbalance between the gender-role and observance of same and opposite sex relationships in the eyes of the law. However, with the introduction of the constitution, there has been a rise of amendments in ample legal frameworks that regulate relationships to achieve the purpose of this right effectively. 

Introduction.

Will the waters ever remain calm in the clash of the legal rights between same sex and opposite sex relationships in South African law? The inheritance and maintenance rights of these distinct parties from their deceased partner’s estate have undergone significant gradual changes over the years. Anciently, cohabiting partners who were not married were excluded from inheriting under the Intestate Succession Act (ISA), and maintenance under the Maintenance of Surviving Spouse Act(MSSA) as the surviving partner was not considered as a spouse, despite the fact that they were not allowed to be legally married. 

This demonstrates the tension and imbalance that was between the heterosexual and homosexual relationships and how South African law leaked to maintain that balance. This article will explore how this legal exclusion particularly affected the same sex couples and the call for court intervention to this discrimination in the legal system. It will focus on the legal history of inheritance rights for the same sex partners, the gap left for some years between these forms of relationships, and the legislative changes that took place as the judicial strategy to keep the balance. 

The Legal history of inheritance rights for the same sex partners.

The same sex couple were initially denied the right to marry. This is because the definition of marriage in the Marriage Act recognized marriage as the union between a husband and wife, while the common law definition echoed marriage as the union of a man and a woman, to the exclusion, while it lasts, which vividly set a foot of discrimination as it was gender specific.

After the case of the Minister of Home Affairs v Fourie, there was a serious necessity to attend to the inequality that was thick between the genders in South Africa. In this case, Adriaana Fourie and Johanna Bonthuys sought a relief to allow them to marry because the law excluded them from publicly celebrating their love and committing it to marriage, which shut them out, unfairly and unconstitutionally, violating their right to equality. The court recognized that gays and lesbians have a constitutionally entrenched right to equality as sexual orientation is part of the ground expressly listed in  of the constitution. Sexual orientation became a sensitive ground to step on, creating a loud alarm to everyone even the law to adhere and respect all people as equal under section 9(3) of the constitution.

This recognition by the court serves as evident equally put that same sex couple were not afforded equal protection because of the legacy of strong ancient prejudice against them. The omission from the benefits of marriage was an actual repercussion of prolong discrimination because of their different sexual orientation from the norm, therefore this case summoned the parliament to amend this defect with an urgency of twelve months suspension of this common law definition of marriage, and the marriage definition in the Act as far as it was inconsistent with the constitution, and enact a legislation allowing same sex couple to marry. The court used an appropriate remedy in this case that the words “or spouse” after “husband” will be read in the definition, if the parliament does not attend to this defect within the period. Although some argue that the doctrine of powers was to be adhered to and that this judgement was effective, it remained redundant to address this inequality and the exclusion still strived in other areas of law for the same sex couple. This suggests the tension and repulsion and how law had grown to demoralize same sex relationships while praising the other.

The impact of this discrimination in the inheritance rights of the same sex couple.

 Pending the call from the legislative authority to enact a legislation allowing same sex couple to marry, the definition that had read in words “’or spouse” as remedy by the court in Fourie case still had gaps to afford equality to the same sex partners. Section 1 of the ISA could only recognise spouses for the purpose of inheriting from their deceased partner’s estate. Following that, the same sex couple were not yet allowed to marry, this excluded them from the word “spouse” while this section only conferred rights to heterosexual couple, not permanent same sex life partners. 

The unconstitutionality of this section was challenged in the case of Gory v Kolver, where Mark Gory, whom were at the time of the Hennery Brooks’ passing, was in a permanent same sex life partnership with the latter(deceased) and sought a relief against this discrimination. When brooks died, his parents had nominated Daniel Kolver as the sole intestate heir to be the executor of the estate, while Gory deemed himself as the rightful heir as well because their shared a relation. The Constitutional Court well established the findings of unconstitutionality of section 1 of the Act, that it only protected the opposite sex relationship while amounting to discrimination in terms of section 9(3) of the Constitution, against the sexual orientation ground, which such discrimination was unfair unless the opposite is established. While many may argue, there was a great need for the handed remedy of reading in, which the court ruled. It maintained the balance while covering the hole widely opened as this omission under section 1, after the word ‘’spouse’’ was added with “or partner in a permanent same sex life partnership in which the partner has undertaken the reciprocal duties of support.” This ensured that even though the same sex couples had not been allowed to marry, but they could inherit while waiting on the Parliament to respond before the 1st of December 2006.

While the judgement of this case is scrutinized, it is significant to point out that it created more imbalance between same sex and opposite sex life partners, as the remedy went to be stringent more than necessary. Critics have been laid about the alternative the court took. The Court established that as far as the same sex couples are not yet allowed to marry, and upon waiting on the Parliament to respond to the defect brought by Fourie case, failure of such, section 1 of the ISA will apply to the permanent same sex life partners who have undertaken reciprocal duties of support even though they do not marry under the new dispensation. 

The Effect of Gory Judgement after the Parliament responded to Fourie case.

While keeping it short, It is imperative to bring evidence of the smoke that the Gory case judgement ignited even after the parliament calmed the fire. A case was brought between Laubscher v Duplan, where Mr. Eric Duplan who lived with Mr. Daniel Laubscher in a permanent same sex life partnership by challenged his right to inheritance by the brother of the deceased, Dr. Erasmus Laubscher. In 2017 when this case was argued, The Parliament had passed the  Civil Union Act (CUA) in response to the its obligation imposed by the court in Fourie case. 

Laubscher, the applicant implied that this Act implicated that only the partner who have solemnized and registered their union under the CUA qualifies to inherit the intestate estate of their deceased partner. Duplan had not registered with their union under the Act and therefore was not a spouse but relied on reading in remedy as a life partner that was passed in Gory case so that he could inherit. Laubscher contended that the same sex partners have a choice to enter into a civil union just like the opposite sex partners and should afford the same protection, failure of such, should label them as unmarried and therefore, not entitled to inheritance.  The court was critically unfair not to adhere in favor of this contention.

An honest remark to this is that the court incorrectly ruled that the reading in of the words “or permanent life same sex partner who have undertaken reciprocal duties of support’’ was not an interim measure imposed by the court, to s 1(1) of the ISA defect in Gory case. The truth is, this remedy deserved a short life until the Parliament enacts the CUA, despite the period. Although the Court established the meaning of interim as “meanwhile, temporal and between” and that this remedy lasted longer than ten years, exceeding the estimated period to fit in the category of these words, but the main focus was placed in the wrong side of the table. The period was not the significant factor to assess in this case, rather the purpose of the remedy was the vital point of focus the court had to look at. The critiques are valid that the court was intimidated to amend the damage it has caused in the Gory judgement, where their ruling exceeded the main purpose, which was to maintain a balance than to avenge against the inequality that had been existing. There was no longer a need for the added words after the CUA came into effect. S13 of the CUA labelled a partner who has registered their union under the Act as a spouse, which cut the life span of Gory judgement, and concludes that the court was mistaken not to strike down paragraph 29 of Gory case because this further created tension between the same sex and opposite sex relationships, than ensuring equality, it shifted the discrimination to the other side.

The Equal balance between Same Sex and Opposite Sex relationships.

A gap remained open while the opposite sex life partners lived in discrimination created by the reading in remedy from Gory case. Their legal status remained uncertain until the case of Bwanya v Master of the High Court. In this case, the applicant, Jane Bwanya and the deceased met in February 2014, and lived together for some time and Anthony Ruch passed on June 2016. The applicant lodged two claims. The first was to be entitled to the deceased estate under the ISA and also to be entitled maintenance under the MSSA. The executor of Ruch’s estate rejected the claim for both claims, because under the two Acts, Ms. Bwanya did not qualify for the claimed benefits, which the applicant challenged such pieces of legislation to be unconstitutional.

The Court indeed confirmed Ms. Bwanya’s application and sustained her challenge to both pieces of legislation. Although the court in first instance ruled against the applicant in respect of the case of Volks v Robinson, Justice Madlanga deviated to the right direction by repelling from the stare decisis of this judgement, as he deems it to have been wrongly decided. The case was an accurate reference to the route of this judgement as the facts were similar. In the Volks case, Mrs. Robinson was in a permanent life partnership with Mr. Shandling, the attorney and senior partner of Shandling Volks. From 1995 to 2001 when the latter passed on, they had been living together in a flat in Cape Town. Mrs. Robinson was excluded from inheriting and thus sought for the court to render s2(1) of the MSSA unconstitutional and that the survivor of a permanent opposite life partnership should also be afforded the same protection as a spouse that has married under this Act.

The court’s conclusion in Volks case was definitely erroneous in finding that such distinction between a survivor of a marriage and one of a permanent life partner is not unfair and rational. The court undermined the right to dignity on the basis of marital status and its reasoning to avoid imposing much duty on the estate of the none-married was not adequate to waive this right. This evinces that the court placed more emphasis on marriage and its impotence, while trampling the significant rights entrenched. 

Some academics argue against the decision of Bwanya. Osman in his article criticized how this judgement is so confusing and unconvincing. He suggests that the approach in Bwanya in departing from Volks undermines the doctrine of state decisis and that it has to be decided in the lenses of it. The opposite is true, Justice Madlanga in the Bwanya case had a strong backbone to stand to his ruling. Although critiques may exist about the importance of stare decisis and its certainty, however, sticking to the previous reasoning would still leave the imbalance and questions the reason behind law and judicial role. 

The legislative change after Bwanya case. 

After the court in Bwanya prompted for the reading in, ruling in favor of the applicant, the Judicial Matters Amendment Act came into force. Section 14 of the Act amended s1(1) of the ISA by adding “partner in a permanent life partnership in which the partners have undertaken reciprocal duties of support” and also amended s 1 of the MSSA, by adding the same wording in the definition of a marriage, survivor and spouse.

Recommendations.

Although it has been recognised that the decision in Bwanya has been greatly welcomed by many, domestic partnerships are still in demand of piecemeal and legislations that will afford to protect them adequately. It is thus with great concern that the legislature out measures to enact more legislations in place afforded to heterosexual relationships so that the balance remains stringent for all people and relationships in South Africa. 

Conclusion.

The transition from the common law to the constitutional era has brought a significant evolution that gradually influenced the relationships in South Africa. From the Fourie case, there was an urgent call to allow the same sex couple to also marry, while other pieces of legislations also borne demerits of such exclusion. While the landmark of Gory judgement stretched the tension, however the invention of the JAAA came in hand as a mediator prone to the Bwanya case. In final remarks, although both the same sex and opposite sex relationships can both inherit and claim maintenance, should the reciprocal duties of support exist, there is still more necessity of other pieces of legislations to regulate these relationships.

BIBLIOGRAPHY.

LEGISLATION.

1. The Constitution of the Republic of South Africa, 1996.
2. Marriage Act 25 of 1961
3. Intestate Succession Act 81 of 1987
4. Maintenance of Surviving Spouse Act 27 of 1990. 
5. Civil Union Act 17 of 2006
6. Judicial Matters Amendment Act 15 of 2023

CASE LAW

1. Minister of Home Affairs v Fourie (2006) 1 SA 524 (CC) 
2. Gory v Kolver (2007) 4 SA 97 (CC)
3. Laubscher v Duplan (2017) 2 SA 264 (CC)
4. Bwanya v master of the High Court (2022) 3 SA 250 (CC)
5. Volks v Robinson (2005) 5 BCRL 446 (CC)

Article.

• Madzika “Dawn of a new era for permanent life partners: Frm Volks v Robinson to Bwanya v master of the High Court