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[2020] ZAWCHC 111
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Bwanya v Master of the High Court, Cape Town and Others (20357/18) [2020] ZAWCHC 111; 2020 (12) BCLR 1446 (WCC); 2021 (1) SA 138 (WCC) (28 September 2020)

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case
No.:
20357/18
In the
application of:
JANE
BWANYA
Applicant
and
THE MASTER OF THE HIGH COURT, CAPE
TOWN
First
Respondent
AVROM
IAN ALLEN KAPLAN N.O
(in his capacity
as
executor in the estate of the late A.S Ruch,
Master's
reference no.
007400/2016)
Second Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Third
Respondent
ODETTE
GILLIAN
MENDELSOHN
Fourth Respondent
JEREMY
VICTOR
RESNICK
Fifth Respondent
JONATHAN
MAURICE
RESNICK
Sixth Respondent
CHARMAIN
SUSAN
SILOVE
Seventh Respondent
LOUISE
GERSHON
HERMAN
Eight Respondent
DAVID
LEON
RABINOWITZ
Ninth Respondent
JOEL SIMON
RABINOWITZ
Tenth
Respondent
and
WOMEN'S LEGAL CENTRE
TRUST
First
Amicus
Curiae
COMMISSION
FOR GENDER EQUALITY
Second
Amicus Curiae
JUDGMENT: HANDED DOWN ELECTRONICALLY ON 28 SEPTEMBER
2020
MAGONA,
AJ
Introduction
The
Applicant
[1] The
Applicant seeks an order that is premised on certain provisions of
the Intestate Succession Act 81 of 1987 (ISA) and the
Maintenance of
Surviving Spouse Act 27 of 1990 (MOSSA), being declared
unconstitutional in that her claims for a share of the estate
of the
late Anthony Ruch (“the deceased”) and / or maintenance
from his estate are currently not recognised nor provided
for under
these Acts.
[2] The
relief sought is couched in the following terms:
1.
Condoning the
Applicant's failure to launch this application within 30 days of the
First Respondent' s notification dated 20 July
2018 in terms of which
it was recorded that the Second Respondent was not prepared to accept
the Applicant ' s claim of an “alleged
universal partnership”
with the late AS Ruch, hereafter to as “the deceased”,
and the Applicant was granted 30
days to establish her claim;
2.
Declaring that:
2.1
the Applicant 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 and had committed
themselves to marrying
each other;
2.2
Section 1(1)
of the
Intestate Succession Act 81 of 19
87 is unconstitutional and invalid
insofar as it excludes the surviving life partner in a permanent
opposite- sex life partnership
from inheriting in terms of this Act;
2.3
the omission in
Sect ion 1(1) of the
Intestate Succession Act 81 of 1987
after the
words “spouse”, wherever it appears in the sect ion, of
the words “
or a partner in a permanent opposite -sex life
partnership in which the partners had undertaken reciprocal duties of
support and
had been committed to marrying each other”,
is
unconstitutional and invalid;
2.4
the
Intestate
Succession Act 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 and
had been
committed to marrying each other”:
3. In the alternative to 2.3 and 2.1 above, declaring that:
3.1  the omission in
section 1(1)
of the
Intestate Succession
Act, wherever
the words “
same-sex life partnership”
have been read into that section by the Constitutional Court of
the words “
or opposite-sex life partnership”,
wherever
they may have been read into that section by the Constitutional
Court;
4. Declaring that:
4.1  the definitions of “survivor”, “spouse”
and “ marriage “ in section 1 of the Maintenance
of
Surviving Spouses Act 27 of 1990 are unconstitutional and invalid
insofar as they exclude partners in permanent opposite-sex
life
partnerships from claiming maintenance in terms of this Act;
4.2  the definition of “ survivor” in the
Maintenance of Surviving Spouses Act 27 of 1990 is to be read as
including
the words “
and include the surviving partner in a
permanent opposite-sex life partnership in which the partners had
undertaken reciprocal duties
of support and had been committed to
marrying each other”;
4.3  the definition of
'spouse'
in the Maintenance of
Surviving Spouses Act 27 of 1990 is to be read as including the words
“
a person in a permanent opposite­ sex life partnership
in which the partners had undertaken reciprocal duties of support and

had been committed to marrying each other”;
4.4  the definition of ' marriage' in the Maintenance of
Surviving Spouses Act 27 of 1990 is to be read as including the words

“
a permanent opposite-sex life partnership in which the
partners had undertaken reciprocal duties of support and had been
committed
to marrying each other”;
4.5  the Applicant is entitled to lodge a claim for maintenance
against the deceased' s estate under the Maintenance of Surviving

Spouses Act 27 of 1990;
5. Directing that until the aforesaid defects are corrected by the
legislature to provide for the above, effect is to be given
to the
terms of the Notice of Mot ion in respect of the Applicant by the
First and the Second Respondents;
6. Declaring that the Applicant is entitled to the same benefits
bestowed on spouses in terms of the aforesaid Acts;
7. Directing Second Respondent to comply with the aforesaid terms of
the Notice of Motion in the winding up of the estate of the
late A.S.
Ruch No. 007400/2016 under the auspices and control of the First
Respondent;
8. Authorising and directing the First Respondent to ensure that
effect is given to the terms of this Order in the liquidation
and
distribution of the said estate of the late A.S. Ruch No.
007400/2016;
10.  Ordering the Third Respondent to pay the costs of the
application.
11.
In the alternative to the aforesaid
and in the event
that the Applicant is only successful in respect of the relief sought
in respect of the Maintenance of Surviving
Spouses Act, ordering the
Second Respondent and those of the Respondents who oppose this
application to pay the costs of this application
jointly and
severally, the one paying, the others to be absolved;
12.
In the further alternative,
and in the event that
the Applicant is not successful with both her claims for a
declaratory is to her entitlement to an inheritance
under the
Intestate Succession Act and
maintenance under the Maintenance of
Surviving Spouses Act, ordering each party to pay its ow n costs in
the application;
13.  Directing that the costs in paragraphs alternatively 11 are
to include the costs to of three counsel, where so employed;
[3] I
turn to look at the factual matrix of this case which will hopefully
direct the path that led to this application.
[4] The details of
the relationship in this case between the Applicant and the deceased
remain uncontroverted, the Applicant narrates
the chronicles of this
love story from its beginning up to and until the tragic and sudden
death of the deceased.
The
Factual Matrix
[5] The Applicant
and the deceased met in February of 2014 when she was waiting for a
taxi in Camps Bay to take her to 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, waiting for
her to drive her back to Camps Bay and taking her on a first date to
Caprice restaurant later that
same evening .
[6] They spent
progressively more time together in the months that followed, she
often slept over at the deceased's property in
Camps Bay (“ the
Rottingdean property”), in her own room at first, with the
initial emotional bond developing into
a close and affectionate
relationship.
[7] 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, a request to which she
happily obliged.
[1]
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”).
[8] The Applicant
admits that she retained her room in the servants' quarters at The
Meadows, being the home of the Solomon family
where she works as a
domestic worker, and states that her employer, Mrs Alinda Solomon
(Mrs Solomon), was aware of her moving in
with the deceased, but
allowed her to retain her room so she could conveniently stay over on
nights that she worked late due to
Shabbat dinner or when she was
looking after the children when Mrs Solomon was out.
[9] The Applicant's
version is confirmed by Mrs Solo mon in her supporting affidavit and
supported by the diary entries of the deceased.
The Applicant often
went out with two of his friends, Harold Nakan and Joe Galante.
[10] The uncontested
allegations by Mr Nakan and Mr Galante in their respective
confirmatory affidavits setting out how they came
to be friends with
the deceased from around 2006, that they socialised with the deceased
at least once a month, that they met the
Applicant on or about
February 2014, and that the Applicant thereafter often accompanied
the deceased socially. They also confirm
that it was clear to them
that the deceased and the Applicant were in a serious and
affectionate relationship. Mr Nakan states
that the couple often
“
hugged and kissed each other”
in his presence and
Mr Galante states that the deceased “
treated the Applicant
like a princess” ;
The Applicant accompanied the deceased
to his friend, Mr McGillewie's 60th birthday party.
[11] The undisputed
allegations by Ms Tariro Chiyangwe, a close friend of the Applicant,
confirm that the Applicant and the deceased
lived together. Ms
Chiyangwe set out various occasions on which she and her husband
socialised with the deceased and the Applicant,
with specific
reference to the Applicant and the deceased visiting them at their
home in February 2016 to congratulate them on
the birth of their
baby.
[12] The Applicant
further avers that the deceased treated her brother as a brother
in-law, that the deceased' s treatment of the
Applicant' s brother ,
Give more, when he arrived in Cape Town in November 2015 evidences
the nature of their relationship. The
Applicant alleges that the
deceased was excited about the arrival of her brother and that he
gave her “a box of gifts and
food to give to Givemore on which
he had written ‘welcome brother-in-law’”. This
occasion was recorded by the
deceased in his diary in entry on 3
November 2015, where he wrote “
Jane's bro! Givemore arrives!
2day by bus from Zim.”
and further supported by the
deceased’s bank statements which indicate that he spent R 2
695.20 at Pick n Pay and Woolworths
on groceries for Givemore.
[13] The Applicant
's contention that she and the deceased were in a permanent life
partnership is also supported by the allegations
that they intended
on starting a domestic cleaning business together.
[14] That the
deceased was assisting her in obtaining a driver's license, that he
was going to pay for her driving lessons and buy
her a car to use in
the operation of the business.
[15] The Applicant
refers to an entry in the deceased's note book stating “
Get
mini with #plate GI JANE”
as evidence of their
conversations about getting a minibus for the cleaning business and
making the number plate 'GI Jane '
Attempts
at starting a family
[16]
Applicant alleges, and it remains undisputed that she and the
deceased contemplated having a baby together.
[17] This, she
indicates is evidenced by the various entries in the deceased's
diary, as set out in her replying affidavit. In particular
an entry
dated 15 October 2015, where the deceased made an entry about
“
cementing relationship with a baby”.
Reciprocal
duties of support
[18] The Applicant
avers that she and the deceased had a very traditional arrangement
pertaining to the management of their household.
He took care of all
of the expenses relating to the Rottingdean property and his flat in
Seaways where they occasionally stayed
over.
[19] The deceased
also bought all their groceries and other household necessities while
she cooked and cleaned for them. She alleges
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 sent money to her daughter in Zimbabwe. The deceased
acknowledged the Applicant's contribution
of love, care, emotional
support and companion ship to their permanent domestic partnership.
[20] The Applicant
sets out their household expenses with reference to the deceased's
bank statements, which according to her such
expenses clearly
indicate that the deceased paid for all their household expenses.
[21] She further she
sets out, with reference to the deceased's bank statements and diary,
various occasions on which the deceased
took her out for a meal and
paid for both.
[22] That she and
the deceased regarded each other as family and relied upon each other
as such, which allegations are support e
d by the fact that the
deceased phoned the Applicant more than anyone else - approximately
81 times during the two-month period
dating from 14 January 20 16 to
26 March 20 I6 , w hic h is the only period for which the Applicant
has the deceased ' s MTN cell
phone records in her possession.
Commitment
to marrying each other and challenges faced
[23] The Applicant
further avers that in November 2015, the deceased asked her to marry
him and that they had every intention of
getting married. She states
that the deceased knew that he would have to travel to Zimbabwe to
meet her family and pay lo bola
and that he was setting plan s in
motion to make such a trip possible, such as selling his Seaways flat
and using some of the proceeds
for lo bolo and to buy a Land Rover
for the drive
[24] That the people
who were close to her and the deceased knew about their commitment to
get married and their plans to travel
to Zimbabwe for the deceased to
meet her family , as is evidenced and confirmed by the following:
24.1 Mr Galante and Mr Nakan, Ms Chiyangwe, who was to be the “best
girl”;
24.2 The fact that Mr Arturo Sotnikow (“Arturo”), the
deceased's driver, had assisted the deceased in contacting dealer
s
to purchase the Land Rover, the details of which are evidenced by a
printout from an online advertisement dated 4 January 2016,
[25] In essence one
can summarise the Applicant's case based on the following, succinctly
put by Mr Stelzner as follows:
25.1 the deceased was her life partner and fiancé;
25.2 they had been living in a permanent, stable intimate
relationship with each other over a period of close to two years at
the time of his unexpected death;
25.3 they were engaged to be married to each other at a determinable
future date and within a reasonable time, as soon as the lobolo

negotiations between the deceased and the Applicant' s family had
been concluded;
25.4 they were living together, outside of marriage whilst preparing
for their marriage, in a relationship which was closely analogous
to;
and had most of the characteristics of marriage;
25.5 during this time, the deceased supported the Applicant
financially and emotionally, introducing her to friends as his wife;
25.6 they had undertaken reciprocal duties of support, with the
deceased providing financial support and Applicant providing love,

care, emotional support and companionship;
25.7 they were starting a family together;
25.8 they were committed to marrying each other and would have been
so married, had it not been for the practical challenges regarding

the negotiation and payment of lobolo to the Applicant' s family in
Zimbabwe;
25.9 the deceased passed away unexpectedly on 23 April 2016 , some
two months before he and the Applicant were to travel to Zimbabwe
to
finalise these lo bolo arrangements with the Applicant' s family
after which they would have been married;
[26] The above in
essence encapsulates those relevant facts linking the Applicant and
the deceased.
[27] It was
submitted on behalf of the applicant in essence that there was a
contractual duty of support - whether on the basis
of an express or
tacit agreement to that effect, whether through conduct;
[28] That a
distinction is to be drawn between a life- partner' s right to
support and her right to share in her life-partner' s
estate in a
case of intestacy;
[29] That there is
no principled or rational basis for affording same sex partners
similar relief and refusing the Applicant the
same relief simply on
the basis of the option of marriage having theoretically been
available to the Applicant and the deceased,
given that that option
would also have been available to same sex partners and on the facts
in the present case, the Applicant
and the deceased were in the
process of formalising their life partnership;
The
Parties In Court
[30] The Application
at one stage was only opposed by the Second, Fourth to Tenth
Respondent who are no longer before this Court
due to a settlement
agreement that was entered into between them, I will deal with this
settlement agreement below.
[31] The First and
Third Respondent were represented by the State Attorney' s office
indicated that they will abide with the order
of this Court.
[32] The Amiciis,
admitted in terms of Rule 16A of this Court having been no opposition
to their application to join in the proceedings
, the Women Legal
Centre Trust (the WLCT) filed an affidavit and made submissions
whilst the Commission for Gender Equality (the
COE) made their
submissions to which I will deal with further below.
[33] As indicated
the Second, Fourth to Tenth Respondent initially opposed the
application but have since entered in a settlement
agreement with the
Applicant.
[34] I turn now to
look at the settlement agreement first.
The Settlement
Agreement
[35] On the morning
when the matter was to be heard in this court, the Court was advised
that the Applicant and the Second, Fourth
to Tenth Respondents intend
on engaging in a settlement agreement, the matter had to stand down
so that the parties can engage
in some negotiations where further
conduct of the matter will also be decided.
[36] Just before the
afternoon, the Court resumed and whilst being addressed by Counsel
for the Applicant , Mr Stelzner who appeared
with Mr P Rabie and Ms A
Thiart, and for the Second, Fourth to Tenth Respondent's Ms Bawa
appearing with Ms Van Zyl addressed the
Court regarding the content
of the order.
[37] Ultimately, the
order was granted, and the settlement agreement formed part of the
Court order as far as those parties are
concerned. The terms of the
settlement agreement are extensive I shall refer to paragraph 4
thereof, which reads as follows:
“
The Applicant... persists in seeking the
declaratory relief as set out in her Notice of Motion. The second and
fourth to tenth respondents
have no interest in the relief being
sought and will withdraw from the further conduct of the matter. “
[38] This indeed
took place, as it was indicated by the Second, Fourth to Tenth
Respondent as a result of the settlement agreement
and had no
interest in the declaratory relief sought by the Applicant and
withdrew from the proceedings, Counsel for those Respondents
were
then excused.”
[39] The issue that
then immediately arose was what was too happened to the case now that
there is no formal opposition to the proceedings
and what the impact
of the settlement agreement would be to the rest of the issues before
this Court.
[40] Mr Stelzner
argued that the issues remain alive, the points raised in Applicant's
papers supported by the Amici needed to be
heard and for this Court
to decide on. That the Applicant might have settled with the Third
Respondent, but the issues are not
moot.
[41] I shall deal
with this point further below in this judgment. I turn to look at the
various amici submission relevant in the
issues before me.
The Applicant's
Case continues
[42] The deceased
died on 23 April 2016 at the age of 57, he was never married. He had
a will, but the heir appointed was his mother
Lorna Ruch, who died in
2013 intestate. The deceased was also his mother's only heir having
been the only child. The deceased estate
according to the liquidation
and distribution account comprised of the following:
42.1
a claim of
R6 734 964,36 against the estate of Mrs Ruch in relation to the value
of the immovable property located at 60 Rottingdean
Road, Camps Bay,
which had been sold by the Executor;
42.2
A flat at 31 Beach Road,
Mouille Point (in the Seaways Building) sold prior to the Deceased' s
death for R2 570 000,00 but was finalised
after his death; and
42.3
The remaining value in
the estate related to movable property of to the value of RS 500,00,
a further claim against Mrs Ruch' s
estate in the
sum of
R12 1 96 8 ,69; a PSG Investment in the sum of R192 659,55; an Old
Mutual investment in the sum of R6 57 349,32 and cash
in an FNB
account to the value of R7 249,43.
[43] On the facts,
the claims of the Applicant and that of the deceased' s chauffeur, Mr
Artiro filed in terms of the
Administration of Estates Act 66 of 1965
were both rejected by the Executor on the basis of law and according
to the Executor, also on material facts he found to not support
the
claim made against the estate.
[44] It is this
refusal that led to the Applicant launching this Application to this
Court. The Applicant 's claims as indica ted
are premised on certain
provisions of the ISA and the MSSA being declared unconstitutional in
that her claims for a share of the
estate of the late Anthony Ruch
(“the deceased”) and / or maintenance from his estate are
currently not recognised
nor provided for under these Acts.
[45] In the area of
discrimination on the ground of marital status, some of the
differences between married and unmarried people
and permanent life
partners have already been abolished,
[2]
but many remain - particularly in the a rea of opposite -sex life
partners. That which forms the subject of this application is
one of
them.
[46] That
Section
1(l)
of the intestate Succession Act 81 of I 987 (“the ISA “)
excludes life partners in permanent opposite- sex life partnerships

from inheriting in terms of this Act. The Applicant ' s claim is
premised on her exclusion being invalid and unconstitutional.
She
seeks a reading in of the words “or a partner in a permanent
opposite-sex life partnership in which the partners had
undertaken
reciprocal duties of support and had been committed to marrying each
other” wherever the word “spouse”
appears in the
section.
[47] That insofar as
it may be necessary and insofar as legislative changes are required
to effect this, under the rubric “Further
and/or Alternative
Relief”, the Applicant will be seeking an order similar to that
of the Constitutional Court (and the Court
a quo
in that
matter) in
Bhe and Others v Magistrate, Khayelitsha and
Others,·Shibi v Sithole and Others; SA Human Rights Commission
and Another v
President of the RSA and Another 2005 (I) BCLR 1 (CC).
[48] Similarly, the
definitions of “survivor”, “spouse” and
“marriage” in section l of the Maintenance
of Surviving
Spouses Act 27 of 1990 (“the MOSSA”) excludes partners in
permanent opposite-sex life partnerships from
claiming maintenance in
terms of this Act.
[49] Here too, the
argument is that this exclusion is invalid and unconstitutional,
particularly on the facts of the present matter.
[50] That these
pieces of legislation as they are therefore, discriminate against her
relying on her Constitutional right to, inter
alia, human dignity and
equality as she should be permitted to inherit from the estate of the
deceased in terms of the ISA and
/or that she should be entitled to
claim maintenance from his estate in terms of the MSSA.
[51] Mr Steizner
further argued that she is being discriminated unfairly withjn the
meaning of Section 9(3) of the Constitution
on inter alia the ground
of sex, gender, marital status, sexual orientation. That the
Applicant's constitutional rights to equality
and dignity are not
recognise d in the legislation
[52] Applicant
similarly seeks a declarator that the MOSSA be read to include in the
definitions of “survivor”, “spouse”
and
“marriage” “ partners in permanent opposite-sex
life partnerships in which the partners had undertaken reciprocal

duties of support and had been committed to marrying each other”,
alternatively an order such as the one granted in
Bhe.
[53] In essence, the
Applicant submits that she is being discriminated against and that
her Constitutional rights are being infringed,
her right to human
dignity and equality. She claims that on the facts of her particular
case, she should be permitted to inherit
from the estate of the
deceased in terms of the ISA and/or that she should be entitled to
claim maintenance from the estate in
terms of the MOSSA.
Submissions
by the Third Respondent
[54] The Third
Respondent, through Mr Golding had indicated on record that the
Minister will abide by the decision of the Court.
An explanatory note
had prior to that, been filed on behalf of the Minister and the
following issues were raised:
[55] That the law as
it stands now, considers both section 1(1) of the ISA and Section l
of the MSSA Constitutional. That the Constitutional
Court already
pronounced on both Applicant's claims in respect of the ISA and the
MSSA. The only way the Applicant can succeed
would be if the
Constitutional Court reverses its decision in
Volks NO v Robinson
2005(5) BCLR 446 (CC) and Laubscher v Duplan and Others
2017 (2) SA
264
(CC)
. The Court has already pronounced on situation which
cases are considered as locus classicus on the subject matter.
[56] That
stare
decisis
principle binds this Division and therefore this Court is
bound by the Volks and Laubscher decisions.
[57] It bares to
mention that in Court, Mr Golding then after making submission on the
issue relating to mootness, he ultimately
continued that the Third
Respondent will abide by the decision of the court.
Amici
Curiae
[58] In terms of the
Rule l 6A (1) of the Uniform Rules of this Court, notice s were filed
prior to the hearing of the matter by
the Amici Curiae: the Women's
Legal Centre (“WLCT”) and the Commission for Gender
Equality (“CGE”) and
by written consent of the parties;
Amici intervened.
[59] In this
application, the Women’s Legal Centre Trust and the Commission
for Gender Equality were acting in the interest
of a group or a class
of people as well as in the public interest respectively.
[3]
The
WLCT's main Argument
[60] The WLCT was
introduced as having established the Women 's Legal Centre (the
centre) as a feminist African public interest
law centre that
conducts constitutional litigation with a view to challenging laws
and practices that adversely impact on women
and that act as barriers
for women which laws and practices ultimately prevent women from
attaining substantive equality.
[61] That WLCT filed
an affidavit and made submissions agreeing with the Applicant that
insofar as the ISA and MSSA exclude s partners
in a permanent
opposite-sex life partnership who have undertaken reciprocal duties
of support to it, these Acts are impermissibly
under inclusive ,
unconstitutional and invalid.
[4]
[62] The argument
goes further supporting the argument made on behalf of the applicant
that “an intention” by partners
in a domestic partnership
'to marry” , provides proof of the existence of a domestic
partnership but should not be a requirement.
The WLCT therefore seeks
the relief to be made wider to not only include persons who are in a
domestic partnership where the parties
have undertaken a reciprocal
duty of support, as it would not be just and equitable to limit the
relief to parties who had been
committed to marrying each other.
[5]
[63] That, it
disagrees with the relief sought by the Applicant seeking a reading
in of the relevant provisions of the MSSA only
in the alternative to
a reading in of the relevant provisions of the ISA. To the WLCT, both
Acts are unconstitutional and invalid
to the extent that they do not
extend rights to persons who were in domestic partnerships and where
one partner is deceased.
[64] The WLCT's
submissions were based on the issues faced by women who approach the
centre, almost on a daily basis who enter what
they perceived as a
permanent life partnership are left destitute when those
relationships terminate. That couples live together
without getting
married for various reasons which then results in devastating
situations when it comes to an end and those who
stand to suffer most
include women and children.
[65] The WLCT relies
heavily on the findings of an investigation undertaken by it, which
forms part of the South African Law Reform
Commission of 2006, in
particular the Comm unity Survey by Stats South Africa.
[66] That while
domestic partnership was largely unheard of some fifty years ago,
there has, in recent years, been a global increase
in people publicly
cohabiting including in South Africa. A census conducted in 1996,
more than 1.2 million people reported themselves
as unmarried but
living together. In 2001, the number increased to 2.4 million. In
2011, a further increase to over 3.5 million.
Over this period in
each census, more women were living together than men, the percentage
of co habiting respondents among the
African/Black population has
increased, and they made more than 10% of the 2011 census mentioned
above.
[67] To
the WLCT, the inescapable fact is that women, particularly black
women are most vulnerable to the adverse effects of the
no-re
cognition of domestic partnerships.
The
CGE' s submissions
[68] The Commission
for Gender Equality (the CGE) is introduced as a state institution
established in terms of Chapter 9 of the
Constitution. It is a
juristic person capable of instituting legal proceedings as reflected
in s l 7(1) of the Commission on Gender
Equality Act 39 of 1996.
[69] The CGE avers
that whilst supporting the claim by the Applicant, that s I of the
ISA read with the judgment of
Gory v Kolver NO
2007 (4) SA 97
(CC),
is unconstitutional, primarily on the basis that it
unfairly discriminates on the basis of sexual orientation, but also
on the basis
of marital status, sex and gender.
[70] The CGE makes a
further case that s 2(1) of the MSSA also unfairly discriminates on
the basis of sex, gender and marital status
on the basis that the
MSSA only provides for the enforcement of particular maintenance
obligations after death. The MSSA must recognise
all maintenance
obligations that exist immediately prior to death, irrespective of
the source of such obligation.
[71] The CGE makes
submiss ions that the current content of common law maintenance
obligations for non-married life partners should
be developed.
[72] That the
question of whether the Applicant has a claim for maintenance against
the deceased estate depends on whether or not
the deceased had an
obligation to maintain her prior to his death (this they indicate
they make without arguing whether or not
the Applicant meets the
applicable common law standard, but only about what that standard
should be).
[73] Before I turn
to the issues , perhaps it is best J confirm that the Application
ended up not being opposed any longer, the
Second, Fourth to Tenth
Respondent settled the matter with the Applicant, they were not
interested in opposing the declaratory
orders sought.
[74] The parties
were represented as follows: Mr Stelzner with Mr Rabie and Ms Thiart
appeared for the Applicant; Mr Golding appeared
for the Minister
(more on a watching brief); Ms Christians appeared for the WLCT; Ms
Adhikari appeared with Mr Bishop for the CGE.
The Court is indebted
to Counsel for their comprehensive papers and heads of argument that
were submitted.
[75] I turn now to
the issues that l understand are for this Court to decide on.
THE
ISS UES
[76]
Whether condonation for the late filing of this application
should be granted;
[77]
Whether the issues have become Moot because of the settlement
agreement; if not.
[78]
Whether some provisions of the ISA and the MSSA are
Constitutional and invalid or not; if they are.
[79]
Whether the principle s of stare decisis and the separation of
powers have any impact to the issues
in casu;
and if not;
[80]
Whether what would be a just and equitable remedy in this
case.
I first
turn to loo k at the law on the issues raised.
The
Relevant Legislative Framework
The
Condonation application
[8 1]
In terms of the
Administration of Estates Act (Estates
Act),
Applicant ought to have filed this application within a specified
time frame, the Estates Act provides as follows:
Section 35 (10) thereof
“
Any person aggrieved by any such direction of the
Master or by a refusal of the Master to sustain an objection so
lodged , may apply
by motion to the Court with in thirty days after
the date of such direction or refusal or within such further period
as the Court
may allow , for an order to set aside the Master's
decision and the Court may make such order as it may think fit.”
[6]
[82] The
argument s on this point will be dealt with further below in this
judgment.
The
Constitutional provisions
[83] The
relevant provision s of the Constitution claimed to be relevant are:
Section 9(1)
of the
Constitution
[7]
provides:
(1) Everyone is e qual before the law and has the right
to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative
and
other measures designed to protect or advance persons, or categories
of persons, disadvantaged by unfair discrimination may
be taken.
(3) The stale may not unfairly discriminate directly or indirectly
against anyone on one or more ground s, including race, gender,
sex,
pregnancy. marital status, ethnic or social origin, colour, sexual
orientation, age. disability, religion, conscience, belief,
culture,
language and birth.
(4) No person may unfairly discriminate directly or indirectly
against anyone on one or more grounds in terms of subsection (3).

National legislation must be enacted to prevent or prohibit unfair
discrimination.
(5) Discrimination on one or more of the grounds listed in subsection
(3) is unfair unless it is established that the discrimination
is
fair·.'
[84]
Section 10 Right to Human Dignity
“
Everyone has inherent dignity and the right to
have their dignity respected and protected.”
[85] The
Legislative framework under challenge and claimed to be
unconstitutional include:
Section 1
of the
Intestate Succession Act which
provides that:
(i) If after the commencement of this Act, a person (hereinafter
refer red to as the “deceased”) dies intestate, either

wholly or in part, and-
(a) is survived by a spouse, but not by a descendant, such spouse
shall inherit the intestate estate;
(b) is survived by a descendant , but not by a spouse, such
descendant shall inherit the intestate estate;
(c) is survived by a spouse as well as a descendant-
(i) such spouse shall inherit a child's share of the intestate estate
or so much of the intestate estate as does not exceed in
value the
amount fixed from time to time by the Minister of Justice by notice
in the Gazette, whichever is the greater; and
(ii) such descendant shall inherit the residue (if any) of the
intestate estate;
(d) is not survived by a spouse or descendant, but is survived-
(i) by both his parents, his parents shall inherit the in- 20 testate
estate in equal shares; or
(ii) by one of his parents, the surviving parent shall inherit one
half of the intestate estate and the descendants of the deceased

parent the other half, and if there are no such descendants who have
survived the deceased, the surviving parent shall inherit
the
intestate estate; or
(e) is not survived by a spouse or descendant or parent, but is
survived-
(i) by-
(aa)
descendants
of his deceased mother who are related to the deceased through her
only, as well as by descendants of his deceased father
who are
related to the deceased through him only; or· ·
(bb)
descendants
of his deceased parents who' are related to the deceased through both
such parents; or
(cc)
any of the
descendants mentioned in subparagraph (aa), as well as by any of the
descendants mentioned in subparagraph (bb), the
intestate estate
shall be divided into two equal shares and the descendants related to
the deceased through the deceased mother
shall inherit one half of
the estate and the descendants related to the deceased thro ugh the
deceased father shall inherit the
other half of the estate; or
(ii) only by descendants of one of the deceased parents of the
deceased who are related to the deceased through such parent alone,

such descendants shall inherit the intestate estate;
(f)
is not
survived by a spouse, descendant, parent, or a descendant of a
parent, the other blood relation or blood relations of the
deceased
who are related to him nearest in degree shall inherit the intestate
estate in equal shares.
[86] The
Maintenance of Surviving Spouses Act
Defines
a ' survivor' as:
' ..the surviving spouse in a marriage dissolved by
death, and includes a spouse of a customary marriage which was
dissolved by
a civil marri age contracted by her husband in a
customary marriage to another woman on or after I January 1929 (the
date of commencement
of sections 22 and 23 of the Black
Administration Act,19 27 (Act 38 of 1927)), Property Law Amendment
Act, 1988 (Act 3 of 1988
).'
The
Limitation Clause provides:
[87] Section 36 of
the Constitution requires that a provision that limit s rights should
be a law of general application and that
the limitation should be
reasonable and justifiable in an open and democratic society based on
human dignity and freedom.
The
test for constitutional invalidity
[88] In
Harksen v
Lane and Others 1998 (1) SA (CC) (1997(11) BCLR 1489, at para 54
the
Constitutional Court multi stage enquiry was postulate d as being
necessary when an attack of constitutional invalidity based
on
violation of a right equality.
(a) Does the provision differentiate between people or categories of
people? If so, does the differentiation bear a rational connection
to
a legitimate government purpose? If it does not. then there is a
violation of section 8(1). Even if it does bear a rational

connection, it might nevertheless amount to discrimination.
(b) Does the differentiation a mount to unfair discrimination? This
requires a two-stage analysis:
(i)
Firstly, does the differentiation amount to ' discrimination·?
If it is on a specified ground, then discrimination will
have been
established. If it is not on a specified ground. then whether or not
there is discrimination will depend upon whet her,
objectively, the
ground is based on attributes and characteristics which have the
potential to impair the fundamental human dignity
of persons as human
beings or to affect them adversely in a comparably serious manner.
(ii)
If the differentiation amounts to “discrimination, does it
amount to ‘unfair discrimination’? If it
has been found
to have been on a specified ground, then unfairness will be presumed.
If on an unspecified ground, unfairness will
have to be established
by the complainant. The test of unfairness focuses primarily on the
impact of the discrimination on the
complainant and others in his or
her situation.
If, at the end of this stage of the enquiry, the
differentiation is found not to be unfair, then there will be no
violation of section
8(2).
(c) If the discrimination is found to be unfair then a determination
will have to be made as to whether the provision can be justified

under the limitations clause (section 33 of the interim
Constitution).”
[89] In the National
Coalition Case
[8]
Ackerman J at para 19 citing and following the Harksen case by
Goldstone J as he held that:
[9]
“
In order to determine whether the discriminatory
provision has impacted on complainants unfairly, various factors must
be considered.
These would include:
(a)
the position of the complainant s in society and whether they have
suffered in the past from patterns of disadvantage, whether
the
discrimination in the case und er consideration is on a specified
ground or not;
(b)
the nature of the provision or power and the purpose sought to be
achieved by it. If its purpose is manifestly not directed.
in the
first instance. at impairing the complainants in the manner indicated
above, but is aimed at achieving a worthy and important
societal
goal, such as. for example. the furthering of equality for all, this
purpose may, depending on the facts of the particular
case, have a
significant bearing on the question whether complainants have in fact
suffered the impairment in question. In
Hugo,
for example, the
purpose of the Presidential Act was to benefit three groups or
prisoners, namely, disabled prisoners. young people
and mothers of
young children. as an act of mercy. The fact that all these groups
were regarded as being particularly vulnerable
in our society. and
that in the case of the disabled and the young mothers. they belonged
to groups who had been victims of discrimination
in the past, weighed
with the Court in concluding that the discrimination was not unfair;
(c)
with due regard to (a) and (b) above. and any other relevant factors.
the extent to which the discrimination has affected the
rights or
interests of complainants and whether it has led to an impairment of
their fundamental human dignity or constitutes an
impairment of a
comparably serious nature.
These factors, assessed objectively. will assist in
giving ·precision and elaboration' to the constitutional test
of unfairness.
They do not constitute a closed list. Others may
emerge as our equality jurisprudence continues to develop. In any
event it is
the cumulative effect of these factors that must be
examine d and in respect of which a determination must be made as to
whether
the discrimination is unfair.” (Footnotes omitted).
[90] This would be
the test to be applied if this Court finds that the Applicant has
proven that the impugned provisions of the
ISA and/or the MSSA are
unconstitutional. Before I apply the law to the facts at issue it is
best at this juncture to look at the
reformed law when it comes to
the lives of other types of relationships, the married and same-sex
life partners, and dependents
compared to the heterosexual permanent
life partners.
The
Legal Development over the years on related issues
[91] There is a
plethora of cases which show the development of the law and
inclusivity approach for the relationships as is cited
below which in
my view may be considered towards what ought to be the outcome of the
relief sought by the Applicant.
Medical
Aid Schemes-dependents
[92] Prior to the
advent of the Constitution and the coming into operation of the Medic
al Schemes Act, the constitutionality of
the rule s and regulations
of the police medical scheme, which allowed only the legal spouse,
widow, widower and child of a member
of the police force to be
registered as the member' s dependant, arose in
Langemaat v
Minister of Safety & Security
1998 2 All SA 259
(T);
1998 4
BCLR 444
(T);
1998 8 BLLR 880
(T),
1998 3 SA 312
(T).The court held
that a dependant was someone who relied upon another for maintenance.
It concluded that the effect of the scheme's
rules and regulations
was to exclude many
de facto
de pendants of members of the
police force. This amounted to discrimination against those
dependants and members who had to find
the financial means to pay for
their excluded dependants' medical care. The court declared this
state of affairs unconstitutional
and ordered the chairperson of the
medical scheme to reconsider the application for registration of the
police officer's lesbian
life partner as her dependant.
Muslim
Rite marriages
[93]
During 2004 the Constitution l Court held in
Daniels v Campbell &
Others
[10]
that persons married according to Muslim rites (and in monogamous
relationships) are spouses for the purposes of inheriting or claiming

from estates where the deceased died without leaving a will.
[11]
[94] The
Constitutional Court in
Daniels
interpreted the definition of
“spouse” in the
Intestate Succession Act 81 of 1987
and
the Maintenance of Surviving Spouses Act 27 of 1990 to include
spouses married in terms of Muslim rites.
[95] Importantly ,
the Constitutional Court stated that the issue is not whether it had
been open to the applicant to solemnise
her marriage under the
Marriage Act, but whether, in terms of “
common sense and
justice”
and the values of our Constitution, the objectives
of the Acts would best be furthered by including or excluding her
from the protection
provided.
[12]
The
amended legislation
[96] Same-sex
partners who have not married or entered a civil partnership are
included in the definition of “spouse”
employed in the
Immigration Act,
[13]
drafted in the light of the Constitutional Court's judgment in
National Coalition for Gay and Lesbian Equality v Minister of Home
Affairs.
[14]
This definition makes reference to a “permanent homosexual or
heterosexual relationship which calls for cohabitation and
mutual
financial and emotional support”.
Recognition
to same-sex life partners and the development of the law.
[97] ln
Farr v
Mutual & Federal Insurance Co Ltd
2000 3 SA 684
(C), the
court held that the phrase “a member of the policy holder' s
family” in an insurance policy included the policyholder'
s
long-standing same-sex life partner.
[98] In
Du
Plessis v Road Accident Fund
2003 (11) BCLR 1220
(SCA) the
Supreme Court of Appeal extended the common-law action for damages
for loss of support to a surviving same-sex life partner
whose
deceased life partner had undertaken to maintain him.
[99] In
Satchwell
v President of the Republic of South Africa
2003 11 BCLR 1220
(SCA); 2004 l SA 359 (SCA), the Constitutional Court declared certain
sections of the Judges' Remuneration and Conditions of Employment
Act
88 of 1989 (now repealed) unconstitutional and invalid in so far as
they denied benefits that were afforded to a judge's spouse
to a
judge' s same-sex life partner. It held that the sections should be
read as though they confer benefits on a judge and his
or her spouse
or “partner in a permanent same-sex partnership in which the
partners have undertaken reciprocal duties of
support”.
Acceptance of the
term same sex Life partnership
[100] The concept of
a same-sex life partnership was recognised by the Constitutional
Court in
National Coalition for Gay and Lesbian Equality v
Minister of Home Affairs
2000 1 SA BCLR 39 (CC);
2000 2 SA 1
(CC)
at para [17] in which the concept was applied to six relationships
that were “intimate and mutually interdependent.
“Same-sex
life partnership” subsequently gained acceptance as a term of
art, usually qualified by what Schafer in Clark
(ed)
Family Law
Service
part R calls the superfluous adjective “permanent”.
[101] According to
LA WSA
op cit
para 16 a persistent difficulty presented by the
concept of “life partnership” stems from the failure of
the Constitutional
Court to give it a comprehensive definition. In
consequence, legislation (apart from the
Civil Union Act 17 of 2006
)
which extends rights to same-sex partners does so in an inconsistent
and confusing manner, employing a variety of definitions.
[102] In
National
Coalition for Gay and Lesbian Equality
Ackermann J articulated
marriage as one form of a legally recognised “life
partnership”, and a “same-sex life
partnership” as
another. This
dictum
marked a most significant shift away from
marriage as the fundamental unit by which interpersonal relationships
acquire legal protection.
[103] It also
deliberately left the way open for the extension of this category to
other forms of life partnerships as developed
in
Robinson v Volks
2004 6 BCLR 671
(CC);
2004 6 SA 288
(C) in relation to unmarried
heterosexual cohabitants.
[104] In
Gory v
Kolver
[15]
,
in the context of a same-sex life partnership the unconstitutionality
of section l(1) of the
Intestate Succession Act 81 of 1987
was
confirmed and the Court ordered the reading in after the word
“spouse”, wherever it appears in that section, of
the
words “or partner in a permanent same -sex life partnership in
which the partners have undertaken reciprocal duties of
support'' .
[105] The
difficulties which it was argued had arisen in
Gory
on the
facts of that matter, namely that of establishing the precise moment
at which an unformalised same-sex relationship (which,
in general,
attracts no rights and duties) becomes a “same-sex life
partners hip” (which attracts most of the rights
and duties
associated with marriage) do not present themselves in the present
matter. As was the case in most of the judgments
in which
constitutional protection was extended by a court, the relationship
at issue
in casu
it was submitted had already endured for a
significant period and all (or at least most of) the requirements for
a life partnership
are present in this application.
Reading in
process of the then Aliens Control Act 96 of 1991 (repealed by the
Immigration Act 13 of 2002
))
[106] In
National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs,
the denial of exemptions regarding immigration permits to
foreigners who are same-sex partners of permanent South African
residents
was declared unconstitutional. The Constitutional Court
corrected the defect in the legislation by reading in words - in this
case,
“partner, in a permanent same-sex partnership”.
[107] Schafer in
Clark (ed)
Family Law Service
part R24 argues that the
jurisprudence of the courts appears to have constructed two tiers of
same sex life partnership. By requiring
the voluntary assumption of a
contractual duty of support in some cases but not others, the courts
appear to have created (at least)
two tiers of same-sex life partners
hips to which (at least) two differing sets of rights and duties
might be attached.
[16]
[108] In relation to
immigration rights and the parent-child relationship it would appear
that the assumption of a duty of support
is not a prerequisite.
[17]
[109] However, in
relation to pension benefits a dependant' s action and spousal rights
under the
Intestate Succession Act 81 of 1987
such a duty is
necessary.
[18]
[110] The argument
was that in the light of the above and the further
legal/jurisprudential developments referred to hereafter,
no
justification for treating the Applicant in cassu any differently to
a life partner in a same - sex permanent relationship.
To do so is to
unfairly discriminate against heterosexual partners in favour of same
- sex partners, particularly given that marriage
/ a civil union is
now open to all.
[111] With all the
above set as the foundation I now look at the issues before this
court in turn.
DISCUSSION OF THE
MAIN ISSUES IN THIS MATTER
In
Limine-Amendment of the relief sought
[112] Applicant had
filed a notice to amend her notice of application and an amendment of
the notice in terms of
Rule 28
, amending the notice of motion.
[113] The amendment
was not opposed and was affected, the new details of the amended
notice of motion are cited somewhere above
in this judgment as the
relief sought by the Applicant.
[114] The
Court confirmed the amendment and the Applicant sought to proceed
with her application on the basis of the Notice of Motion
as Amended.
[115] I
turn now to look at the next point the Applicant addressed this Court
on prior to dealing with the issues in the Application,
that of
condonation.
Condonation
[116] The Applicant
having filed her claim against the estate of the deceased with the
Master on 16 October 2017.
[117] The papers
reflect that on 25 May 2018 First Respondent responded with a
decision not accepting the claim of the claimed Universal

partnership, and Applicant was granted 30 days to establish her claim
in a Court of law. The Applicant avers that her attorneys
never
received this correspondence on time but only a certified copy of it
dated 17 August 2018 was obtained.
[118] On
20 July 2020 the Master had also rejected the Applicant's
co-claimant's claim, Mr Arturo Sotnikow at the time.
[119] The Applicant
then gave a comprehensive explanation in her affidavit which in my
view reflect that most of the cause for the
delays were not of her
doing neither were they
ma/a fide
nor wilful. I will not go
the details of these save to state at all times there was constant
communication between the parties explaining
the cause for the delays
and the Applicant seeking an indulgence all of this was attached to
the founding papers.
[120] I considered
Reed and Others v Master of the High Court of South Africa and
Others
[19]
where it was held that:
“The first point can be dealt with briefly. If
s 35(10)
is
interpreted to mean that it creates an expiry period, it would be an
unconstitutional infringement of the right of access to
court because
30 days is an unreasonably and unjustifiably short period within
which to expect a person to institute proceedings
( in the absence of
a condonation provision).
[20]
Interpreting
s35(10)
to be a provision that creates a time period
that is subject to condonation in the event of non-compliance could
render it a reasonable
and justifiable limitation of the right of
access to court.”
[21]
[121] In my view ,
the delays were reasonable further there was a lot of preparation put
to the papers before this court which must
have needed time beyond
the 30-day period stipulated in
Section 35(10).
In my view, it would
be limiting the right of access to court if one would strictly apply
the 30 day time limit in the circumstances.
[122] As indicated,
the Applicant has detailed on paper the reasons for the delay most
were either beyond her control or it was
issues that it humanly
impossible to escape from by either herself or her legal
representatives. I further considered that there
never was opposition
to the late filing of this application and no prejudice was shown to
exist by any of the parties. I am of
the view that failure to grant
the condonation thereof would lead to injustice especially in the
nature of the issues brought in
this matter.
[123] In my view the
Application for condonation stands to be granted.
[124] I tum now to
look at the next hurdle in this matter, which involved whether since
the settlement agreement entered into by
the Applicant with the other
Respondent's bas the issues raised by the Applicant become moot.
Mootness
of the proceedings
[125] I dealt with
what unfolded on the first day of the hearing of this matter where
ultimately a settlement agreement was entered
into between Applicant
and the Second, Fourth to Tenth Respondents. I understand all the
parties who were in court that morning
was caught by surprise of this
development.
[126] Mr Stelzner,
Ms Christians and Ms Adhikari made submissions as they were of the
view that the issues in the application have
not become moot. That it
was only the monetary claim that had been settled and that same does
not dis pose of the whole matter.
They argued further that a
declarator to the Constitutionality of the two pieces of legislation
remains alive with specific reference
to the Applicant and the public
including those in similar position as the Applicant with slight
differentiation.
[127] The Third
Respondent after making a few submissions on this claiming mootness
after the lunch break Mr Golding returned with
an instruction that
the Minister will abide by the decision of the Court and did not
continue with his argument.
[128] In the
Constitutional Court in
National Coalition for Gay and Lesbian
Equality & Others v Minister of Home Affairs
2000 (2) SA 1
(CC)
at para 21 footnote, 18 Ackermann J remarked:
‘
A case is moot and therefore not justiciable if
it no longer presents an existing or live controversy which should
exist if the
Court is to avoid giving advisory opinions on abstract
propositions of law. Such was the case
in JT
Publishing(Pty) Ltd and Another v Minister of Safety and Security and
Others
[1996] ZACC 23
;
1997 (3) SA 514
(CC)
(1996 (12) BCLR 1599)
,
where
Didcott J said the following at para [17] :
“
(T) here can hardly be a clearer instance of
issues that are wholly academic, of issues exciting no interest but a
historical one,
than those on which our ruling is wanted have now
become.”
[129] There are
instances where there have been except ions to the provision,
(initially of
s 21A
of Act 59 of 1959) presently
s 16(2)(a)(i)
of the
Superior Courts Act 10 of 2013
. The courts have exercised a
discretion to hear a matter even where it was moot. This discretion
has been applied in a limited
number of cases, where the appeal,
though moot, raised a discrete legal point which required no merits
or factual matrix to resolve.
[22]
[130] In
this regard, the
Constitutional Court in Independent Electoral
Commission v Langeberg Municipality
[2001] ZACC 23
;
2001
(3) SA 925
(CC), in
paragraph 11 held:
'’... A prerequisite for the exercise of the
discretion is that any order which this Court may make will have some
practical
effect either on the parties or on others.' The question is
thus whether such a discretion should be exercised in this case...
“The following factors have been held to be potentially
relevant:
·
the
nature and extent of the practical effect that any possible order
might have;
·
the
importance of the issue;
·
the
complexity of the issue;
·
the
fullness or otherwise of the argument advanced; and
·
resolving
disputes between different courts.
[23]
[131] In
my view, it seems the legal points whether the Applicant ought to be
recognised as the deceased' s opposite sex permanent
life partner,
the constitutional challenge involving whether there should be a
reading in and a different interpretation that is
required to the ISA
or MSSA remains alive and not merely academic question.
[132] In my view
further, having considered the above case law and taking into account
that even if a
legal point
remains controversial, that does
not save a
matter
from being moot. Also the fact that the
issues between the parties who opposed the application have been
resolved, as
in ca.su,
such does not leave the pertinent
issues of law academic in my view.
[133] In that
regard, I am of the view that the controversies raised by the
Applicant remain alive and therefore, are not moot irrespective
of
the settlement agreement between the Applicant and other Respondents.
This is clear on the content of the settlement agreement
as it cannot
cater for the applicant being recognised as a permanent life
partner/a spouse and having a right to inherit and the
right to claim
in terms of ISA or MOSSA.
[134] I turn now to
deal with the merits before me, the issue of whether there is a
permanent relationship between the Applicant
and the deceased should
be a starting point in my view.
Was there a
Permanent life-partnership relationship?
[135] The facts
placed by the Applicant as stated above are no longer refuted, in
fact they are one way or the other, supported
by many witnesses, most
importantly of which are the only other persons who spent almost
every day with the deceased and the Applicant,
they are: the
deceased's driver Mr Artiro, the Applicant’s employer-Mrs
Solomons, the deceased’s close friends whom
the Applicant and
the deceased frequently confirmed that the two were in a “serious
and affectionate relationship”
in the manner they were with
each other in their presence.
[136] Further, the
relationship that the deceased established with the Applicant's
brother, Givemore, on his arrival in Cape Town
in November 2015 , the
gift the deceased prepared and had given to her for him with a note
welcoming him as a “ brother in
law”.
[137] In my view,
taking into account all the above as well as the content of some of
the entries in the diaries of the deceased
during the period of their
relationship, read in context , confirms the version of the Applicant
and the long term plans (inter
alia attempts at having a baby, buying
a car for the Applicant , the expenses on his banking account for
them). Further, there
were confirmation of them about to be married,
once lobolo was honoured.
[138] I understand
that a life partnership does not in itself give rise to an
ex-Lege
reciprocal duty of support
[24]
.
That there must be in addition a contractually agreed reciprocal duty
of support.
[25]
This is because, given the purposes of the impugned statutes, there
is a causal link between this duty and the specific claims
sought in
respect of MSSA and the ISA. The contractually created reciprocal
support obligations may be agreed expressly or tacitly
and, in the ca
se of the latter may be inferred from the facts of a case.
[26]
The Applicant and the deceased' s relationship will also have to pass
this requirement.
[139] In
Gory
case, the brief facts may be helpful: the parties met in May 2003
and by August 2003 were in a committed monogamous relationship
and
lived together from October 2004 until the deceased' s passing in
April 2005. The High Court made a finding that they were
in a
permanent same-sex life partnership which they had undertaken
reciprocal duties of support, this finding was endorsed by the

Constitutional Court.
[27]
[140] In
Paxiao
(supra)
At
para [29]
“
...Proving the existence of a life partners hip
entails more than showing that the pa1iies cohabited and jointly
contributed to
the upkeep of the common home. It entails, in my view,
demonstrating that the partnership was akin to and had similar
characteristics
- particularly a reciprocal duty of support - to a
marriage.
[28]
Its existence would have to be proved by credible evidence of a
conjugal relationship in which the pa1iies supported and maintained

each other . The implied inference to be drawn from these proven
facts must be that the parties. in the absence of an express
agreement, agreed tacitly that their cohabitation included assuming
reciprocal commitments – i e a duty to support - to each
other.
Courts frequently undertake this exercise without much difficulty -
as this and other cases such as
Amod,
Satchwell
and
Du
Plessis
demonstrate. Life partnerships
therefore do not present exceptional evidentical difficulties for
defendants.”
[29]
[141] In my view,
the fact s of this case remain unrefuted, the evidence is the re
which the inference ca n be drawn to that the
Applicant and the
deceased tacitly agreed they were in a permanent life partnership by,
‘demonstrating that the partnership
was akin to and had similar
characteristics - particularly a reciprocal duty of support - akin to
a marriage” . Further and
in favour of the Applicant
in casu
part of the evidence includes that they were planning to get
married.
[142] In my view
therefore, based on all the above stated facts, I find that the
Applicant and the deceased were permanent life
partners who had
undertaken reciprocal duties of support to one another.
[143] I
turn to look at the impugned provisions challenged. I will begin with
the ISA.
The
challenge to the
Intestate Succession Act
>
[144] Mr Stelzner
argued and the facts reflect that the deceased died intestate .
Section 1(1) of the Intestate Succession Act 81
of 1987 (“the
ISA”) excludes life partners in permanent opposite-sex life
partnerships from inheriting in terms of
this Act. The Applicant's
claim is premise d on her exclusion being invalid and
unconstitutional.
[145] That the
Applicant seeks an order similar to that of
Bhe and Others
[30]
order that the prevailing legal position in respect of ISA and
MSSA
unfairly discriminates against her based on: gender,
alternatively sex; and marital status and sexual orientation, and it
violates
her right to dignity as a surviving opposite sex-life
partner, who but for the death of the deceased would have been
married to
him.
(Bhe and Others,
this was a majority
decision.
[31]
)
.
[146] That ,
Applicant seeks a reading in of the words “
or a partner in
a permanent opposite­ sex life partnership in which the partners
had undertaken reciprocal duties of support
and had been committed to
marrying each other”
wherever the word “
spouse”
appears in the section.
[147] I am of the
view that the issue of the constitutionality or not of the impugned
provisions can only be tested to see whet
her it applies to the
Applicant or other parties relating to her as argued by the WLCT are
discriminated against. unfairly without
any justification or not.
The
issue of Discrimination levelled against the ISA
[148] The essence of
the Applicant's case is that she is discriminated against by the
provisions of section 1(1) of the ISA as it
stands currently, as it
excludes her from inheriting from the deceased's estate.
[149] Section 9 (3)
of the Constitution provides that:
“
The 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.”
[150] I understand
that
the
exclusionary nature of the ISA dates as far back as
December 2005, where the Constitutional Court had declared in
Fourie
[32]
that the failure to allow same sex couple s to marry was
unconstitutional and unlawful. It suspended its order of invalidity
for
12 months to allow Parliament to enact legislation to show the
defect. Just days before the suspension period was granted in that

matter, the matter of
Gory
was decided.
[151] The issue in
Gory
was whether a same sex life partner could inherit from
his deceased partner' s intestate estate. It was a direct attack on
Section
1(1) of the ISA, as
in casu
it was held that the
stated section was unconstitutional and invalid to the extent that it
excluded a “
partner in permanent same-sex life partnerships
in which the partners have undertaken reciprocal duties of support”
from inheriting from their partner' s estate. To cure the
constitutional defect, the Constitutional Court read in “
or
partner in a permanent same-sex life partnership in which the
partners have undertaken reciprocal duties of support” “spouse
”
wherever it occurred in Section 1(1). In that decision therefore,
permanent same-sex life partners were protected under
ISA. The
heterosexual life partners were however left out.
[152] I understand
further that a few days after, on 28 November 2006, Parliament passed
their Civil Union Act 17 of 2006; (CUA)
and it was signed a day later
by the President of the country. The CUA enabled same-sex couples to
legally marry and it permitted
both same-sex and heterosexual couples
to conclude Civil Unions which avoided the language of marriage but
conferred all the rights
and obligations.
[153] The unintended
injustice was that whilst CUA allowed both same-sex and heterosexual
couples to marry, the ISA was not amended
to either undo the
Gory
decision, or to recognise intestate succession for heterosexual
life partners. This left them unable to inherit intestate like the

unmarried same-sex life partners who could. Once more the
heterosexual life partners were left out.
[154] The accidental
injustice led to the litigation in the case of
Laubscher NO v
Duplan
[33]
,
where a dispute had arisen between the same-sex Life partner and
a sibling about who should inherit from the deceased estate due
to
the effect that this was after the
Gory
decision which had
granted the right to inherit to the partner, the brother who was also
the executor argued that
Gory
reading in, should now be
amended in light of the passing of the CUA to allow him to inherit
the entire estate. Therefore, the issue
was whether same-sex life
partners should retain the benefit of the
Gory
reading in
considering the recognition of their right to marry.
[155] The
Constitutional Court held their reading in
Gory
was issued on
an indefinite basis, subject to the amendment or repeal of the ISA by
Parliament. That, Van Heerden AJ in
Gory
was well aware that
same-sex couples would shortly be unentitled to marry (either under
new legislation, or if the
Fourie
suspension period lapsed).
Therefore, without amendment or repeal, the reading in order of the
court will not change.
[156] This is where
it started to get interesting in that the court in
Laubscher,
even
though the issue was not directly before it, Mbha AJ recognised that
(an inequality may exist between the opposite-sex permanent
partners
and their same-sex counterparts by virtue of the
Gory
order.):
“
[31] I agree
that an
inequality may exist between opposite-sex permanent partners and
their same-sex counterparts by virtue of the
Gory
order. [28] The question is whether
same-sex permanent partners ought to be deprived of the
Gory
benefit or whether the benefit should
be extended to include opposite-sex permanent partners.
The respondent refers to this process as “equalising up”
versus “equalising down” and contends that it
is a task
perhaps best left to Parliament. In my view, the Legislature is
competent to adopt either a generous or a more restrictive
approach
to its recognition of permanent relationships, which it has done in
the past. The legislative developments pursuant to
Satchwell
are instructive. [29]
[34]
In that case, this Court declared the omission of the words “or
partner in a permanent same-sex life partnership in which
the
partners have undertaken reciprocal duties of support” from
sections 8 and 9 of the Judges' Remuneration and Conditions
of
Employment Act, [30]
[35]
to be inconsistent with the Constitution.[31]
[36]
(Underlining my emphasis)
[32] Although this Court had specifically ordered that
the benefit be extended to permanent same-sex partners, [32]
[37]
the Legislature, within its rightful discretion, widened the ambit of
protection to include both same-sex and opposite-sex unmarried

partners. [33]
[38]
The result is an apt example of the Legislature “equalising up”
while giving effect to the rights prescribed by this
Court' s order.
In my view, the Court in
Gory
had
clearly foreseen the enactment of CUA and had envisioned that
same-sex permanent partners would continue to be protected despite

not concluding a “ marriage “ (or union as it turned out
to be), under the new dispensation. Any indication to the
contrary is
best left to Parliament to decipher.
[157] Mbha AJ also
held further that:
“
there has never been a Constitutional challenge
for the right of opposite-sex permanent partners to be included
within the ambit
of s1(1) of IS A. An actual cause of action and a
plea of unfair discrimination are thus required before crossing this
bridge.
“
[158] I understand
in casu,
the argument before this court centres around this,
in my view, Applicant ' s cause of action has certainly reached that
bridge,
the test is whether there has been unfair discrimination or
not, before it can be crossed.
[159] It was
contended that the time has come that the heterosexual permanent life
partners be included within the ambit of Section
I ( L) of ISA as was
alluded to in the
Laubscher
judgment, that such a time would
come falls for this court to look into the constitutionality or not
of the said provision.
[160] I now turn to
look at the constitutionality of Section 1(1) of ISA.
Are
there Constitutional rights infringed?
[161] The Applicant
avers that her right to equality and dignity are being infringed upon
by the ISA alternatively the MSSA based
on gender alternatively sex,
marital status, sexual orientation as a surviving opposite sex life
partner who would have been married
to the deceased had he not died.
[162] In Laubscher,
the inequality that may exists between the same-sex and opposite-se x
life partnerships was already anticipated,
in my view what merely
need s to be tested is whether is unfair and/or it can be justified,
amongst others.
[163] I
turn now to and apply the Harksen test to the impugned provision of
the ISA.
Does
the ISA provision differentiate between people?
[164] As indicated
before the
Gory
order included that s1(1) of the LSA was
unconstitutional and invalid to the extent that it excluded a
“partner in a permanent
same-sex life partnership in which the
partners have undertaken reciprocal duties of support” from
inheriting from their
partner' s estate. To cure the Constitutional
defect, the Constitutional Court read-in words “or partner in a
permanent same
sex-life partnership in which the partners have
undertaken reciprocal duties of support” after the word
“spouse”
wherever it occurs in s 1(1)”. This
decision was before the
Civil Union Act (CUA
), which allowed same
-sex couples to marry.
[165] Submissions
were made that the impugned provisions are infringing on Applicant' s
Constitutional right and of those women
similar to her as described
by the WLCT, that their rights to human dignity and equality are
being infringed upon and the provisions
are discriminatory based on
the listed grounds ( of the Constitution) in particular sex, gender,
marital status and sexual orientation.
[166] Ms Christians
whilst supporting the Applicant's contentions argued further and had
shown in my view that there are other women
similar to the Applicant
who have no commitment to marry, whose rights to equality and dignity
are also infringed and at in the
receiving end of the discrimination
even though their circumstances are different to the Applicant, they
all suffer the same fate,
the discrimination is unfair based on the
listed grounds.
[167] Ms Adhikari
had argued that ISA read with Gory is certainly unconstitutional on
basis of the listed grounds as claimed, further
that, in this case
there is no need to prove any permanent life partnership relationship
as the provision(s) are unconstitutional
as they stand.
[168] Applying the
Harksen test stated above in my view there is different treatment for
the same-sex couples in that they stand
to benefit from ISA even if
they are not married
Gory,
there is no legitimate purpose why
the heterosexual permanent life partnerships are not having a similar
benefit, this is tantamount
to different treatment. There is no
reason put forward why the same treatment should not be given to
heterosexual permanent life
partnership couples also.
[169] In my view
this is differentiation which manifests itself based in the listed
grounds in the following manner in
casu:
169.1 marital status - it treats male-female couples differently
based solely on the nature of their relationship whether they
are
married or not:
169.2 sexual orientation- the law provides for greater rights and
benefits to those is same­ sex life partnership that those
in
heterosexual life partnerships: same- sex partners can inherit
(whether they are married or not), whereas heterosexual couples
(who
are not married) cannot. this is differentiation (and is
discriminatory).
169.3 Sex and Gender-mostly (it is women who suffer in these
relationships s 1 (1) therefore “indirectly” leaves them

receiving the different treatment (indirectly) this impacts them as a
group.
[39]
[170] The
discrimination has. for the reasons already mentioned. gravely
affected the rights and interests of heterosexual permanent
life
partners where the parties depended on each other for support hence
the issues before this Court the Applicant has reflected
on this
above, as well as the WLCT for those who are in circumstances similar
to the Applicant’s. There is no legitimate
government purpose
shown to exist for this differentiation.
[171] I am convinced
and it is my view that traditionally it is women who stand to suffer
after years of dedication and support
to the livelihood of a
permanent life partnership they end up being left in the cold,
stripping them of their dignity whilst the
same-sex life partnership
in the same boat as them stand to bene fit, that is an infringement
of the right to equality loo of the
heterosexual life partnership.
[172] In my view a
finding should follow that there is infringement of the Applicant's
right to equality(s 9) and dignity(s 10)
as they are being treated
differently to their same-sex life partnership, the latter do inherit
even if they are not married. This
discrimination is on specified
grounds of marital s tatus, sexual orientation, sex and gender to
which I will elaborate more on
below.
[173] The Harksen
Test continue s with next point:
Does
the differentiation amount to unfair discrimination?
Firstly,
does the differentiation amount to discrimination?
[174] It was argued
that as the impugned legislation the ISA discriminated on listed
grounds, including gender, sex, marital status,
sexual orientation,
in
casu
therefore discrimination ought to be presumed unless
it is established that the discrimination was fair.
[175] Submissions
were made that TSA discriminates against the Applicant as well as
those in similar circumstances as stipulated
by the WLCT on the basis
of gender, sex, marital status, sexual-orientation. There is evidence
above that has shown to support
this including the various legal
developments in favour of the same-sex life partnership to which the
opposite­ sex life partnerships
like the Applicant and those
similar to her situation described by the WCL
T
cannot benefit
from.
[176] There has been
no evidence placed before this Court that this differential treatment
has been fair. ln my view a finding should
follow that the ISA's
different treatment of the Applicant and those like her as described
by the WLCT is discriminatory on listed
grounds the presumption of
discrimination is established.
Secondly,
does it amount to unfair discrimination?
[177]
Section 9(3) of the Constitution states that:
“The State may not unfairly discriminate directly or indirectly
against anyone on one or more grounds .., including “gender,

sex and sexual orientation, marital status”
[40]
[178] In my view as
the approach is that the ISA differentiated on listed grounds as
stated above, unfair discrimination is presumed
until it is
established that it is fair. This is supported by Section 9(5) of the
Constitution w ich provides as follows:
“Discrimination on one or more of the grounds listed in
subsection (3) is unfair unless it is established that the
discrimination
is fair.”
[179] There was no
evidence placed before this Court to rebut the presumption. In my
view a finding should then follow that the
based in the presumption
the discrimination amounts to unfair discrimination.
The
impact of the discrimination
[180] There is no
doubt that there is differentiation on one of the listed grounds in a
way that it has the characteristics to impair
the human dignity of
women since in majority of cases they stand to suffer. Applicant
represent one of this group of women those
who carry with them a
promise to marry, there is also a group of the unmarried who have
waited with no sight of such a proposal
in the horizon they however
have dedicated their lives to the permanent life partnership and both
these kind of women and more
have ended up being marginalised and
discriminated against over the years. I state this because
traditionally mostly male partners
dictate the nature of the
relationship who then enjoy all the benefits of a “vat en
sit”
[41]
relationship with no worry nor desire or feel obliged to take it to
another level for various reasons to be fair. ln my view we
ought to
be careful of another form or a pattern of disadvantage this brings
forth.
[42]
[181] This group may
not have suffered in the past from patterns of disadvantage like
their same-sex counterpart s but the impact
of the end of the
relationship is severe, affecting the dignity, personhood and
identity of heterosexual permanent life partners
deeply. It occurs at
many levels and in many ways and is often difficult to eradicate,
this includes the Applicant's circumstances
and some of the women
described and referred to by the WLCT.
[182] In my view
based on all the above the discrimination is found to be unfair.
There is nothing which was placed on the other
side to balance the
scale. The inevitable conclusion is that the discrimination in ISA is
unfair and therefore in breach of section
9 and 10 of the
Constitution.
Is
there justification to the discrimination?
[183] Section 36 of
the Constitution requires that a provision that limits rights should
be a law of general application and that
the limitation should be
reasonable and justifiable in an open and democratic society based on
hum an dignity, equality and freedom.
para
[58] In the National Coalition case
[43]
Ackermann
J for the majority held
‘
I now apply the section 36( 1) justification
analysis, incorporating that of proportionality applied to the
balancing of different
interests, as enunciated in S
v
Makwanyane and Another
and as adapted for the
1996 Constitution in the
Sodomy
case.
The rights limited, namely equality and dignity, are
important rights going to the core of our constitutional democratic
values
of human dignity, equality and freedom. The forming and
sustaining of intimate personal relationships of the nature here in
issue
are for many individuals essential for their own self-under
standing and for the full development and express io n of their human

personalities. Although expressed in a different context and when
marital status was not a ground specified in sect ion 8(2) of
the
interim Constitution...
[184] The has been
no evidence produced to show any possible justification.
[185] The following
remarks of O' Regan J in
Harksen,
are apposite [footnotes
omitted]
“
I agree that marital status is a matter of
significant importance to all individuals, closely related to human
dignity and liberty.
For most people, the decision to enter into a
permanent personal relation s hip with another is a momentous and
defining one.”
The
effect of omitting same-sex life partnership s from section 25(5)
limits the above rights at a deep and serious level.
[59] There is no interest on the other side that enters the balancing
process.
It is true, as previously stated, that the protection of
family and family life in conventional spousal relationships is an
important
governmental objective, but the extent to which this could
be done would in no way be limited or affected if same-sex life
partners
were appropriately included under the protection of section
25(5)
. There is in my view no justification for the limitation
in the present case and it therefore follows that the provisions of
section
25(5) are inconsistent with the Constitution and invalid.
[60] It is important to indicate and emphasise the precise ambit of
the above holding. The Court is in the present case concerned
only
with partners in permanent same-sex life partnerships.
The
position of unmarried partners in permanent hetero sexual
partnerships and their omission from the provisions of section 25{5)

was never an issue in the case nor was any argument addressed
thereon.
The Court does not reach the latter issue in this case
and I express no view thereon, leaving it completely open. Nor does
the
Court in this case reach the issue of whether, or to what extent,
the law ought to give formal institutional recognition to same-
sex
partnerships and this issue is similarly left open.
[186] In
casu
there has been no justification put forward for the
unfair discrimination which has le d to the infringement of the right
to equality
and dignity.
Importance
of the Right to Equality and Dignity
[187] The right to
equality and dignity are important in our Constitutional dispensation
due to the history of this Country, unfair
discrimination which is
unjustifiable ought to be eradicated. In
Bhe,
Langa DCJ (as he
then was) looking at these two Constitutional rights stated as
follows:
“
(1) Human dignity (section 10 of the
Constitution)
[48] Section 10 of the Constitution provides that “[e]veryone
has inherent dignity and the right to have their dignity respected

and protected.” This Court has repeatedly emphasised the
importance of human dignity in our constitutional order. In
S v
Makwanyane
[50]
[44]
Chaskalson P stated that the right to human dignity was, together
with the right to life, the source of all other rights. Elsewhere,

Ackermann J stated that “the constitutional protection of
dignity requires us to acknowledge the value and worth of all
individuals as members of our society.”[51]
[45]
As a value, Kriegler J referred to human dignity as one of three
“conjoined, reciprocal and covalent values” which
are
foundational to this country.[52]
[46]
In
Dawood and Another v Minister of Home Affairs and Others,
the
Court asserted:
“
The value of dignity in our Constitutional
framework cannot therefore be doubted. The Constitution asserts
dignity to contradict
our past in which human dignity for black South
Africans was routinely and cruelly denied. It asserts it too to
inform the future,
to invest in our democracy respect for the
intrinsic worth of all human beings. Human dignity therefore informs
constitutional
adjudication and interpretation at a range of levels.
It is a value that informs the interpretation of many, possibly all,
other
rights. This Court has already acknowledged the importance of
the constitutional value of dignity in interpreting rights such as

the right to equality, the right not to be punished in a cruel,
inhuman or degrading way, and the right to life. Human dignity
is
also a constitutional value that is of central significance in the
limitations analysis. Section 10, however, makes it plain
that
dignity is not only a
value
fundamental
to our Constitution, it is a justiciable and enforceable
right
that must be respected and protected.”
[some footnotes omitted]
(2) The right to equality and the prohibition of
discrimination (section 9 of the Constitution)
[49] The importance of the right to equality has frequently been
emphasised in the judgments of this Court. In
Fraser v Children's
Court, Pretoria North, and Others,
Mahomed DP had the following
to say:
“
There can be no doubt that the guarantee of
equality Lies at the very heart of the Constitution. It permeates and
defines the very
ethos upon which the Constitution is premised. In
the very first paragraph of the preamble it is declared that there is
a ' ...
need to create a new order . . . in which there is equality
between men and women and people of all races so that all citizens
shall be able to enjoy and exercise their fundamental rights and
freedoms’.”[55]
[47]
[188] The question
of whether an infringement of a right is justifiably and legitimately
limited frequently involves a more factual
enquiry, there must be
evidence led to justify such limitation even though the Court will
have to apply its mind to the law challenged.
Although there has been
no opposition on the issues and the Third Respondent having decided
to abide, based on all the above stated
I cannot find anything to be
said in favour of the relevant provisions of the ISA. In my view, the
current societal demands, the
statistics regarding cohabitants
increasing numbers and the restrictions the ISA on the one side to
the purpose of the provision
on the other side of the scale certainly
the former outweighs any justification there may have been before to
the current limitations
of the rights infringed upon.
[189] In Gory quite
remarkably Under the beading “The unconstitutionality of
section 1(1) of the Act” Van Heerden AJ,
states:
“
Section 1(1) of the Act confers rights of
intestate succession on heterosexual spouses but not on permanent
same-sex life partners.
As these partners are
not legally entitled to marry, this amounts to discrimination on the
listed ground of sexual orientation in
terms of section 9(3) of the
Constitution,
which discrimination is in
terms of section 9(5) presumed to be unfair unless the contrary is
established.
Given the recent juris prudence
of South African courts in relation to permanent same-sex life
partnerships, the failure of section
I(
1) to include within its ambit
surviving partners to permanent same-sex life partnerships in which
the partners have undertaken
reciprocal duties of support is
inconsistent with Mr Gory' s rights to equality and dignity in terms
of sections 9 and IO of the
Constitution. There was no attempt by the
respondents either in the High Court or in this Court to justify the
limitation of Mr
Gory's rights in terms of section 36 and, in my
view, there is no such justification.
It
follows that the High Court correctly found section 1(1) of the Act
to be unconstitutional and invalid to the extent alleged
by Mr Gory
and that paragraph I of the order of the High Court must be
confirmed.” (underlining my emphasis)
[190] Similarly and
in my view having stated all the above I can find no reason why this
same principle should not be applied to
heterosexual life
partnership. Put differently there is no constitutionally justifiable
reason why section 1(1) of the LSA fails
to include within its ambit
surviving partners to ' permanent opposite -sex life partnerships in
which the partners have undertaken
reciprocal duties of support' .
[191] In my view and
based from all the above I find that the failure to include the
hetero sexual partnerships within s 1(1) of
the ISA is
unconstitutional to Ms Bwanya's rights and the rights of all those
similar in her circumstances as described by the
WLCT, particularly
their rights to equality and dignity in terms of sections 9 and 10 of
the Constitution. The impact of the impugned
provision unfairly
discriminates and cannot be justified in our constitutional order.
[192] In that regard
and in my view
Section 1(1)
of the
Intestate Succession Act 81 of
1987
should be declared unconstitutional and invalid and insofar as
it excludes the life partners in permanent opposite-sex life
partnerships
who have undertaken reciprocal duties of support from
inheriting in terms of this Act. l shall deal with proposed remedies
further
below.
[193] I turn now to
look at the further challenged provisions, the MSSA.
The challenge
against the Maintenance of Surviving Spouse ' s Act
[194] In
Volks v
Robinson
the Constitutional Court did not endorse the reading-in
of “opposite sex permanent life partner” into the MSSA,
it rejected
it even though it sympathise with the differential
treatment of married persons on the one hand and those living
together as permanent
life partners.
[195] I understand
the decision in
Paxiao
[48]
as that the common la w duty of support was extended to a claim
against third parties (the RAF). The main issue in that appeal

concerned whether the common law should be developed to extend the
dependants' action to permanent heterosexual relationships.
[196] Tt was held
that the dependent's action is only available to dependents to whom
the deceased owed a legally enforceable duty
to maintain and support
while he or she was alive. Traditionally this was only available to
persons married in accordance with
the Marriage Act, No. 25 of 1961
and later to persons who concluded and registered a civil union in
terms of
section 13
of the
Civil Union Act No. 17 of 2006
.
[197] The court made
a finding that Volks as it held that the right it dealt with was that
of a dependant to sue for this loss arises
because the wrongdoer
unlawfully caused the termination of a legally enforceable duty of
support - it is not a spousal benefit
that accrues to a dependant
only by virtue of a formally recognised marriage.
[49]
[198] At para [27]
Cachalia JA held:
“
Volks,
therefore, does not stand in the way of the
appellants' submission that the common law may be developed to extend
the dependant
s' act io n generally to unmarried parties in
heterosexual relationships or to any other relationships”
[199] In that regard
in Paxiao, Volks was distinguish ed as the court extended to the
permanent life partner in that case see also
in Laubsher, Mbha AJ:
“
[50]
Volks
is
distinguishable not just from the facts, but from the legal mechanism
being used.
Volks
continues
to apply with full precedential force within the context of
maintenance of surviving spouses. To say, as the applicant
suggested,
that we are called upon to decide whether to apply or to roll back on
the
Volks
decision, is
to mischaracterise the issue.”
[200] In my view it
would be to mischaracterise the issue if this Court rolls back on
Volks
even though the fats are distinguishable, there is no
legal mechanism available to depart from
Volks
as the doctrine
of
stare decisis,
the Majority decision in
Volks
remains
binding to the lower courts and therefore this Court is bound by the
decision of
Volks
since the law remains the same. The key is
there must be a duty of support by “operation of law “
before and not a mere
contractual one, which at this stage the
Applicant' s case falls I have found under the latter in my view. The
circumstances may
be looked differently should the ISA finding above
be confirmed.
[201] I now turn and
summarise the basis for the
stare decisis
and apply it to both
the ISA and MSSA
Applying
the
stare decisis
principle
(Doctrine of Precedent) to the ISA and MSSA?
[202] This issue was
raise d by the Third Respondent in its submissions prior to recording
a notice to abide was that
Gory
and
Volks
were binding
to the issues at hand of unconstitutionality of the ISA and MSSA
provision respectively. I do not agree with in full
this argument I
explain this in the following paragraphs.
[203] I am mindful
of the following
dictum
of the Constitutional Court in
Camps
Bay Ratepayers' and Residents' Association v Harrison
2011 (4) SA 42
(CC)
paras 28 - 30 (footnotes omitted) which would find
application:
[28] Considerations underlying the doctrine [of precedent] were
formulated extensively by Hahlo & Kahn. What it boils down
to,
according to the authors, is:
'(C)ertainty, predictability,
reliability, equality. uniformity, convenience: these are the
principal advantages to be gained by
a legal system from the
principle of stare decisis.' Observance of the doctrine has been
insisted upon, both by this court and
by the Supreme Court of Appeal.
And I believe rightly so. The doctrine of precedent not only binds
lower courts, but also binds
courts of final jurisdiction to their
own decisions. These courts can depart from a previous decision of
their own only when satisfied
that that decision is clearly wrong
.
Stare decisis
is therefore not simply a matter of respect for
courts of higher authority. It is a manifestation of the rule of law
itself, which
in tum is a founding value of our Constitution.
To
deviate from this rule is to invite legal chaos
.
[29] I am mindful of the proposition that, when strictly applied, the
doctrine of precedent may inhibit judges in lower courts
from
performing their constitutional duty under s 39(2) of the
Constitution. . . . As to the influence of s 39(2) on
post-constitutional
decisions of higher tribunals, this court
expressed itself in no uncertain terms when it said: 'It does not
matter ... that the
Constitution enjoins all courts to interpret
legislation and to develop the common-law in accordance with the
spirit, purport and
objects of the Bill of Rights. In doing so,
courts are bound to accept the authority and the binding force of
applicable decisions
of higher tribunals. High Courts are obliged to
follow legal interpretations of the SC A, whether they relate to
constitutional
issues or to other issues, and remain so obliged
unless and until the SCA itself decides otherwise or this Court does
so in respect
of a constitutional issue .'
[30] Of course, it is trite that the binding authority
of precedent is limit ed to the
ratio decidendi
(rationale or
basis of deciding), and that it does not extend to
obiter dicta
or
what was said 'by the way'. But the fact that a higher court decides
more than one issue, in arriving at its ultimate disposition
of the
matter before it, does not render the reasoning leading to any one of
these decisions
obiter,
leaving lower courts free to elect
whichever reasoning they prefer to follow. It is tempting to avoid a
decision by higher authority
when one believes it to be plainly
wrong. Judges who embark upon this exercise of a voidance are
invariably convinced that they
are 'doing the right thing'. Yet, they
must bear in mind that unwarranted evasion of a binding decision
undermines the doctrine
of precedent and eventually may lead to the
breakdown of the rule of law itself. If judges believe that there are
good reasons
why a decision binding on them should be changed, the
way to go about it is to formulate those reasons and urge the court
of higher
authority to effect the change. Needless to say this should
be done in a manner which shows courtesy and respect, not only
because
it relates to a higher court, but because collegiality and
mutual respect are owed to all judicial officers, whatever their
standing
in the judicial hierarchy.”
Doctrine
of Precedent -with regards to ISA
[204] ln my view
therefore in Gory (decided before the CUA) the Constitutional Court
found s I (I) of the ISA to be unconstitutional
for its failure to
permit the life partner in a same-sex permanent life partnership to
be the only intestate heir. The decision
established intestate
succession rights for surviving partners in a permanent same-sex life
partnership.
[205] The case
therefore cannot precedent to heterosexual permanent life partnership
it is distinguishable.
[206] In
Laubscher
case (decided after the CUA) held even though CUA was enacted
allowing for same-sex partners to marry, the purposive interpretation

of the Gory order demanded maximising the protection of same-sex
couples who choose not to marry.
[207] The case also
though closer to the issues before this Court the fact that the issue
was of constitutionality for the heterosexual
life partnerships makes
it distinguishable.
[208] It is my view
further that granting the reading in order in terms of the ISA that
may need to be read in conjunction with
or even slightly alter the
reading-in order granted by the Constitutional Court in
Gory,
will
also not constitute non-adherence with the doctrine of precedent.
[50]
Doctrine
of Precedent with regards to the MSSA
[209] In my view
further the relief sought against the MSSA cannot stand based on the
principle of Stare decisis, Paxaio decision
remains distinguish able,
the
Volks
la id principles and decision still stands as
authority to this Court the legal mechanism has not changed, that the
permanent life
partnership with reciprocal duty of support must have
been by operation of law. In
casu,
in my view on facts such a
hurdle was not successfully overcome, may be in the future. The
doctrine of Precedent takes authority.
[210] I turn now to
consider what should the remedy be.
The
Remedy
Separation
Of Powers Doctrine
[211] In
National Coalition for Gay and Lesbian Equality v Minister of Home
Affairs
[51]
In Smit v Minister of Justice and Correctional Services
and Others 2019(2) SACR 516(WCC),· [2019] 4 All SA 542(WCC)
'22. South Africa is a constitutional State predicated
on the separation of powers and a recognition of the functional
independence
of the branches of government. Simply stated, the
separation of powers doctrine is to the effect that unless
constitutionally mandated
or incidental to the powers conferred,
parliament enacts, amends and repeals laws, the executive executes
and enforces laws, and
the judicial branch interprets the laws and
settles disputes of law. As noted by the Constitutional Court in the
First Certification
Judgement, the distribution of power between, and
the functional independence of, the branches of government ensures
accountability,
responsiveness and openness, and prevents the
branches of government from usurping power from each other. Although
the distribution
of power between the different branches of
government is not fixed and immutable, there are certain powers that
cannot be delegated.
In the
Minister of Health[19].
case,
the court stated the position thus:
“
Although there are no bright lines that separate
the roles of the legislature, the executive and the courts from one
another,
there are certain matters that are
pre-eminently within the domain of one or other of the arms of
government and not the others
. All arms of
government should be sensitive to and respect this separation.”
(emphasis added). [Footnotes omitted]
[212] In my view the
issues dealt with here have been long outstand in g the Legislature
has been a waited on to remedy the hardships
that heterosexual
permanent life partnerships go through, the SALRC report and the Bill
as presented by the WLCT remain with the
Legislature giving all the
details and proposals made, but, it is almost two decades and there
is absence of protection for the
cohabitants or opposite sex
permanent-life partnerships.
RELIEF
SOUGHT
[213] In terms of
section 172( I )(a) of the Constitution, a court must declare any law
or conduct that is inconsistent with the
Constitution to be invalid
to the extent of its inconsistency.
[214] The Act
provides that
“
172. (1) When deciding a constitutional matter
within its power, a court-
(a)
must declare that any law
or conduct that is inconsistent with the Constitution is invalid to
the extent of its inconsistency; and
(b)
may make any order that
is just and equitable, including-
(i)
an order limiting the
retrospective effect of the declaration of invalidity; and
(ii)
an order
suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to correct
the defect.
(2)(a)....
(b) A court which makes an order of constitutional
invalidity may grant a temporary interdict or other temporary relief
to a party,
or
may adjourn the proceedings,
pending a decision of the Constitutional Court on the validity of
that Act or conduct.(underling emphasised
for in
casu)
[215] I have
indicated that. in my view, S 1(1) of ISA is inconsistent with the
Constitution and invalid. It was argued that the
operation of the
declaration of invalidity be effective from the date the
Constitutional Court confirms the order if Applicant
succeeds. I am
of the view that would be a just and suit able remedy when it comes
to the order to be made.
The
approach to a remedy
Reading
in:
(1) A
cautionary remark was given in
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[52]
'[75] In deciding to read words into a statute, a court
should also bear in mind that it will not be appropriate to read
words in,
unless in so doing a court can define with sufficient
precision how the statute ought to be extended in order to comply
with the
Constitution. Moreover. when reading in (as when severing) a
court should endeavour to be as faithful as possible to the
legislative
scheme within the constraints of the Constitution. Even
where the remedy of reading in is otherwise justified, it ought not
to
be granted where it would result in an unsupportable budgetary
intrusion.”
[70] I accordingly conclude that reading in is,
depending on all the circumstances. an appropriate form of relief
under section
38 of the Constitution and that
“
... whether a court ‘reads in’ or
‘strikes out’ words from a challenged law, the focus of
the court should
be on the appropriate remedy in the circumstances
and not on the label used to arrive at the result.”
[216]
The real question is whether, in the circumstances of the present
matter. reading in would be just and equitable and an appropriate

remedy.
[217] The court also
considered international jurisdiction, including Canada, USA.
Israeli, Germany where courts have held that
they do possess the
power to read words in a statute where appropriate.
[53]
[218]
In casu
it
was contended that reading into the relevant legislation would be an
appropriate order. The difference between the Applicant
and WLCT
proposal to that of the CGE is the wording to be used , the Applicant
and WLCT are more for section 1(1) of the ISA wherever
the words “
spouse”
is found in the section it be read in that “
or
partner in a permanent opposite-sex life partnership in which the
partners has undertaken reciprocal duties of support.
Similarly,
to the
Bhe
order.
[219] The last
portion which reads
'and had been committed to marrying each
other' ·
Mr Stelzner made submissions that even though it
formed part of the notice of motion it will be left to the court to
decide on whether
it should form part of the insertion, since in any
case it was conceded that it is merely proof to demonstrate permanent
life -
partnership.
[220] The proposed
insertion by the CGE is for the inclusion of both male and female and
the proposed reading in is as follows:
in section 1(1) of ISA the
words
' same sex'
be deleted from the Gory reading-in , and
include after the word “
spouse “ : ' or partner in a
permanent life partnership in which the partners have undertaken
reciprocal duties of support”
[221] In my view the
Applicant's proposal should be accepted however the last portion
'and
had been committed to marrying each other”
should not form
part of the insertion. I state so because I have identified somewhere
in the judgment that the unfair discrimination
is not to the
Applicant only but to all other women in similar circumstances
including those who do not have a commitment to marry
inter alia
those described by the WLCT. Including this portion to the
insertion would be to limit the application of the relevant proposed
insertion. Further in my view it will be exclusionary as if it is
forming a new kind or form of opposite-sex permanent life
partnership-and
therefore a potential unfair discrimination on its
own.
[222] In that regard
and in my view an insertion to the ISA should be affected in as
indicated above that would be a just and equitable
remedy.
[223] Mr Stelzner
also proposed that the order should take into account the settlement
agreement that was reached by the parties.
I understand this would
avoid any confusion or living a
lacunae
regarding that portion
of the issue s that was before this Court when the estate of the
deceased will have to be dealt with in terms
of the Estates Act. J
agree with this approach.
[54]
[224] In my view to
avoid creating practical difficulties the remedy should not apply
retrospectively but from the date the Constitutional
Court rules in
favour of the order, if it so persuaded.
[55]
[225] In my view for
the reasons set out above there is no reason why, in section 1(1) of
the ISA wherever the words “
spouse”
is found he
words “
or partner in a permanent opposite-sex life
partnership in which the partners has undertaken reciprocal duties of
support”
should not be read into the Act giving substantive
relief to the Applicant and to those in similar circumstances and as
described
by the WLCT.
[226] Now remains
the issue of costs. I now turn to address it.
Costs
[227] It
was contended should the Applicant succeed with he r claim the costs
of the application should be borne by the Third Respondent.
[228] The
further submission made were that it be included that the applicant
should not be held liable for the costs incurred by
the estate or by
the state or by any other party to this application. I agree.
[229] The
rejected claim against the deceased' estate by the Applicant was the
reason this matter came before this Court. There
is no legislation
available for her to pursue the claim against the deceased' s estate,
the only remedy was to seek a Constitutional
remedy. The estate was
therefore dragged to this Court as it correctly done so to protect
its interest.
[230] Since the
Applicant brought this Application due to the variances in the ISA
and MSSA which has been an outstanding issue
that have required the
attention of the state for some time now, she ought to be covered for
her costs.
[231] The Applicant
has raised important issues of law. especially in relation to the ISA
and MSA Act. I am persuaded that the scope
and complexity of the
matter needed the employment of three counsel.
[232] In my view and
based on the above the Third Respondent should bear the costs of the
application.
In
Conclusion
[233] In
my view and in the circumstances the application should partly
succeed in the and the following order is made:
1. The Applicant's failure to launch this application within 30 days
of the First Respondent' s notification dated 20 July 2018
in terms
of which it was recorded that the Second Respondent was not prepared
to accept the Applicant's claim of an “alleged
universal
partnership” with the late AS Ruch, hereafter referred to as
“the deceased”, and the Applicant was
granted 30 days to
establish her claim, is condoned;
2. It is declared that:
2.1
the Applicant 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;
2.2
Section 1(1)
of the
Intestate Succession Act 81 of 1987
is
unconstitutional and invalid insofar as it excludes the surviving
life partner in a permanent opposite-sex life partnership
from
inheriting in terms of this Act;
2.3
the omission in
Section 1(1)
of the
Intestate Succession Act 81 of
1987
after the words “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;
2.4
the
Intestate Succession Act 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.
3. Until the aforesaid defects are corrected by the legislature to
provide for the above, the First
and Second
Respondents are
directed to give effect to the terms of this order in respect of the
Applicant to the extent of the settlement which
was reached between
the Applicant Second, Fourth to Tenth Respondent which settlement
agreement was made an order of this Court];
4. It is recorded that the Second Respondent has undertaken to comply
with the aforesaid settlement agreement and order in the
winding up
of the estate of the late A.S. Ruch No. 007400 / 2016 under the
auspices and control of the First Respondent;
5. The First Respondent is authorised and directed to ensure that
effect is given to the terms of this Order in the liquidation
and
distribution of the said estate of the late A.S. Ruch No. 007400 /
2016, to the extent of the settlement which was reached
between the
Applicant and the Second Respondent, which settlement agreement was
made an order of this Court;
10. The Third Respondent is ordered to pay the costs of the
application, which costs are to include the costs of three counsel

where so employed.
___________________
PMAGONA
Acting
Judge of the High Court
APPEARANCES:
For the
Applicant

Adv. R G Stelzner SC
Adv P J Rabie
Adv A Thiart
Instructed
by

Martin Bey
STBB
For the
First Amicus Curiae

Adv A Christians
instructed
by

C May
For the
Second Amicus Curiae

Adv M Adhikari
Adv M Bishop
Instructed
by

AL Payne
Legal Resources Centre
For the
First and Third Respondents

Mr L Golding
State Attorney's Office
For the
Second and Fourth to Tenth Respondents
AdvN Bawa
SC
Adv S van Zyl
Instructed
by

P Le Roux
Herold Gie Attorneys
[1]
Record p 11 and p 724 AFA par 18 - 19 page 4; ARA par 8 page 3
[2]
See in this regard LAWSA Marriage Vol 23(2) Third Edition paragraphs
14 and 17.
[3]
Section 38 of the Constitution provides that:
“Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill or Rights
has
been infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights. The persons
who may
approach a court are-
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in
their own name;
(c) anyone acting as a member of, or in the interest of. a group or
class of persons;
(d) anyone acting in the public interest”.
[4]
Record 642: WLCT Affidavit para 8
[5]
Record 642: WLCT Affidavit para 9
[6]
Administration of Estate Act 66 of 1965.
[7]
Republic of South Africa Constitution Act 108, 1996
[8]
National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and others; (CCT11/98)
[1998] ZACC 15
, 1
999 (1)
SA 6
;
1998 (12) BCLR 1
517 (9 October 1998)
[9]
Para 41, Harksen supra
[10]
2004 (5) SA 331 (CC)
[11]
Daniels v Campbell & Others
[2004] ZACC 14
;
2004 (5) SA 331
(CC) at paragraph 37
[12]
[2004] ZACC 14
;
2004 (5) SA 331
(CC) at paragraph 25
[13]
13 of 2002. Sees 1(1) sv “spouse”
[14]
See also Minister of Home Affairs v Fourie; Lesbian & Gay
Equality Project v Minister of Home Affairs
2006 3 BCLR 355
(CC);
2006 I SA 524 (CC)
[15]
2007 (4) SA 97 (CC)
[16]
See Du Plessis v Road Accident Fund
2003 11 BCLR 1220
(SCA);
2004 1
SA 359
(SCA) and cf National Coalition for Gay & Lesbian
Equality v Minister of Home Affairs 2000 I BCLR 39 (CC); 2000 2 SA l
(CC).
[17]
Du Toit v Minister of Welfare & Population Development
[2002] ZACC 20
;
2002 10
BCLR 1006
(CC);
2003 2 SA 198
(CC); J v Director-General, Department
of Home Affairs 2003 5 BCL R 463 (CC); 2003 5 SA 621 (CC)
[18]
See Satchwell v President of the Republic of SA
2002 9 BCLR 986
(CC);
2002 6 SA 1
(CC); Satchwell v President of the Republic of SA
2004 1 BCLR 1 (CC); 2003 4 SA 266 (CC).
[19]
2005(2) All SA 429 (E)
[20]
Mhlomi v Minister of Defence 1997 (I) SA 124 (CC): 1 9
96 (12) BCLR
1
59 (CC)
[21]
See Mhlomi v Minister of Defence supra, paras 17-1 8 in which
Didcott J considered the effect on an expiry period of a condonation

provision. The mere fact that the possibility of condonation is
provided for does not. on its own. mean that a provision providing

for a time period for the institution of proceedings is a reasonable
and justifiable limitation of the right of access to court.
See in
this regard Moise v Greater Germiston Transitional Local Council:
Minister of Justice and Constitutional Development Intervening

(Women's legal Centre as Amicus Curiae)
(2001) ZACC 21
;
2001 (4) SA
49l
(CC);
200I (8) BCLR 765
(CC), para 15.
[22]
See Natal Rugby Union v Gould 1999 (1) SA 432 (SCA)
[23]
See also AAA Investment s Pty (Ltd) v Micro Finance Regulatory
Council and Another
[2006] ZACC 9
; 2007 (I) SA 343 (CC);
2006 (11)
BCLR 1255
(CC) at para 27.
[24]
See MacDonald v Young 2012 (3) SA l (SCA) paras 17 to 19
[25]
See Paixao v RAF
2012 (6) SA 377
(SCA) Smith Dissolution pp 413, 418
and 422 to 426
[26]
Smith, Dissolution (supra)
[27]
Gory v Kolver NO and Others
2007 (4) SA 97
(CC) para 51
[28]
Du Plessis v Road Accident Fund 2004 ( I ) 359 (SCA) para 43. It
follows too that to the extent that the court in Susara Meyer
v Road
Accident Fund (Unreported) Case No: 29950/2004 28/3/2006, found that
Volks supported its rejection of a dependant' s claim
of a permanent
life partnership, it erred.
[29]
McDonald v Young 201
2 (3) SA 1
(SCA) para 14.
[30]
Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole
and Others; SA Human Rights Commission and Another v President
of
the RSA and Another 2005 (1) BCLR l (CC)
[31]
Chaskalson CJ, Madala J, Mokgoro J, Moseneke J, O' Rega n J, Sachs
J. Skweyiya J. Van der Westhuizen J and Yacoob J concur in
t he
judgment of concur in the judgment of Langa DCJ
[32]
Minister of Home Affairs & Another v Fourie & Another
(2005)
ZACC 19
;
2006 (3) BCLR 355
(CC) 2006 (I) SA 524 (CC)
[33]
(supra)
[34]
Satchwell v President of the Republic of South Africa
[2002] ZACC
18
; 2002 (6) SA I (CC)
[2002] ZACC 18
; ;
2002 (9) BCLR 986
(CC) (Sa1chwell /).
[35]
88 of 1989
[36]
Satchwell 1 at para 37
[37]
National Coalition case at para 76
[38]
See the definition of “partner” in sect ion I of the
Judge' s Remuneration and Conditions of Employment Act 47 of
2001
.See also the effect of the reading-in order in National Coalition
for Gay and Lesbian Equality v Minister of Home Affairs
[1999] ZACC
l7
; 2000 (2) SA I (CC); 2000 ( l) BCLR 39 (CC) (National Coalition)
at para 98 on the definition of “spouse” in section
1 of
the Immigration Act 13 of 2002 (previously the Aliens Control Act 96
of 1991).
[39]
See also City Council of Pretoria v Walker [
1998) ZACC 1
;
1998 (2)
SA 363
(CC);
1998 (3) BCLR 257
(CC) at para 31
[40]
(supra)
[41]
Township term sometimes used for those in a cohabitation
relationship (Afrikaans language)
[42]
Brink v Kitshoff. NO (CCT15/95)[1996] ZACC 9
[1996] ZACC 9
; ;
1996 (4) SA 197
;
1996
(6) BCLR 752
(15 May 1996)where Chaskalson J) held at para [?]
Although in our society, discrimination on grounds of sex has not
been as visible,
nor as widely condemned, as discrimination on
grounds of race, it has nevertheless resulted in deep patterns of
disadvantage.
These patterns of disadvantage are particularly acute
in the case of black women, as race and gender discrimination
overlap.
That all such discrimination needs to be eradicated from
our society is a key message of the Constitution.”
[43]
National Coalition for Gay and Lesbian Equality and Others v
Minister of Home Affairs and Others (CCT I0/99) (1999] ZACC 17 ;

2000 (2) SA I ; 2000 (I) BCLR39 (2 December 1999)
[44]
[1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (2) SACR 1 (CC); 1995 (6)
BCLR 665 (CC);
[45]
National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and Others
[1998] ZACC 15
;
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) at para 28.
[46]
S v Mamabolo (E TV and Others Intervening)
(2001) ZACC 17
;
2001 (3)
SA 409
(CC);
2001 (5) BCLR 449
(CC) at para 41
[47]
1997 (2) SA 261
(CC);
1997 (2) BCLR 153
(CC) at para 20. This
judgment dealt with section 8 of the interim Constitution but the
remarks remain apposite to section 9
of the final Constitution. See
also Makwanyane above n 49 at paras 155-66 and 262; Shabalala and
Others v Attorney-General of
Transvaal, and Another
[1995] ZACC 12
;
1996 ( I) SA 725 (CC);
1995 (12) BCLR 1593
(CC) at para 26; Brink
above n 34 at para 33; Satchwell v President of the Republic of
South Africa and Another
[2002] ZACC 18
; 2002 (6) SA I (CC)
[2002] ZACC 18
; ;
2002
(9) BCLR 986
at para 18.
[48]
UPRME Court of Appeal, mentioned supra
[49]
Smith and J Heaton ‘Extension of the dependant's action to
heterosexual life partners after Volks NO v Robinson and the
coming
into operation of the
Civil Union Act
- thus far and no further?’
(2012) THRHR 472
at 479.
[50]
For a comprehensive discussion of this issue, see Smith
2016 SAJHR
144
- 153.
[51]
[1999] ZACC 17
; 2000 (2) SA l (CC); 2000 (1) BCLR 39 (CC)
[52]
(CCTI0/99)[1999)ZACC 17
[1999] ZACC 17
; ;
2000 (2) SA 1
;
2000 (1) BCLR 39
(2 December
1999)
[53]
National Coalition at para [71]
[54]
S 172(2)(b) of the Constitution
[55]
S 172(2)(a) of the Constitution