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[2016] ZAGPPHC 892
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Du Toit v Greyling NO (78173/2014) [2016] ZAGPPHC 892 (23 September 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
CASE
NO: 78173/2014
23/9/2016
Reportable:
Yes
Of
interest to other judges: Yes
In
the matter between:
MARTHA
LOUISE DU
TOIT
Respondent
I
Plaintiff
and
LAUREN
GREYLING
NO
Excipient
I
Defendant
JUDGMENT
SIWENDU,
AJ:
[1]
Can a cohabitee in a heterosexual partnership or domestic partnership
claim maintenance against the deceased estate of an erstwhile
partner? This question came before me for a consideration of an
exception raised by the defendant against the plaintiff's claim
in
terms of Rule 23(1) of the Uniform Rules of Court. It was submitted
that on all possible readings of the claim, there no is
legal basis
to sustain it as there is no duty to maintain a heterosexual domestic
partner beyond the life time of a partner, therefore,
the claim must
be dismissed with costs.
[2]
The plaintiff had instituted a
claim for payment in the amount of R 5 276 983.00 against the
Executor of the deceased estate ('the
estate") of her erstwhile
partner, Mr John Charles Maizey. The amount claimed is based on an
actuarial calculation by Gerard
Jacobson Consulting Actuaries.
[1]
The claim is framed as one based on maintenance
[2]
on the one hand as well as one of a creditor of the deceased estate
on the other.
[3]
The facts which are common cause, are that:
[3.1] The plaintiff and the deceased
lived together from September 2004 to August 2011.
[3.2] At the time of cohabitation, the
deceased was estranged from his wife. He had been married in
community of property and the
marriage subsisted until he died (they
had not divorced).
[3.3] At the time of his death, the
deceased had bequeathed the property in which he and the plaintiff
lived to the plaintiff.
[3]
[4]
The plaintiff states that she
and the deceased had lived together as husband and wife. The deceased
had fully maintained her as
if she was wholly dependent on him albeit
that she was employed as account executive at Maizey's Plastics (Pty)
(Ltd).
[4]
[5]
The plaintiff alleges that the
executor of the estate has failed and/ or refuses and neglects to
admit and/ or confirm the claim
on the grounds that it is late and
invalid. In her amended particulars of claim, she states that the
deceased had made an undertaking
to her that there would be more than
enough money in his part of the joint estate to care for her until
she dies.
[5]
She claims that the deceased was aware that the plaintiff did not
have the means or ability to compensate the deceased's wife for
her
undivided half- share in the property bequeathed to the plaintiff.
[6]
In defence of the claim, the defendant submits that the plaintiff's
claim can only be based on the provisions of the Maintenance
of
Surviving Spouses Act 27 of 1990 ("the Act"). The act,
defines a
"survivor''
to mean the surviving spouse in a
marriage dissolved by death. Thus, a cohabitee is excluded from this
definition. The defendant
states that the deceased and the plaintiff
had co-habited in a heterosexual relationship, and, there is no legal
duty to maintain
a life partner in a heterosexual relationship. If
there was, such a duty, it terminates upon the death of the life
partner.
[7]
The defendant premised her
defence on the decision of the Constitutional Court in
Volks
v Robinson.
[6]
In this case, Davis J,
sitting as the court of the first instance had ruled that the
definition of
"survivor''
in the act was
unconstitutional and invalid in that it omitted permanent life
partnerships.
[7]
The Constitutional Court, in a majority judgment by Skweyiya J.
however held that the meaning of
"surviving
spouse"
must be
construed to mean and be limited to a party to a
legally
recognised marriage. It
does not extend to life partners.
[8]
[8]
The significance of the
Constitutional Court decision in relation to the matter before me is
that it held that the law may distinguish
by conferring legal duties,
obligations and benefits between married and unmarried people, and
that such a distinction does not
offend the right to equality and is
thus not unfair.
[9]
[9]
Mr South SC argued on behalf of the defendant that what defeats the
plaintiff's claim is that prior to 1990, a surviving spouse
had no
claim for maintenance. The legislature saw a need for a change, and
it intervened by enacting the act (Maintenance of Surviving
Spouses
Act 27 of 1990) relied upon. The only way to remedy the position is
for Parliament to enact a new law.
[10]
Mr De Klerk SC, while conceding
that the existing legislation is against the plaintiff, argued that I
should come to the aid of
the plaintiff on two grounds. The first
ground is that Parliament had neglected its duty and had failed to
pass. The Domestic Partnership
Bill ("the Bill") which was
published for public comment in 2008
[10]
.
When invited to clarify the basis upon which I can intervene in what
would be a trespass into the domain of Parliament, he conceded
that
the doctrine of separation of powers prevents the trespass contended
for.
[11]
This concession was correctly
made. The most important consideration is that a determination of
whether or not Parliament failed
and/or neglected its duty lies
within the exclusive jurisdiction of the Constitutional Court in
terms of Section
167
(4)(e).
[11]
This was confirmed in the
decision of the Constitutional Court,
My
Vote Counts v The Speaker of the National Assembly and Others 2015
(12) BLRC 1407
CC., namely,
that where the validity of the existing legislation is not
challenged, the constitutional court has exclusive jurisdiction
in
respect thereof.
[12]
As a second ground, Mr De Klerk
SC, premised his argument on the minority judgment of the
Constitutional Court in
Volks
to support the contention
that I have a general obligation to develop common law in terms of
Section 39(2) read with Section 173
of the Constitution. In response
to the question of the precedent setting and binding nature of
Volk,
submitted that when
reliance is placed on
Paulsen
v Slip Knot Investment
777
(Pty) (Ltd) 2015(3) 479 (CC)
523,
the basis for the
intervention would be that common law is deficient. In
Paulsen,
the Constitutional Court
held that
"the
authority imposed upon the courts in Section 39 (2) of the
Constitution is extensive, requiring the courts to be alert
to the
normative framework of the Constitution not only when some startling
new development of common law is in issue,
but in all cases where the
incremental development of the rule is in issue"
[12]
.
He referred me to the article by Smith. This article shows that the
incremental recognition of rights of cohabiting partners has
resulted
in an anomalous legal position where unmarried heterosexual couples
have less protection than unmarried same sex couples.
[13]
He submitted that there is now discrimination on the grounds of
"marital choice"; "sexual orientation" and
"the
right to dignity" is infringed upon as the Bill has not been
passed.
[14]
He argued that the decision in
Volks
ought to have been
revisited as a result.
[13]
The differing approaches and
value choices
[15]
made by the constitutional court to determine the issue is evident
from the dissenting judgments of Mokgoro, and O' Regan where
the
Justices state that:
"However, not every family is
founded on a marriage recognised
as
such in law. Yet members of
such families often play the same roles as in families which are
founded on marriage and provide companionship,
support and security
to one another".
[16]
[14]
And Sachs J where he states that:
"if the resulting
relationships involve clearly acknowledged commitments to provide
mutual support and to promote respect for
stable family life, then
the law should not be astute to penalise or ignore them because they
are unconventional. It should certainly
not
refuse them recognition
because of any moral prejudice, whether open or unconscious, against
them"
[17]
[15]
The judgment of Sachs J also
refers to representations made by the Department of Justice and
Constitutional Development at the time,
and observes that over-
ambitious judicial prescription could impede comprehensive
legislative reform and retard rather than advance
the achievement of
fairness in the field.
[18]
[16]
Mr South SC contended that
Volks
was premised on the view that
unmarried heterosexual partners choose not to marry. I am in
agreement with Mr de Klerk SC, that the
delay in regulation has
resulted in a gap between the developments in common law on the one
hand and the legal reform through the
legislative process on the
other. There is unequal protection afforded between heterosexual and
same-sex unmarried persons subsequent
to the decision in
Volks
following the enactment of the
Civil Union Act 17 of 2006
. It is
imperative that I observe in this judgment that the protections
afforded to same-sex unmarried persons were rightfully asserted
and
hard won over time resulting in the enactment of the
Civil Union Act.
[17
]
Notwithstanding, I am bound by the decisions of the Constitutional
Court and do not read the court's reasoning and interpretation
of
Section 39(2)
to grant extensive authority to overrule that Court's
decisions under the ambit of the general obligation to develop common
law,
nor can I develop common law where the common law position has
been legislated upon.
[18]
This brings me to the remedies available to the plaintiff and whether
the issues raised in argument can appropriately be dealt
with by this
court in these proceedings as currently framed. Mr South SC on behalf
of the defendant conceded that there is unequal
protection between
unmarried heterosexual and unmarried same sex couples. He however
submitted that the only basis upon which the
court can intervene is
"by attacking the legislation in its entirety or a provision
thereof'.
[19]
This argument invokes the
principle of subsidiarity which underpins the jurisprudence developed
by the constitutional court. The
principle stated by O'Regan J in
Mazibuko
[19]
,
is that:
"where legislation has been
enacted to give effect to a right, a litigant should rely on that
legislation in order to give
effect to the right or alternatively
challenge the legislation as being inconsistent with the
Constitution".
[20]
This principle finds application in the present case, and has
recently been confirmed in the decision
My Vote Counts NPC v
Speaker of the National Assembly and Others (CCT121114)
[2015] ZACC
31
(30 September 2015)
that:
"The principle of
subsidiarity enjoins a litigant who complains about shortcomings in
legislation enacted to give effect to
a constitutional right to
challenge the constitutional validity of that legislation instead of
relying directly on the constitutional
right"
[21]
The constitutional challenge to the act is not a case before me, and
as stated, am also bound by the decision in
Volks,
and the
matter is not simply one of developing common law as argued.
[22]
In view of the developments
since the decision in
Volks,
and the unintended
consequence which has resulted in an inconsistency in the
constitutional protection afforded to unmarried heterosexual
partners, a second opportunity to mount a full frontal attack on the
legislation is available to the plaintiff on any and/or all
of the
grounds advanced in argument. In this sense, the plaintiff can
approach the Constitutional Court by either invoking its
exclusive
jurisdiction in terms of section 167(4)(e)
[20]
or by seeking direct access in terms of section 167(6)
[21]
of the constitution.
[23]
In this regard, the exception raised in respect of the claim for
maintenance arising from the Plaintiff's position as a cohabitee
of
the deceased must be upheld.
[24]
The particulars of claim disclose that the plaintiff had also
instituted proceedings in the capacity of a creditor of the deceased
estate. Mr South SC agreed that an adverse finding on the exception
does not preclude the plaintiff's claim in terms of the will.
[25]
The question of costs was not strenuously argued albeit that Mr South
SC sought an order as to cost. It is the principle that
a successful
party is entitled to its costs albeit that such costs are at the
discretion of the court. The matter before me raises
important legal
questions in the development of Private/ Family Law. In this regard,
I deem it not appropriate to award costs against
the plaintiff.
[26]
In the circumstances, I make the following order:
[26.1] The exception raised in respect
of the maintenance claim is upheld;
[26.2] Each party is to pay its own
costs
____________________________
SIWENDU
NT
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO
.
: 78173/2014
HEARD
ON
: 14 SEPTEMBER 2016
COUNSEL
FOR THE PLAINTIFF/
: ADV L.S. DE KLERK, SC
RESPONDENT
ATTORNEYS
FOR PLAINTIFF/
: RYNHART KRUGER ATTORNEYS
RESPONDENT
COUNSEL
FOR THE DEFENDANT/
: ADV.
SOUTH, SC
EXCIPIENT
ATTORNEYS
FOR THE DEFENDANT/
: TIAAN SMUTS ATTORNEYS
EXCIPIENT
DATE
OF JUDGMENT
: 23 SEPTEMBER 2016
[1]
Actuarial Report
[2]
Based on a duty to maintain the claimant
[3]
Testamentary Will of the deceased, annexure "BDO 1.1"
[4]
Particulars of Claim, paragraph 5 ; Amended Particulars of Claim
Paragraph 5
[5]
Amended Particulars of Claim, paragraph 4.5, page 45
[6]
Volks NO v Robinson and Others (CCT12/04)
[2005] ZACC 2
;
2005 (5)
BCLR 446
(CC) (21 February 2005)
[7]
See Volks NO v Robinson supra at paragraph 24
[8]
See page 21 at paragraph 45
[9]
(footnote the paragraph and reference in the page)
[10]
No. 30663 Government Gazette, 14 January 2008, Notice 36 of 2008,
Department of Home Affairs Domestic Partnerships Bill, 2008
[11]
Section 167 of the Constitution of South Africa Act 108 of 1996:
(4) Only the Constitutional Court may
–
(a) decide disputes between organs of
state in the national or provincial sphere concerning the
constitutional status, powers
or functions of any of those organs of
state;
(b) decide on the constitutionality
of any parliamentary or provincial Bill, but may do so only in the
circumstances anticipated
in section 79 or 121;
(c) decide applications envisaged in
section 80 or 122;
(d) decide on the constitutionality
of any amendment to the Constitution;
(e) decide that Parliament or the
President has failed to fulfil a constitutional obligation; or
(f) certify a provincial constitution
in terms of section 144.
[12]
See Paulsen and Another v Slip Knot Investment 777 (Pty) Ltd 2015
(3) 479 (CC) 523 at paragraph 116
[13]
"Married-Unmarried :Unmarried same-sex couples more favourable
legal position than heterosexual counterparts"; De Rebus
July
2016
[14]
The
Civil Union Act 17 of 2006
protects same sex-marriages, the
Domestic Partnerships Bill 2008 (GN36GG30663/14-1-2008)
[15]
Skweyiya seems to uphold the freedom of contract while the
dissenting judgment Makgoro and O'Regan adopt a contextual approach
to the freedom of contract.
[16]
See Volks NO v Robinson and Others (CCT12/04) [2005] at paragraph
106
[17]
See Volks NO vs Robinson supra at paragraph 156
[18]
Volks NO v Robinson supra at 238
[19]
Mazibuko and Others v City of Johannesburg and Others (CCT 39/09)
[2009] ZACC 28
;
2010 (3) BCLR 239
(CC);
2010 (4) SA 1(CC)
(8 October
2009)
[20]
Section 167
- (4) "Only the Constitutional Court may-(e) decide
that Parliament or the President has failed to fulfil a
constitutional
obligation ..."
[21]
Section 167(6)
- "National legislation or the rules of the
Constitutional Court must allow a person, when it is in the
interests of justice
and with leave of the Constitutional Court"