Charlene May and Mandi Mudarikwa unpack the Bwanya Judgement, which points to women in our patriarchal society often lacking the bargaining power in relationships to negotiate a marriage and highlights how we can change that in a court of law.
“[S]hould a person who shared her home and life with her deceased partner, born and raised children with him, cared for him in health and sickness, and dedicated her life to support the family they created together, be treated as a legal stranger to his estate, with no claim for subsistence because they were never married.” – Sachs J
ADDRESSING THE ERRORS OF THE PAST
Sachs J wrote the quote above in his dissent in the Constitutional Court decision of Volks NO v Robinson, which was the first case in which the Constitutional Court had to grapple with the recognition of domestic partnerships in respect of the Maintenance of Surviving Spouses Act (MSSA). The majority of judges of the Constitutional Court upheld that the law provided that only a spouse, defined as a person married in terms of South African marriage law, could lay claim to maintenance following the death of the other spouse.
In 2016, Statistics South Africa (Stats SA) recorded an estimated 3.2 million South Africans in cohabitating relationships outside
of marriage. By all indications, this number was set to increase, as has been the trend not only here, but also internationally. Our society has never been stagnant, on the contrary, it is continuously evolving and progressing. Under apartheid, our family law legislation was designed and implemented to advance the interests of a very particular group of people, and through targeted legislation, some South Africans who fell outside of the “preferred” families and race experienced devastating exclusion and marginalisation.
Through legislation and regulation, the state effectively tried to entrench a normative acceptable family, and anyone outside of this normative acceptable family found themselves ostracised, without rights and often on the wrong side of the law. The Constitutional Court has now corrected this position in a judgement penned by Madlanga J and handed down on 31 December 2021 in the Bwanya v The Master of the High Court matter. The judgement draws from intersectional analysis presented to the Court by the Women’s Legal Centre (WLC).
UNPACKING THE BWANYA JUDGEMENT
In the Bwanya judgement, the Constitutional Court recognised that family structures and related social practices change over time. The Court cautioned against seeking to define or entrench only one form of family at the expense of the many diverse forms that families can and do take. The Court emphasised that in recognising the diversity of families, it is not seeking to diminish the important role that marriage plays in our society, because, as Madlanga J notes, “marriage is not that fickle”.
Accordingly, any recognition or protection given to domestic life partnerships does not detract from the position of marriage in our society. What it does, however, is affirm our diversity as a people, and the rights of all people to enjoy the protection of the Constitution. The Court accepted that in our patriarchal society women often lack the bargaining power in relationships to negotiate a marriage. The Court referenced the evidence that was placed before it by the WLC, which provided many varying reasons why the choice to marry is not always available to women and affirmed that not everyone has the option or choice to enter a marriage.
As the WLC, our evidence highlighted that women and their children are often dependent on their partner in life partnerships, and will agree to live their lives around the desires of the individual who provides for them financially. As the Court says, it is not whether absolutely there is a choice, but instead whether realistically, the choice may be exercised given all the factors that surround and impact on the individual’s life.
This is a powerful acknowledgement of the impact of intersecting forms of discrimination on the lives of women, and how intersectionality needs to be considered when laws and policies are developed and implemented. The Court noted that in respect of domestic partnerships, often the choice is also not exercised because of the mistaken belief that where couples live in a life partnership, this relationship amounts to a legally recognised Common Law marriage.
The Maintenance of Surviving Spouses Act 27 of 1990 (MSSA) was enacted with the objective to provide for the reasonable maintenance needs of parties to a marriage that is terminated through the death of one of them. The consequences of their marriage – the duty of support that was provided during life extends beyond death. Not everyone makes a will before they die with clear instructions on how their assets should be divided, or how their loved ones should be cared for. In other instances, there may be a will, but adequate provision is not made for various reasons. The law fills this void through the MSSA for couples who are married.
The Court found that there is no reasonable justification why those living in permanent life partnerships, where they have shown a reciprocal duty of support, should not enjoy the benefits of the MSSA. As the Court affirms, the MSSA’s objective is to ensure that the surviving partner/spouse is not left destitute. If those living in a permanent life partnership give expression of their love and lived realistically in the same manner as those in a marriage, there can be no reason to deny them the same rights and same protection.
Concerns have been expressed that the judgement will be abused. The Court anticipated these concerns and suggested factors to be considered to determine whether a relationship amounted to a permanent life partnership. These factors were drawn from the case of National Coalition for Gay and Lesbian Equality v Minister of Home Affairs.
These factors include, but are not limited to:
- The age of the partners
- The duration of the partnership
- Whether the partners took part in a ceremony manifesting their intention to enter into a permanent partnership.
In our view, these factors need to be considered through an intersectional lens or the substantive equality which the judgement seeks, will be lost. The Court did not limit its finding only to opposite-sex partners. The Court explained that there should be no reason why it should not simply address the issue of same-sex couples’ rights to benefit equally under the MSSA.
The order of invalidity of the MSSA has been suspended for a period of 18 months to allow Parliament to grapple with how it wants to give recognition and protection to those in permanent life partnerships. The Court has provided language to replace that which is contained in the MSSA to remedy the discrimination: Section 1 of the MSSA after the words “dissolved by death”, adds “and includes the surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate”.
Section 1 of the MSSA to be read as if it includes the following at the end of the existing definition:
“(a) ‘Spouse’ for the purposes of this Act shall include a person in a permanent life partnership in which the partners undertook reciprocal duties of support
(b) ‘Marriage’ for the purposes of this Act shall include a permanent life partnership in which the partners undertook reciprocal
duties of support.” Should Parliament fail to enact the necessary amendments to the MSSA, the above language will automatically become part of the legislation.
SUBSTANTIVE EQUALITY FOR WOMEN IN SOUTH AFRICA
The judgement is an example of how intersectional feminism can be used to advance the rights of women before our Courts. It also highlights the importance of our Courts taking into account the lived reality and experiences of the very people that our constitutional right is intended to bring about substantive equality for.
Written by WLC Attorney, Charlene May and former WLC Attorney, Mandi Mudarikwa
First published in the Business Update August Issue, on page 31.
The Women’s Legal Centre (WLC) is an African feminist legal centre that advances women’s rights and equality using tools such as litigation, advocacy, education, advice, research and training.