The Bwanya Statement
A win for #equalityinrelationships
Cape Town, 30 September 2020 – The Women’s Legal Centre (WLC) welcomes the judgment handed down by the Western Cape High Court this afternoon relating to the rights of women living in opposite sex domestic partnerships.
“I find that the failure to include the heterosexual partnerships within s1(1) of the ISSA 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 section 9 and 10 of the Constitution. The impact of the impugned provision unfairly discriminates and cannot be justified in our constitutional order,” said Acting Justice Magona in her judgement.
The judgment recognises the discrimination and vulnerability of many women in South Africa who are unable to negotiate marriage and live in domestic partnerships. The judgment goes further in recognising the evidence put forward by the WLC (as the first amici curiae) that South African society has changed since the dawn of democracy and that many more people are living in domestic partnerships.
The judgment also notes the failure on the part of government and the legislature to enact legislation to address the vulnerability of women in domestic partnerships have continued the discrimination. No justifiable reason could be found by the Court not to address the rights violations. No evidence was put before the Court to counter the vulnerability of women in domestic partnerships and how they were often exploited and left without recourse or remedy at the end of such relationships because of the lack of legal recognition and protection afforded to them.
Acting Justice Magona has declared s1(1) of the Intestate Succession Act to be unconstitutional in so far as it omits the inclusion after “spouse” of “or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support.” The declaration of invalidity will stand over for confirmation by the Constitutional Court.
The WLC extends its gratitude to our counsel Advocate Ashleigh Christians.
About the WLC
The Women’s Legal Centre remains open for business, fulfilling their mandate to serve women and children, regardless of the circumstances. They can be reached on 079 421 8197 or via email at firstname.lastname@example.org