Permanent Life Partners’ Rights to Maintenance and Intestate Succession

Permanent Life Partners’ Rights

Bwanya v Master of the High Court, Cape Town and Others

On 31 December 2021, the Constitutional Court handed down judgment in the matter of Bwanya v Master of the High Court, Cape Town and Others 2022 (3) SA 250 (CC).  The Constitutional Court ruled that where partners undertook reciprocal duties of support, ‘support’ must be given a wide meaning – it includes care, emotional relationship, etc, and is not confined to financial support.

Facts of the Case

Jane Bwanya and Antony Ruch were in a life partnership, living together as if married and planning to marry each other. Ruch died unexpectedly before they married. His will was out of date – he had left his estate to his mother who had predeceased him – so he died intestate.

Ms Bwanya claimed maintenance in terms of the Maintenance of Surviving Spouses Act and as intestate heir in terms of the Intestate Succession Act. Her claim was rejected by the executor on the basis that under the two Acts Ms Bwanya did not qualify for the claimed benefits. She then applied to court, saying the rejection of her claims was discriminatory or unconstitutional. She argued that the two Acts were unconstitutional to the extent that they exclude surviving partners in permanent heterosexual life partnerships, where the partners had undertaken reciprocal duties of support, from claiming maintenance and inheritance from the estates of their deceased partners.

The High Court Ruling

The Western Cape High Court partly upheld her application. In respect of the Intestate Succession Act, the court found that it was unconstitutional to exclude permanent life partners from benefits of intestate succession; it therefore ordered that, wherever the Act referred to the deceased’s “spouse”, that word should be read to mean “spouse or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support”. However, the court dismissed Bwanya’s challenge to the Maintenance Act, mainly because it found itself to be bound by the precedent of Volks v Robinson [1], in which the application and facts had been near-identical.

[1] Volks N.O. v Robinson [2005] ZACC 2; 2009 JDR 1018 (CC)[2005] ZACC 2; 2005 (5) BCLR 446 (CC)

Bwanya approached the Constitutional Court seeking leave for direct appeal against the High Court’s finding in respect of the Maintenance Act, as well as confirmation of the High Court’s declaration of invalidity in respect of the Intestate Succession Act.

Order of the Constitutional Court (CC)

The CC ruled that, insofar as the Maintenance of Surviving Spouses Act is concerned, the definition of “survivor” needed to be added to it “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.”

The Intestate Succession Act was similarly amended by the CC.

The order of the Court was suspended for 18 months (to 30 June 2023) pending remedial legislation by Parliament.

If the remedial legislation is not enacted, then these orders have no effect on the validity of any acts performed in respect of the administration of a deceased estate wound up before 30 June 2023.


Permanent life partner has been included in the definition of “spouse” in the PFA since 2007. What is helpful about the Bwanya case is the single criterion used: the partners undertook reciprocal duties of support which in this case is given a wide meaning – support includes care, emotional, etc., and is not confined to financial support.

For s 37C distributions, if regard is had to how the estate of the deceased member is distributed, then if the member does not leave a valid will, the Fund must consider the partner’s right to inherit.

Where a fund has a pensioner pool, if the rule is that the spouse must be married to a member at retirement then that will need to include a permanent life partner if not already covered in the rule.


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