LP 6.

Volks and Bwanya cases (2 different cases) Session1

Domestic Partnerships: Underlying theme…

‘The law is one of the most important architects of social norms. At times, it can be a tool to
solve problems, eradicate inequalities, and advance the rights of the disadvantaged. At other
times, the law is an anchor and a constraint upon social and ideological advances. With
regards to equality and non-traditional partnerships, it seems that law falls into this latter
category.’

(Madame Justice L’Heureux ‘Recognising relationships: the new role of the state’ in J Sloth-
Nielson and Z du Toit (ed) Trials and Tribulations, Trends and Triumphs 35, 39)

Extent of the problem? See Bwanya:

[66] that while domestic partnerships were 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 African/Black
population has increased, and they made more than 10% of the 2011 census mentioned
above.

(Unpacking this paragraph: a large number of pple in the country who are without protection
in the event of ending of that relationship which is often by death eg by death or when the
partners part ways.

Agenda

From last time:

Domestic partnerships (Judicial/legislative regulation)

1. Status aquo

 Statutory recognition

 Self-recognition/regulation
  Judicial recognition?

Today:

2. Judicial recognition continued

 CC: Volks (No!) vs WCHC: Bwanya (Yes!)

Future status

 Debate on recognition

 Draft Domestic Partnershis Bill (GG 30663) & SALRC Single Marriage Disc
Paper

The below diagram shows us where we are as a country in terms of protection of domestic
opposite life partnerships. The important thing to note is that there’s a precedent in cc that say
if you’re in a opposite sex life partnerships where one party passes on, if you have a claim in
terms of the maintenance surviving spouse act MSSA you will not be protected. When you
compare this to the Bwanya vs the master case in WC, the court was willing to extend
protection to the vulnerable party (the woman) in terms of the ISA but felt bound to the CC
and decided there was no protection under the MSSA.

Volks (CC) Bwanya WCHC (going to

CC 4 confirmation)

MSSA
ISA & MSSA

NO! YES (and no)! the

One of the most criticised CC judgements was the Volks v Robinson.

Judicial recognition: Volks v Robinson

Permanent life partnership with Mr Sha…

• Courts had skirted (avoided) the issue of heterosexual life partnerships in context of
same-sex domestic partnerships, ‘not necessarily the same’
 • Constitutionality of the denial of statutory spousal benefits to heterosexual life
partners

• Confirmation of HC order – exclusion ito MSSA = unconstitutional (unjustifiably

unfair discrimination and violation of right to dignity)

• Majority upheld appeal at CC:

• Inappropriate to ex post facto impose a duty of support on estate where no

such duty existed while alive

• Marriage = recognised & NB institution, therefore permissible to distinguish –

not unfair discrimination

• Does not infringe dignity since NO LEGAL OBSTACLE (choice argument)

• Consolation:

I agree that the women in this category suffer considerably. But it is not the under-
inclusiveness of section 2(1) which is the cause of their misery. The plight of a woman who is
the survivor in a cohabitation relationship is the result of the absence of any law that places
rights and obligations on people who are partners within relationships of this kind during
their lifetimes. I accept that laws aimed at regulating these relationships in order to ensure
that a vulnerable partner within the relationship is not unfairly taken advantage of are
appropriate.

Facts of the case.

Mrs Robison was in a permanent life partnership with Mr Shandling. It lasted for about 15
yrs from 1985-2009. They didn’t marry and there was no legal obstacle to their marriage. He
died in 2009 and drafted a will which didn’t really provide much for her. So she claimed for
maintenance in High Court in terms of the MSSA. Volks was the executer of the estate of the
deceased and said she cannot claim in terms of the MSSA because you are not determined to
be a @survivior” which is essentially a spouse and therefore entitled to maintenance in terms
of the Act. She then approached the HC assisted by a certain organisation. The HC said that
the exclusion of domestic life partners who hadn’t solemnized their relationships was
unconstitutional. It unjustifiably constituted unfair discrimination and a violation of the right
to dignity. So, there was the under inclusiveness of the Act. Volks appealed the HC decision
while the Mrs Robinson and the women’s legal centred trust went to confirm the
judgement/relief. There were various respondents to the matter, minister of Justice and
constitutional development and the master of the High Court opposed the confirmation of the
relief, their argument was the administrative burden that would be placed on the master’s
office. The Centre for Legal applied studies which is at Wits who presented evidence to the
court about the vulnerability generally in cohabitation relationships.

Arguments.

Mr Volks argued that the Reading-in was inappropriate because the entire structure of the Act
was based on the concept of marriage and protected spouses of particularly marriages.

Mrs Robinson argued that to differentiate between the surviving partners of life partnership
and the surviving spouses amounts to unfair discrimination on the basis of marital status and
violates the right to dignity.

The court’s decision.

The majority of the 7 judges with 3 dissenting judgement, upheld the appeal and refused to
confirm the HC judgement declaring the maintenance of survival spouse Act (MSSA)
unconstitutional.

Majority judgement was based on that the purpose of the Act viewed in light of its history
was to extend an invariable consequence of the marriage beyond the death of one of the
spouses, that is the duty of support (the purpose was to oblige the parties to maintain each
other even beyond death), the act was to deal with the perceived unfairness resulting from the
idea that the reciprocal obligation of maintenance of the spouses ceased upon death. The
court said the distinction drawn btwn married and unmarried persons could not be said to be
unfair when considered in this context. So, it was hence only becoz of the existence of a
marriage with its requirement of maintenance that this duty was established. The court also
said that had mrs Robison wanted protection then she should have sought that by marrying
mr Shandling. The majority recognised that there was suffering by vulnerable persons. Check
the paragraph in italics.

65. I agree that the women in this category suffer considerably. But it is not the under-
inclusiveness of section 2(1) which is the cause of their misery. The plight of a
woman who is the survivor in a cohabitation relationship is the result of the absence
of any law that places rights and obligations on people who are partners within
relationships of this kind during their lifetimes. I accept that laws aimed at regulating
 these relationships in order to ensure that a vulnerable partner within the relationship
is not unfairly taken advantage of are appropriate.

Important aspects of the minority judgement

What is the point of putting marital status in section 9 if we not gonna use it? it renders the
prohibition of discrimination on the basis of ‘marital status’ meaningless. So, they said where
a relationship served a similar social function to marriage, there should be the same
regulation. (Some of the cohabitation relationships serve the same purpose or function the
same as relationships in marriages.

Justice Sachs

T] he law cannot ignore the fact that lack of resources has left many women with harsh
options only. Their choice has been between destitution, prostitution and loneliness, on the
one hand, and continuing cohabitation with a person who was unwilling or unable to marry
them on the other. Any consideration of the fairness or otherwise of excluding from
maintenance claims people who chose the latter path, must take account of this. (Points to the
point that the law should hence come to their assistance because of their limited agency in
this particular matter)

64. “Much of the argument and many of the passages of the judgment of Sachs J express
concern for the plight of vulnerable women in cohabitation relationships. This
concern arises because women remain generally less powerful in these relationships.
They often wish to be married, but the nature of the power relations within the
relationship makes a translation of that wish into reality difficult. This is because the
more powerful participants in the relationship would not agree to be bound by
marriage. The consequences are that women are taken advantage of and the essential
contributions by women to a joint household through labour and emotional support is
not compensated for”.

Important aspects of the minority Judgements:

• Justices Mokgoro & O’Regan:

 • Renders the prohibition of discrimination on the basis of ‘marital status’
meaningless.

• Justice Sachs:

• Choice argument problematic

• Historical, social, cultural and economic circumstances

• Para 225: [T]he law cannot ignore the fact that lack of resources has left many
women with harsh options only. Their choice has been between destitution,
prostitution and loneliness, on the one hand, and continuing cohabitation with
a person who was unwilling or unable to marry them on the other. Any
consideration of the fairness or otherwise of excluding from maintenance
claims people who chose the latter path, must take account of this.

Bwanya v The Master

• [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.

• Claim: ito ISA (there were no children, so she wanted to be declared an heir, the
deceased’s estate was left to the mother of the deceased). (the distinction between this
case and the Volks case is that it was a claim in terms of both the MSSA and ISA. The
application was that Bwanya be recognized as a spouse for the purposes of intestate
succession. Remember where there was no marriage the estate goes to the children of
the deceased but in this case, there was no children.

The application was also in terms of the MSSA and the averments were that:

• Averments:

• Attempts to start a family (he wanted to travel to Zimbabwe and pay lobola,
but he died before that happened)

• Reciprocal duties of support (para 25)

 • Commitment to marrying each other (died 2 months before purported
marriage)

• See para 25 for summary

Court Finding:

• S 1(1) of the ISA is unconstitutional (is unconstitutional to the extent that it denies
protection of permanent opposite sex life partnerships by denying them dignity and
equality that spouses would be availed.

• Dignity and equality

• Why are same sex couples protected but not opposite sex? (Gory &
Laubscher)

• The court distinguished its finding from the Volks case: doesn’t go against the
precedent in Volks since it deals with the ISA not MSSA (decision made in
terms of the ISA not MSSA)

• MSSA – still constitutional

• Bound by precedent in Volks

• Strange argument re Paixao?

• HEARD BY CC ON 14 FEB, JUDGMENT AWAITED (watch hearing at CC – link

on RUConnected page)

Future Status:

Debate on Recognition…

• Feminist perspective

• Liberal feminists (by the state and gvt interfering and coming to the protection
of women in particular it infantilises and concretizes the feeling of
 dependency. They want a system where women get agency, so they are not
treated as vulnerable by default .

• Other feminists (1st have to work on our society before giving agency (eg
patriarchy)

• Recognition of domestic partnerships in SA?

• Civil Union Act (registered – same-sex focus)

• Domestic Partnerships Bill – 14 January 2008

• Preamble

• Definitions: registered and unregistered

• Single Marriage Act Discussion Paper – 2021

• NB focus on unregistered partnerships