The Intestate Succession Act declared unconstitutional

The Intestate Succession Act declared unconstitutional

“ I am convinced and it is in my view that traditionally it is women who stand to suffer after years of dedication and support to the livelihood of a permanent life partnership they end up being left in the cold, stripping them of their dignity whilst the same-sex life partnership in the same boat as them stand to benefit, that is an infringement of the right to equality of the heterosexual life partnership.” – Jane Bwanya v The Master of the High Court and Others

In the above-mentioned case law, the High Court has ruled that the Intestate Succession Act is unconstitutional insofar as it discriminates against partners in a heterosexual union. Said Act is read to exclude heterosexual life partners from inheriting in the situation where their partner dies intestate but allows same where the life partners are homosexual. Prior to this ruling, partners who lived together in a permanent life partnership was not protected by the Intestate Succession Act. If one of the partners died without leaving a valid will, the surviving partner would not automatically inherit from the estate, as is the case with married couples and unmarried homosexual life partners.

Jane Bwanya, a domestic worker, fell in love with a wealthy businessman almost six years ago. During June 2014 they moved in together with the intention of such being on a permanent basis. Friends also confirmed that it was clear to them that Bwanya and the deceased were in a serious relationship. Bwanya alleged that they had plans of starting a cleaning business together and also contemplated having a baby. The deceased was responsible for the financial needs in the household and did not expect Bwanya to contribute financially, but she contributed love, care and emotional support. Bwanya and the deceased got engaged in November 2015 and planned on travelling to Zimbabwe to institute lobolo negotiations with her family when the deceased passed unexpectedly in April 2016.

Judge Magona ruled that the evidence before the court in this case was conclusive in that there existed no reason to doubt the seriousness, stability and permanency of their relationship. He further ruled therefore that section 1(1) of the Intestate Succession Act is unconstitutional and invalid insofar as it excludes the surviving life partner in a permanent opposite-sex life partnership from inheriting in terms of this Act. The Act shall henceforth be read and interpreted to include same.

This ruling is a significant milestone in the acknowledgement of the rights of heterosexual life partners within the law of intestate succession, one which should be celebrated. It remains however, by far the best option for individuals to ensure that they have a valid and legal will in which heirs and inheritance are clearly set out.

Article by Erika Oosthuizen, Candidate Attorney. For more information, contact Rauch Gertenbach Attorneys at 044 601 9900 or .

Rauch Gertenbach het van 1 November 2020 ook kantore in Danabaai en sal “bevrou” word deur Janel Kruger, as toegelate prokureur en MC Swart as Sekretaresse / Paralegal.


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