PP Smit Attorneys

In South Africa, the number of couples who are permanently living together in life partnerships is increasing every year. What are the consequences that would ensue if either of the partners in the relationship dies without a will? Should a surviving partner in such a scenario have a claim for inheritance or maintenance from the deceased estate? If yes, under what circumstances would a claim be allowed? The answer to these questions will be explored in light of the Bwanya v Master of the High Court, Cape Town and Others case.

The facts of the Bwanya case were as follows: Ms Bwanya and Mr Ruch entered into a romantic relationship in 2014. They grew so intimate that they moved in together as well. The couple’s friends all knew about their relationship, and Mr Ruch even introduced Ms Bwanya to his friends as his wife. The romantic relationship they had, comprised all the characteristics of a marriage. For example, Mr Ruch bought all the groceries, and household necessities and also provided for the household expenses. Ms Bwanya provided him with love, care, support, and companionship.

In addition, the couple also made future plans together. For example, Mr Ruch has been helping Ms Bwanya obtain her license. The deceased had also planned to buy her a car, as the couple planned to start a cleaning business together. The two also had plans to cement their relationship with a baby. In 2015, the pair got engaged. The couple planned a trip to Zimbabwe for lobola negotiations to commence. Mr Ruch also planned on selling one of his properties in preparation. Sadly, two months before the trip to Zimbabwe, Mr Ruch passed away. He had nominated his mother in his will who had already predeceased him. Thus, he died intestate.

Ms Bwanya, after the death of her life partner lodged a two-fold claim against the deceased estate. Firstly, to inherit under the Intestate Succession Act, and secondly, to claim maintenance under the Maintenance of Surviving Spouses Act. The basis of the claim was that the relationship between the two, was akin to a marriage and that the parties had undertaken reciprocal duties of support.

The Constitutional Court in its judgement, held that permanent life partnerships must be accorded the necessary respect in our society as they are one of life’s realities. Furthermore, the court declared that the relevant legislative provisions constitute unfair discrimination and are constitutionally invalid. On this basis, the court held that when the term “spouse” is used in the provisions, it must include: “a 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 effect of this judgement is that a surviving partner in a permanent life partnership will be able to claim for maintenance and inheritance. However, it must be emphasised, that this legal entitlement of a surviving life partner does not flow from the mere act of living together permanently as a couple. Permanent life partners do not obtain a right to inherit or claim from a deceased estate by the operation of law. The court qualified the claim by stating that a surviving partner can only claim where the parties had undertaken reciprocal duties of support.

The court gave a guideline as to what can be considered to determine whether or not there is a reciprocal duty of support between life partners. A reciprocal duty of support between life partners may entail the following: “…such as loyalty and sympathetic care and affection, concern…as well as the more material needs of life, such as physical care, financial support, the rendering of services in the running of the common household or a support-generating business…To my mind, these features are not foreign to permanent life partnerships….In all these respects, permanent life partnerships are very much akin to marriages.”

In conclusion, it is clear from this judgement that a surviving life partner is not left without a claim when their life partner has predeceased them. However, this claim is not guaranteed because the claim does not flow from the mere fact of living together. The court carefully set out the circumstances under which the claim would possibly be allowed.

Reference List:
1. Bwanya v Master of the High Court, Cape Town and Others 2022 (3) SA 250 (CC).

Marriages on the decline in South Africa (02-10-2023)

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.

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Carla Cloete

Partner | Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the PP Smit team as a professional assistant.

Carien Hamman

Attorney & Notary | LLB

Carien grew up and matriculated in the picturesque town of Ceres, whereafter she furthered her studies at the University of Stellenbosch and obtained her LLB degree in 2015. She completed her articles at VanderSpuy Cape Town in 2017 and stayed on as an associate litigant after being admitted as an attorney during early 2018. Carien loves the countryside and thus ventured back to Ceres where she joined Joubert Van Vuuren Inc. for a year. However, when she was presented with the opportunity to enjoy both the country- and the seaside, she couldn’t resist and joined PP Smit Attorneys at the beginning of 2022 as an avid litigator. When she is not at the office, Carien enjoys long walks, wine tasting, and exploring the area with her family and friends.

Harmann Potgieter

Attorney | LLB | NQF 7

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with PP Smit Attorneys as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Andre van der Walt

Partner | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys, and not too long after that, he grabbed the opportunity to work at PP Smit Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Jandré Smith

Partner | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director of the firm, where he practices in the Litigation department. Jandré additionally joined the partnership of PP Smit Attorneys during the same year. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Richard Phillips

Partner | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity he joined the partnership of PP Smit Attorneys during 2006. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Johann Maree

Partner | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he moved to Vredenburg and joined Swemmer & Levin, where after he joined the partnership of PP Smit Attorneys during 2006.. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Pieter Smit

Partner | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking.

Jan Fourie

Partner |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. In 2004, he also joined the partnership of PP Smit Attorneys.

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners.