Vital changes coming to the Maintenance of Surviving Spouses Act
“Should a person who has shared her home and life with her deceased partner, born and raised children with him, cared for him in health and in sickness, and dedicated her life to support the family they created together, be treated as a legal stranger to his estate, with no claim for subsistence because they were never married? Should marriage be the exclusive touchstone of a survivor’s legal entitlement as against the rights of legatees and heirs?” SACHS J Volks N.O. v Robinson [2005] ZACC 2; 2009 JDR 1018 (CC) In 2016, statistics revealed that approximately 3.2 million South Africans live together as co-habitants outside the boundaries of marriage. South African common law has also significantly been developed to accommodate the rights of people who choose to cohabit outside of marriage. In light of this, it seems that South African Courts have accepted that cohabitation outside of marriage is now widely practised and accepted across the globe. This is evidenced in the Judgment handed down by the Constitutional Court in Bwanya v The Master of the High Court Cape Town (The Bwanya Case). The Apex court was left with the task of deciding whether the definition of “Survivor” as defined in Section 1 of the Maintenance of Surviving Spouses Act was invalid and resultantly unconstitutional to the extent that it does not include the words “surviving partner of a permanent life partnership terminated by death”. Ms Bwanya and the deceased Mr Anthony Ruch were involved in a relationship that consisted of all the characteristics of a marriage. In 2014, Ms Bwanya moved in with Mr Ruch on a permanent basis, they attended many social gatherings together, and Mr Ruch often introduced Ms Bwanya to his friends as his wife. In 2015, the couple even planned to conceive a child to solidify their relationship. In the same year, Mr Ruch also proposed to Ms Bwanya and they planned to get married in 2016, after the Labola negotiations. Mr Ruch, however, passed away in November 2016. After Mr Ruch’s passing, Ms Bwanya lodged a claim for maintenance against Mr Ruch’s estate in terms of the Maintenance of Surviving Spouses Act. The basis for her claim was that the permanent life partnership shared between herself and Mr Ruch had most, if not all, the characteristics of a marriage. Her claim was rejected by the executor on the basis that she was not married to Mr Ruch. Ms Bwanya then challenged the constitutionality of sections 1 and 2 (1) of the Maintenance of Surviving Spouses Act. Section 2(1) of the Maintenance of Surviving Spouses Act provides that a surviving spouse has the right to lodge a maintenance claim against his or her deceased spouse’s estate if they are unable to support themselves. Section 1 of the Act defines a “survivor” as the surviving spouse in a marriage dissolved by death. The Court in the Bwanya Case had to consider whether the exclusion was still merited. The Apex Court took cognizance of the increasing popularity of permanent life partnerships and the creation of many families within this category. In the words of J. Madlanga, “We should be wary not to so emphasise the importance of the institution of marriage as to devalue, if not denigrate, other institutions that are also foundational to the creation of other categories of families. And this must be so especially because the other categories of families are not only a reality that cannot be wished away, but are on the rise.” The court found that all categories of families deserve legal protection, including permanent life partnerships. The court also emphasised that permanent life partnerships are intimate relationships that are meant to last until the death of one or both partners and that it is a relationship that is often characterised by a reciprocal duty of support. In light of the above, the Constitutional Court ruled that the exclusion of permanent life partnerships in the definition of “survivor” as found in Section 1 of The Maintenance of Surviving Spouses Act was constitutionally invalid. In the same breath, the Court also found that Section 2(1) of the Maintenance of Surviving Spouses Act was constitutionally invalid to the extent that it only confers a maintenance benefit on a surviving spouse. The order in the Bwanya Case brings about a significant change in South African Law. Prior to the judgment, a surviving partner of a permanent life partnership could not claim maintenance from their deceased partner’s estate. Now, both heterosexual and same sex life partners can now claim maintenance benefits from their deceased life partner’s estate. The Legislature has now been given 18 months to take steps to cure the constitutional defects in the Maintenance of Surviving Spouses Act. Our family law experts are more than capable to provide sound legal advice to anyone seeking further advice on maintenance claims. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Prescription: Lack of knowledge regarding legal conclusions
The Constitutional Court in the matter of Mtokonya v Minister of Police [2017] ZACC 33 dealt with the issue of extinctive prescription, in particular regarding whether section 12(3) of the Act requires a creditor to have knowledge of a debtor’s wrongful and actionable conduct, which gave rise to the debt, before prescription may start running against the creditor. Although the Supreme Court of Appeal has pronounced on this issue in a number of cases, the CC has never had the opportunity of pronouncing upon it until now. This case gave the CC an opportunity to pronounce, once and for all, on this issue to settle the law. In this case, the Applicant was arrested and detained by members of the Respondent on 27 September 2010. At the beginning of July 2013, the Applicant consulted an attorney, who after investigating the facts of his arrest and detention, informed him that he was unlawfully arrested and detained and as such had a civil claim for damages against the Respondent. The necessary notice was given to the Respondent in July 2013 and summons was served in April 2014. The Respondent contended that the Applicant’s claim had become prescribed, which the Applicant disputed on the basis that he did not know that he had any claim against the Respondent before consulting his attorney in July 2013 and as such the prescription of his claim could only start to run from July 2013, as this was the first time he obtained “knowledge” of the legal consequences of the actions of the Respondent. The question asked, upon which the Court had to make a ruling, was whether knowledge of a legal remedy is required for prescription to run? The starting point in considering this question, is to point out that the question calls for an analysis of section 12(3) of the Act. This section, in summary, provides that: As the general rule, prescription can only commence to run as soon as the debt is due, subject to three exceptions, namely: Prescription does not commence to run against a creditor if the debtor wilfully prevents him from coming to know of the existence of the debt; The debt is not deemed to be due until the creditor has knowledge of two things, namely knowledge of the identity of the debtor and knowledge of the facts from which the debt arose; and The creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care. The said section of the Act, clearly does not make provision for, nor does it require, the creditor to have knowledge of any right to sue the debtor. The Act also does not require him to have knowledge of legal conclusions that may be drawn from “the facts from which the debt arises”. The facts from which the debt arises are the facts which a creditor would need to prove in order to establish the liability of the debtor. The question arises, whether knowing that the conduct of the debtor is wrongful and actionable is knowledge of a fact? The section does not provide for, nor requires, knowledge of legal opinions or conclusions, or the availability in law of a remedy. A distinction between the question of fact and the question of law needs to be made, which in itself is not always easy to make. The Court considered this and relayed that a conclusion of law results when legal effects are assigned to events and that a question of fact usually calls for proof where a question of law usually calls for argument. The Court found that knowledge of a debtor’s wrongful and actionable conduct is knowledge of a legal conclusion and not knowledge of fact, and as such falls outside the scope of the Act. The facts from which a debt arises are the facts of the incident or transaction, which, if proved, would mean that in law the debtor is liable to the creditor. This case has now become settled law in that section 12(3) of the Act requires knowledge only of the material facts from which the debt arises for the prescriptive period to begin running – it does not require knowledge of the relevant legal conclusions (i.e. that the facts constitute negligence) or of the existence of an expert opinion which supports such conclusions. The interpretation and application of this Act remains technical in nature, and it is advised to obtain legal advice in the event of doubt. Reference List: Prescription Act 68 of 1969 Links v Department of Health, Northern [Cape} Province 2016 (4) SA 414 (CC) Mtokonya v Minister of Police [2017] ZACC 33 Loni v Member of the Executive Council, Department of Health Eastern Cape, Bhisho [2018] ZACC 2 This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)