Bwanya v Master: A Trampling of Precedent or an Evolution of Stare Decisis?
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Editor’s note: This blog post is an abridged version of Prof Osman’s article in Constitutional Court Review XIV.
Bwanya v the Master involved a claim by a woman who had been in a long-term, committed relationship with her deceased partner for inheritance under the Intestate Succession Act and maintenance under the Maintenance of Surviving Spouses Act (MSSA).
She argued that her life partnership was equivalent to a marriage and challenged the constitutional validity of both statutes, which excluded unmarried opposite-sex partners from legal protection. The judgment in Bwanya was complex, partly due to the binding precedent set by the infamous 2005 case of Volks v Robinson in which the court ruled that unmarried partners who chose not to marry could not claim maintenance under the MSSA. The judgment was based on the ‘choice argument’ that parties having chosen not to marry could not avail themselves of the benefits of marriage. In Bwanya, the Court refrained from explicitly labeling the Volks judgment as ‘clearly wrong,’ being the threshold for setting aside a prior judgment, but nonetheless declared the ISA and MSSA unconstitutional to the extent that they excluded life partners who had undertaken reciprocal duties of support. But how, then, did Bwanya avoid the binding precedent of Volks?
First, the Court in Bwanya held that it was not bound by the choice argument central to the Volks judgment. It found that whether there is a choice to marry is not a legal question but a factual matter. The Court asserted that the Volks answer to this factual question does not bind the Court in Bwanya in its decision, especially given that new evidence was presented that was not available during the Volks proceedings. The reference to ‘new evidence’ is unclear but appears to refer to evidence reflecting the social circumstances impacting marriage decisions.
The Bwanya judgment evinced statistics showing an increasing trend in cohabitation, changes in family formations, and evidence from the Women’s Legal Centre Trust regarding the illusory nature of the choice to marry. But is this new evidence? While the court in Volks may have refused to consider additional evidence about the vulnerability of women in cohabitant relationships and their lack of genuine choice regarding marriage, it was aware of, as reflected in the judgment, the economic dependence and vulnerability of women in both marriage and cohabitant relationships, the imbalances in power dynamics and the exploitation of women in such relationships. More evidence on the vulnerability of partners in cohabitant relationships may have been presented in Bwanya, but it is misleading to describe this as ‘new evidence’ since the issues had previously been acknowledged by the Court.
More puzzling is that after noting that it remains a matter of fact whether the parties have a choice to marry, the Court proceeded to answer this question from an abstract perspective based on broader societal considerations rather than the specific facts of the case. In Bwanya, the parties had planned to marry and travel to Zimbabwe for lobolo negotiations. A stroke of bad luck saw the deceased pass away before the couple could marry, leaving the applicant without marital rights. However, it cannot be said that the applicant did not have a choice to marry.
The Court’s second ground for departing from Volks is more nuanced. In Volks, the exclusion of unmarried partners from the MSSA was justified because the MSSA’s maintenance duty arises automatically in marriage but not in other relationships. Bwanya suggests that this reasoning is incorrect, given developments that have extended the common law dependent’s action to include rights for opposite-sex life partners. But why does a development in the dependent’s action, with its own distinct nature and purpose, render legislation that does not extend protection to unmarried partners unconstitutional? Surely, the court must consider whether the same rights underlie both common law and statutory provisions and whether the vindication of those rights necessitates a change in the legislation, as occurred in the common law.
This is not an automatic conclusion; it must be evaluated. Courts may have adopted a robust and different policy approach to developing common law, but it is not the only lawful option. As long as the legislation reflects one of the lawful options—which Volks determined to be the case of the MSSA—the court does not have the authority to substitute it with its own approach.
But while the Court’s reasoning in distinguishing Bwanya from Volks is not entirely convincing, it may not be wrong. Rather, the judgment accords with a softening or a more ‘moderate view’ of the doctrine of stare decisis, which allows a court to decline to follow a binding precedent in exceptional circumstances when there are sound and legitimate reasons to do so. This requires a court to consider three questions.
“…Bwanya is best understood as a softening of stare decisis, which provides a different (but not necessarily lower or less rigorous) standard for departing from binding precedent.”
First, has the related law developed so that the old ruling (Volks) is now obsolete? Bwanya’s discussion of the development of the common law dependent’s action speaks to this development in the law. The Court could also have noted the extensive legislative and judicial recognition of unmarried partners, particularly that same-sex unmarried partners can inherit from one another and enjoy greater rights than their opposite-sex counterparts. As a result, Volks appears to be out of step with our jurisprudence, which has generally sought to extend protection to unmarried partners and may now be considered obsolete.
Secondly, have the facts changed or been perceived so differently that the old ruling (Volks) is no longer justified? Although the difficulties surrounding the choice to marry existed at the time of the Volks case, the Court's willingness to recognise these difficulties has evolved, leading to a significantly different perception of the facts. This is arguably demonstrated by Laubscher v Duplan where the court affirmed the intestate inheritance rights of unmarried same-sex partners, indicating a willingness to acknowledge the obstacles faced in marriage.
Finally, does the ruling (Volks) obstruct achieving objectives found in other laws? It can be argued that Volks fails to realise the constitutional objective of protecting all family types in contemporary South African society, where the nuclear family is the least common family formation. Declining marriage rates and increasing divorce rates have led to families being formed in various ways, including cohabitation without marriage. Volks undeniably presents a barrier to ensuring the rights of unmarried partners and achieving the constitutional objectives of equality and non-discrimination.
Consequently, Bwanya is best understood as a softening of stare decisis, which provides a different (but not necessarily lower or less rigorous) standard for departing from binding precedent. It offers a better-theorised explanation for the judgment, though perhaps not the motivation for the shift in the Court’s position - that it is the legislature’s responsibility to protect unmarried partners as it deems fit. The judgment arguably represents an evolution in the Court’s jurisprudence to protect unmarried partners, given the lack of legislative intervention despite years of deliberation, and we would do well to take heed of it.
While Bwanya recognises the rights of unmarried partners, it may open the door for the Court to recognise the myriad of family formations and use Bwanya as a basis for the extension of protection. Even in the face of Volks, the Court’s reasoning means that we may soon see claims by others (like extended family members, siblings, or unmarried roommates) that test the Court’s, willingness to recognise the rights of those in atypical family formations.
