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Study Unit 2 - The LoS and The Constitution Cheat Sheet by

The constitution impacts the Law of succession in the following areas: 1) Common and Customary Low of Intestate Succession; 2) Maintenance upon death and 3) Law of Testate succession. This cheatsheet summaries the ways in which the SAn legislature and Courts have impacted the Law of Succession - specifically through it's definition of "spouse"


The consti­tution impacts the Law of succession in the following areas: 1) Common and Customary Low of Intestate Succes­sion; 2) Mainte­nance upon death and 3) Law of Testate succes­sion.
This cheatsheet summaries the ways in which the SAn legisl­ature and Courts have impacted the Law of Succession - specif­ically through it's definition of "­spo­use­"­/Su­rvivor


Dies Caedit
Personal right to claim - occurs upon someones death
Dies Vaedut
When they can enforce right to claim - once creditors; L7D account settles etc

The Common Law of Intestate Succession

Regulated by Instes­tatate Succession Act 81 of 1987. This says that the deceased surviving spouse is one of the deceased primary Intestate heirs.
The SAn legisl­ature and courts expanded the tradit­ional definition of spouse.

Customary Law of Intestate Succession

s23 of the Black Admini­str­ation Act 38 (1927) and S1(4)(b) of ISA implied that black intestsate and non-black intetstate estates would be governed by different acts. CC found this to be uncons­tit­utional (SAHRC v President)
CC ordered that ISA applied to all estates and Legisl­ature repealed BAA.
Legisl­ature then enacted Reform of Customary Law of Succession and Regulation of Related Matters Act 11 (2009)

Mainte­nance Upon Death

Surviving spouse can bring mainte­nance claim against deceased's estate for reasonable mainte­nance of they cannot meet their mainte­nance needs from their own means.
Statutary Claim in terms of Mainte­nance of Surviving Spouses Act 27 (1990). This Act uses the tradit­ional def of spouse - this def was expanded by courts and legisl­ature.

The Legisl­ature: Civil Union Act 17 of 2006; S13

S13 regulates legal conseq­uences of a civil union.
13(1): Legal conseq­uences of marriage in Marriage Act apply to civil unions
13(2): Spouse includes civil union partner

6) ComLaw - Courts: Bwanya v The Master (P)

Legal Question: Can surviving partner in opposite sex life partne­rship inherit under ISA/claim in terms of MA?
- Majority: Exclusion in ISA/MA is uncons­tit­uti­onal. In MA it also conditions that the spouse did not receive equitable share in partners estate.
- Majority: Rejected choice argument in Volks: Said many women do not have a real choice to enter into marriage by reason of their vulner­ability (Men don't want to marry, financial reasons etc.)
- Majority: Real Q is whether these relati­onships were worthy of consti­tut­ion­al/­legal protec­tion. Yes in context of intestate inheri­tance.
- Minority: Difficult to establish what a permanent life partne­rship is; believes it's illusi­onary that women are helplessly trapped in cohabi­tation relati­ons­hips; upheld Volks and dissented bc of precedent.
Court Order
MA/ISA S1(1) must be read as though the words "or permanent life partne­rship in which partners have undertaken reciprocal duties of suppor­t" must be read in after the word "­spo­use­"
- Ruled that orders are suspended for 18mnths so that Parliament can take steps to cure consti­tut­ional defects identified in judgem­ents.
MA read on after "­sur­viv­or": & includes surviving partner of a perm life prtnrship termd by death of 1 partner in which the partners undertook recip duties of supp and in circum where surv partner has not received equit share of partners estate."

Law of Testate Succes­sion:

Consti­tution has impacted the law of succession in 2 ways:
1. Meaning of the word spouse (Moosa v Minister of justice)
Legal Question: Must a husvan­d/wife of a mono/poly muslim marriage be recognised as a "­sur­viving spouse­" for purposed of 2C (1) of the Wills Act.
Answer: Exclusion infringes on person rights to equality and human dignity.
Court Order: For purpose of 2C(1) of the Wills Act a surviving spouse includes every husband and wife of a mono/poly Muslim marriage solemnised under the religion of Islam.
2. Amendment of testam­entary provisions which are contrary to public policy. (cases denoted with TS2.x)
- BOE Trust LTD (2013: The Consti­tut­ional Right to property and human dignity affirm the right to freedom of testation/voluntas testatoris servanda est.
- This right is not absolute - it may not contrary to public policy (contra bono mores)

1) ComLaw - Courts: Daniels v Campell 2004

Legal Quesion: Can a spouse to a mono Muslim marriage concluded only in accordance of Mulsim rights inherit in terms of ISA/ claim in terms of MA?
- Spouse in ISA/MA must be given ordinary meaning.
- We think of a "­spo­use­", the couples in above scenario fit neatly into our unders­tanding of the words meaning.
Thus, the word "­Spo­use­" in ISA/MA includes the surviving spouse to a monogamous Muslim marriage.

3) ComLaw - Courts: Laubsher v Duplan 2017

Backgr­oun­d/Legal Question: Does the enactment of Civil Union Act render Gory irrele­vant? Volks v Robinson 2005 amplifies this question because the court denied a mainte­nance claim for an opposite sex life partner on the grounds that there was nothing that stopped them from getting legally married. Laubscher tells us that Gory is not rendered irrele­vant.
- Gory dealt with the inability of same sec partners to inherit in terms of ISA, not their inability to enter civil union. Thus, mischief Gory addressed did not dissappear with the Act.
- Legisl­ature did not deal with the issue of Gory/same sex life partners when enacting CivUnion Act - thus they did not intend to amend the reading in order prescribed in Gory
- Volks clearly different to Laubscher : 1) Volks dealt with mainte­nance, Laubcher deals with intestate succes­sion. 2) Deceased left a will in Volks 3) Issue in Volks was an equality challenge of Mainte­nance of Surviving Spoused Act, but in Laubscher its re: the interp­ret­ation of Gory's court order in light of CivUnion Act.
Courts Ruling:
- Enactment of CivUnion Act did not specif­ically amend the ISA as requires by Gory.
-CivUnion Created a new category of benefi­ciary in ISA that is distin­gui­shable from same-sex life partne­rships.
Therefore, same sex life partne­rship will still enjoy intestate rights as per Gory until Legisl­ature appeal­s/a­mends it.

7) ComLaw - Courts: Wilsnach v TM (2021) (P!)

Legal Question: Can a grandp­arent who assumed parental control in respect of a child inherit as a "­par­ent­" from that child's intestate estate in terms of ISA?
- The grandm­other was the primary caregiver and dominant parental figure of child and acquired parental rights & respon­sib­ilities over child. Logical that she should be regarded as a parent.
- When a person has filled the role of a parent, their right to dignity demands that they be regarded as such.
Court Order
The deceased grandma was parent & was entitled to inherit in terms of ISA

TS2.1 Minister of Education v Syfrets Ltd (2006)

Legal Issue: Applicants want the removal of discri­min­atory limita­tions on testam­entary bursary at UCT. Stipul­ated: Only Europeans, no women/­Jewish people.
Reasoning: Only European limitation = indirect discri­min­ation. No women/­jewish people­=direct discri­min­ation. Therefore: contrary to public policy.
Court Order: Will was amended through deletion of offending references to race, gender and religion.

TS2.3) King v De Jager (2021) (P!)

Legal Issues: After kids property could only be devolved to male descen­dants. Does the exclusion if female descen­dants constitute unfair discri­min­ation that enables court to strike down fideic­omm­issum bequest?
Answer: WC HC said no; CC said it was unncon­sti­tut­ional and thus unenfo­rce­able.
Court Order
Minority: Unfair on grounds of gender. Common Law must be developed to restrict discri­min­atory freedom of testation.
Majority: No need to develop Common Law - this was already not allowed for in the law.
Substa­ntive equality & Ubuntu demanded a decont­ext­ual­isation of Freedom of testation in SA to address conseq­uences in an unequal society

2) ComLaw - Courts: Gory v Klover 2007

Legal Question: Can a partner to a same-sex permanent life partne­rship inherit under the ISA?
- At this time, same sec partners were legally incapable of concluding a civil marriage.
- The exclusion of permanent homosexual partners from intestate inheri­tance in ISA = unfair discri­min­ation on grounds of sexual orient­ation AND marriage = uncons­tit­uti­onal.
Courts Order:
s1(1) of ISA must be read as though the words "or partner in a permanent same-sex life partne­rship in which the partners have undertaken reciprocal duties of support" appear after the word "­spo­use­"

4) ComLaw - Courts: Govender v Ragavayah (2009)

Legal Question: Can a spouse to a monogomous Hindu marriage inherit in terms of ISA
- Same Reasoning as Daniels v Campell
Courts Order: The applicant was declared a spouse of the deceased for purposed of s1(1) of ISA.

5) ComLaw - Courts: Hassam v Jacobs 2009

Legal Question: Can each of the surviving spouses in a Poly Muslim marriage inherit in terms of ISA/MA?
- ISA does not provide for the scenario in which deceased is survived by multiple spouses = unfair discri­min­ation on the grounds of marriage type = uncons­tit­uti­onal.
- MA: S(6) of Interp­ret­ation Act 33 of 1997: unless states otherwise, words which appear in singular also apply in plurarl. Thus the word "­sur­viv­or" in MA included those in poly marriages.
Courts Order
The ISA must be read as though words "or spouse­s" appear after the word spouse.
Note: Bc the court did not say it was uncons­tit­utional that poly marriages could not claim in terms of MA, this did not beed to be confirmed in front of CC. The ISA one did bc they deemed the act uncons­tit­uti­onal.

ConLaw - courts: Volks v Robinson (2005)

Legal Question: Can surviving partner in perm hetro life partne­rship institute a mainte­nance claim in terms of MA?
Answer 1: High Court
Yes. Exclusion of surviving partner = unfair discri­min­ation on grounds of marital status = uncons­tit­uti­onal.
Court Order 1: Read in "and includes surviving partner of a life partne­rsh­ip" into defini­tion.
Answer 2: CC
Majority refused to confirm high courts order. Reasoned:
- It would strain MA
- Survivng Life Partner does not fit neatly into ordinary meaning of the word "­spo­use­".
- Hetro couples enjoy Freedom of Choice to get married.
Implic­ation: Surviving Spouse cannot institute mainte­nance claim.

TS2.2) In re BOE Trust (2013) (P!!)

Legal Issue: Applicants sought to remove discri­min­atory limitation from testam­entary bursary to 4 SAn univer­sities. Limita­tion: white students only.
Outcome: WC High Court dis not grant applic­ation- they appealed supreme court. 4 unis rejected bursary - making it impossible to implement busrary request.
Testator forsaw that this might happen - listed charities for this scenario.
The altern­ative devolution in terms of charities had to occur in accordance with testators direct­ions.


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