Volks NO v Robinson and Others (CCT12/04) [2005] ZACC 2; 2005 (5) BCLR 446 (CC) (21 February 2005)

SKWEYIYA J:

Introduction

This appeal and confirmatory proceedings concern the interpretation and constitutionality of section 2(1), read with section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 (the Act) which, in substance, confers on surviving spouses the right to claim maintenance from the estates of their deceased spouses if they are not able to support themselves. The first respondent (Mrs Robinson) contends that the survivor of a stable permanent relationship between two persons of the opposite sex who had not been married to each other during their lifetime, but nevertheless lived a life akin to that of husband and wife, should be afforded the same protection that is afforded to the survivor of a marriage under the provisions of section 2(1) of the Act.
The central question for consideration in this matter is whether the protection which the Act affords to a “survivor”^¹ should be withheld from survivors of permanent life partnerships. The High Court (Cape Provincial Division) found that the exclusion of the surviving partner of a permanent life partnership from the ambit of the Act was unconstitutional.^² The present proceedings follow from that order.

Factual background
Mrs Robinson was in a permanent life partnership with the late Mr Shandling, an attorney and senior partner at CK Friedlander Shandling Volks (the law firm), from 1985 until the latter’s death in 2001. They were never married and no children were born of their relationship. During the lifetime of the deceased, they had jointly occupied a flat situated in Cape Town on a continuous basis from early 1989 until the deceased’s death. She remained in occupation of the flat until the end of December 2002.
The deceased had previously been married to Edith Freedman (Mrs Shandling), in 1950. Three children were born of their marriage, two sons, Martin and Adrian, and a daughter, Lauren. Mrs Shandling passed away on 27 January 1981 due to lung cancer. The couple’s children, now majors, have established families of their own in the United States of America.
The description by Mrs Robinson of their relationship is, in broad terms, accepted by the appellant (Mr Volks). She states that to a large extent the deceased had supported her financially. He gave her R5000 per month in order to cover household necessities and would deposit money into her account whenever she needed it. He also provided her with petrol money from the law firm’s account and paid for her car maintenance. She was accepted as a dependant on his medical aid scheme from January 2000. During the relationship she worked intermittently as a freelance journalist and artist. This employment brought in some small income which she used on general living expenses, gifts for the deceased and personal expenses. She also worked on a voluntary basis at Fine Music Radio as a newsreader, programme compiler and presenter.
Once a year, the deceased would travel to the United States to visit his three major children and grandchildren and on one occasion she accompanied him. Whenever there were social functions at the law firm or at the radio station they would accompany each other. They were accepted as a couple and had many mutual friends. The deceased suffered from bi-polar disorder/manic depression, and over the years she had nursed him through illness and taken him to hospital.
In terms of the deceased’s will, Mr Volks, a partner in the law firm, was appointed as the executor of the deceased estate. The balance in the estate for distribution to Mrs Robinson, his three children, his domestic worker, and three staff members of the law firm, was R413 665.37. The bequest to Mrs Robinson constituted a Toyota motor vehicle, the contents of the flat which they occupied in Cape Town, other than those items that were chosen by and reserved for his three children, and a sum of R100 000. In terms of the will, Mrs Robinson was entitled to remain in the house for a period not exceeding nine months.
In April 2002 Mrs Robinson sought legal advice from the Women’s Legal Centre (the Centre) about her rights to claim maintenance from the deceased estate. After consulting with Mr Volks in his capacity as the executor, the Centre advised her that the residue in the estate was minimal and that she should not pursue her claim. In June 2003 she received a copy of the Final Liquidation and Distribution Account, which reflected a residue of R248 533.87. In accordance with the deceased’s will, the residue would devolve upon his three children.
During August 2003 the Centre wrote letters to Mr Volks and to the fourth respondent, the Master of the High Court (the Master), advising them of their client’s claim. The appellant’s attorneys rejected the claim on the basis that Mrs Robinson was not a “spouse” for the purposes of the Act.^³
After this response, Mrs Robinson launched a two-part application in the High Court. Part A sought an urgent interdict preventing Mr Volks from winding up and distributing the assets in the estate, pending the determination of the constitutional challenge to the Act, which relief was sought in Part B of the application. The application for the interdict was not opposed and was granted by the High Court.
The application relating to the constitutional challenge was set down for a later date subject to the filing of an amended notice of motion, further papers and heads of argument. The Women’s Legal Centre Trust (the Trust) filed an application to intervene in this application. That application was not opposed and the Trust was admitted as the second applicant in the proceedings. Both Mrs Robinson and the Trust relied upon the provisions of section 38 of the Constitution for standing. They alleged that they were acting in their own interests; on behalf of partners in permanent life partnerships; and in the public interest.^⁴

The contentions of the parties in the High Court
In an amended notice of motion, Mrs Robinson and the Trust sought an order declaring that she was the “survivor” of the late Mr Shandling for the purposes of the Act, and therefore entitled to lodge a claim for maintenance under the Act. In the event that it was found that she did not qualify as a “survivor” for the purposes of the Act by virtue of not being “the surviving spouse in a marriage dissolved by death”, they sought an order declaring that the exclusion of the survivor of permanent life partnerships from the provisions of the Act was unconstitutional. They contended that this exclusion violated the provisions of sections 9(3)^⁵ and 10^⁶ of the Constitution, in that it discriminated unfairly on the ground of marital status, and infringed her right to dignity. In this regard they submitted that the definition of the words “survivor”, “spouse” and “marriage” in the Act should include a reference to survivors of permanent life partnerships.
In relation to the declaration of invalidity sought, Mr Volks argued that the reading-in of words to the Act was unacceptable. He argued that the entire structure of the Act was premised on the concept of marriage and protects surviving spouses of such a marriage. Thus reading-in, in the form sought, did not deal properly with these provisions, nor did they fit in with the structure of the Act.
Mr Volks argued that in the event that the court found that the Act was inconsistent with the Constitution and invalid, it would not be just and equitable for an order to apply to permanent life partnerships in respect of which the partner had already died. He argued for an order which would only have prospective effect. He argued that a retrospective order would not sufficiently protect the freedom and dignity of the deceased. He also argued that the relief sought by Mrs Robinson and the Trust may affect other legislation like the Administration of Estates Act.^⁷
He argued further that Mrs Robinson chose to live with Mr Shandling without entering into a marriage although there was no legal or other impediment to marrying. There was therefore no reason in law or in principle why the laws of marriage should be imposed upon the deceased, his estate, and his heirs. He argued that it would constitute an infringement of the deceased’s freedom and dignity to have the consequences of marriage imposed in circumstances where there was a clear choice not to enter into a marriage relationship. As evidence of this choice on the part of the deceased, he referred to a statement that Mr Shandling made to him that “if he were ever single again he would not marry”. Mr Volks also relied on the fact that he referred to Mrs Robinson as “my friend” in his will, whereas he referred to his deceased wife, Mrs Shandling, as “my wife”.
Mr Volks also contended that Mr Shandling, in terms of his will, had made a choice as to how his assets would be disposed of. He did this with an understanding that the laws of marriage would not apply to his estate. His freedom and dignity would be violated if his choice as to how to dispose of his assets were to be overridden by a court permitting a claim for maintenance against his estate. Indeed his right not to be arbitrarily deprived of property in terms of section 25(1) of the Constitution would be infringed.
In short, he argued that the deceased’s freedom and dignity would be violated if his fundamental life choices, not to marry and to dispose of his property as he wanted, were to be overridden by a court permitting a maintenance claim against his estate. He submitted that different considerations may have applied if the deceased had died intestate, but that this was not the case. For these reasons, he urged that even if the Act were thought to involve discrimination, the discrimination was not unfair. Alternatively, the discrimination, if unfair, would be justifiable under section 36(1) of the Constitution.
In response, Mrs Robinson submitted that for all intents and purposes they had lived their lives as a married couple, and that she was at all times prepared to marry Mr Shandling. In any event, she went on to state that the fact that they were not married is not a material consideration which a court should have regard to in determining whether she was entitled to maintenance under the Act. In determining this question she argued for the court to consider the nature of their relationship, and cited the following criteria:

“a) our commitment to a shared household;

b) the financial and other dependence between us;

c) the duration of our relationship;

d) the roles we played in our relationship in relation to each other.”

In reply to the argument on choice in relation to property disposition, she argued that if they were married and he had disinherited her or had left insufficient means for her maintenance, she would have been entitled to claim maintenance under the Act. She also contended that the Act was intended to provide for vulnerable widows or persons in her position where testators did not properly provide for their dependants.

The decision of the High Court
The High Court noted that there are significant differences between a marriage and a permanent life partnership. In this regard the court stated:

“Apart from the profound religious significance attached to the institution of marriage, there are important definitional differences. For example, upon the conclusion of a marriage ceremony, the relationship between the two parties has immediate legal significance. In the case of a domestic life partnership, the determination of the nature of the relationship can only take place after a lengthy period of time, only after the lapse of which period, the criteria enunciated above by both Goldblatt [2003 (120) SALJ 610 at 625] and L’Heureux-Dubé J [Nova Scotia (Attorney General) v Walsh 2002 SCC 83 at paras 126-36] can be shown to exist. In this case, the enquiry requires the benefit of evidence which illustrates that the relationship is of a permanent nature, at which stage, it can be concluded that the parties are involved in a domestic life partnership.”^⁸ (references inserted)

Based on the nature of the relationship between Mrs Robinson and the late Mr Shandling, the High Court concluded that it was clear

“that, well before Mr Shandling’s death, a life partnership existed between the two and that they regarded themselves as being involved in a permanent and intimate life partnership.”^⁹

Adopting the equality test formulated in Harksen v Lane NO and Others,^¹⁰ the High Court found that the Act differentiated between married spouses and unmarried cohabitants on the listed ground of marital status and therefore unfair discrimination was presumed. It held that there were no justificatory grounds for the unfair discrimination, and concluded that Mrs Robinson’s right to equality had been unfairly eroded.
The High Court stated that it was trite that one of the core commitments of our constitutional society was the recognition of the dignity of difference, which accords respect to the existence of domestic partnerships and those who live in them. The court stated that:

“If there were clear evidence that parties expressly, by choice, decided to eschew any possible financial benefits which flowed from a marriage and, for this reason (or notwithstanding this position), chose to live within the context of a domestic life partnership, there may be an argument, . . . that a surviving partner such as [Mrs Robinson] could not successfully launch a constitutional challenge to the Act.”^¹¹

The court concluded that, in this case

“there is little beyond the speculation of [Mr Volks] that a conscious choice was made by [Mr Shandling] and [Mrs Robinson] to live in terms of a relationship in which none of the benefits of marriage now sought were to apply.”^¹²

Relying on certain factual information in an article by Goldblatt^¹³ to the effect that for a range of reasons domestic partnerships were a significant part of South African family life, Davis J stated:

“To ignore the arrangement and impose a particular religious view on their world is to undermine the dignity of difference and to render the guarantee of equality somewhat illusory insofar as a significant percentage of the population is concerned.”^¹⁴

He therefore held that the breach of both the rights to equality and dignity could not be justified.

The High Court made an order in the following terms:

“1. It is declared that: The omission from the definition of ‘survivor’ in [section] 1 of the Maintenance of Surviving Spouses Act 27 of 1990 of the words ‘and includes the surviving partner of a life partnership’ at the end of the existing definition is unconstitutional and invalid.

2. The definition of ‘survivor’ in [section] 1 of the Maintenance of Surviving Spouses Act 27 of 1990 is to be read as if it included the following words after the words ‘dissolved by death’: ‘and includes the surviving partner of a life partnership’.

3. The omission from the definition in [section] 1 of the Maintenance of Surviving Spouses Act 27 of 1990 of the following, at the end of the existing definitions, is unconstitutional and invalid:

‘ “Spouse” for the purposes of this Act shall include a person in a permanent life partnership’;

‘ “Marriage” for the purposes of this Act shall include a permanent life partnership.’

4. Section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 is to be read as though it included the following at the end of the existing definition:

‘ “Spouse” for the purposes of this Act shall include a person in a permanent life partnership’;

‘ “Marriage” for the purposes of this Act shall include a permanent life partnership.’

5. The order in paras 1, 2, 3 and 4 above shall have no effect on the validity of any acts performed in respect of the administration of a deceased estate that has finally been wound up by the date of this order.”^¹⁵

Proceedings before this Court

At the hearing counsel for Mr Volks informed the Court that they had decided, after consultation with him, to withdraw the appeal and opposition to the confirmation proceeding in so far as this related to the equality challenge. In other words, Mr Volks conceded the correctness of the unconstitutionality of the provision in issue, as found by the High Court. It is unfortunate that the Court was not informed of this before the date of hearing. It is also regrettable that we were not able to hear full argument from any party supporting the constitutionality of the provision. It would also seem that the heirs have not been informed of this decision.
However it is incumbent upon this Court to fully consider the question of constitutionality, despite the abandonment of the appeal.
Mrs Robinson and the Trust, in their heads of argument, sought confirmation of the order in its entirety. However, in oral argument counsel indicated that they were of the view that if words were to be read-in, they would require that the Act be extended to cover partners only where there was a reciprocal duty of support present, not dissimilar from the reading-in remedy ordered by this Court in Satchwell.^¹⁶
The third respondent, the Minister of Justice and Constitutional Development (the Minister), and the Master had issued a notice of intention to abide the decision of the High Court. Yet, in this Court they submitted heads of argument and made oral submissions challenging the confirmation of the remedy given in the High Court. They argued for judicial restraint in light of the current law reform process being explored in this area by the South African Law Reform Commission (the Commission). They also argued that the order should not be retrospective or, if it were to be, that it should be limited so as to alleviate what may amount to an insurmountable administrative burden on the Master, given that it is the Master’s office which is tasked in most instances with the administration, winding up and distribution of deceased estates.
The Centre for Applied Legal Studies (CALS) argued in favour of confirmation. Much of their argument was directed at the vulnerability of women in cohabitation relationships. They also argued for a remedy which would extend the Act to cover polygynous cohabitation relationships, where for instance the male partner was still married during the duration of his cohabitation with another.

Further evidence
CALS seeks to persuade us to accept certain additional evidence aimed largely at demonstrating the vulnerability of women in existing relationships between unmarried cohabitants, and of the fact that few women have the choice about whether they should marry. The admission of additional evidence is regulated by the provisions of rule 31 of the rules of this Court.^¹⁷ Subsection 1 provides as follows:

“(1) Any party to any proceedings before the Court and an amicus curiae properly admitted by the Court in any proceedings shall be entitled, in documents lodged with the Registrar in terms of these rules, to canvass factual material that is relevant to the determination of the issues before the Court and that does not specifically appear on the record: Provided that such facts -

(a) are common cause or otherwise incontrovertible; or

(b) are of an official, scientific, technical or statistical nature capable of easy verification.”

In the case of In Re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign and Others,^¹⁸ the Court considered the predecessor to rule 31^¹⁹ and held:

“That Rule permits a duly admitted amicus ‘to canvass factual material which is relevant to the determination of the issues before the Court and which do not specifically appear on the record’. However, this is subject to the condition that such facts ‘are common cause or otherwise incontrovertible’ or ‘are of an official, scientific, technical or statistical nature, capable of easy verification’. This Rule has no application where the facts sought to be canvassed are disputed. A dispute as to the facts may and, if genuine, usually will demonstrate that they are not ‘incontrovertible’ or ‘capable of easy verification’. Where this is so, the material will be inadmissible.”^²⁰ (footnote omitted)

The whole of the report tendered by the amicus cannot be considered to consist merely of evidence of a statistical or incontrovertible nature, or which is common cause. It is apparent that the conclusions and solutions offered are not incontrovertible.^²¹ Furthermore, Mr Volks does not accept that the evidence sought to be introduced is necessarily incontrovertible or uncontroversial. Indeed the report in its own words notes:

“As is evident from our methodology, our findings are not representative but simply indicate trends which confirm our general assumptions about cohabitation.”^²² (my emphasis)

In the executive summary the study was defined as “qualitative primary research amongst poor ‘African’ and ‘Coloured’ communities”.^²³

Moreover, the entire study consisted of interviews with only 68 people in eight sites. This non-representative sampling, which was not quantitative but qualitative and was conducted in only eight poor communities, cannot be said to be statistical or scientific evidence capable of easy verification, nor can it be said to be incontrovertible. A more representative study might well lead to different conclusions.
The evidence is not directly relevant to the issue before us. That issue is whether the protection afforded to survivors of marriage under section 2(1) of the Act should be extended to the survivors of permanent life partnerships. The admission of the evidence would impermissibly broaden the case before us. It cannot be admitted.

The history and purpose of the Maintenance of Surviving Spouses Act 27 of 1990
This Act has its own unique history which is relevant to its goal or object. In Glazer v Glazer, NO^²⁴ the Appellate Division refused to extend the principle applied in Carelse v Estate De Vries,^²⁵ that a father’s estate was liable to support his children, to cases of a spouse requiring support to enable her to claim maintenance from her deceased husband’s estate.^²⁶
The Act emanates from the recommendations of the Commission’s report: “Review of the Law of Succession: The introduction of a legitimate portion or the granting of a right to maintenance to the surviving spouse” (Project 22), submitted in August 1987. The Commission was of the view that the institution of a legitimate portion would not be the appropriate solution to the problem, and recommended instead that a claim for maintenance be given by operation of the law. It is regrettable that it took as many as three years before the recommendations of the report were given effect to.
In terms of section 2(1) of the Act a surviving spouse will, in so far as he is not able to provide therefor from his own means and earnings, have a claim against the deceased spouse’s estate “for the provision of his reasonable maintenance needs until his death or remarriage.” “Own means” of the surviving spouse includes

“any money or property or other financial benefit accruing to the survivor in terms of the matrimonial property law or the law of succession or otherwise at the death of the deceased spouse”.^²⁷

The claim by the surviving spouse will be dealt with in accordance with the Administration of Estates Act.^²⁸

The purpose of the provision is plain. The challenged law is intended to provide for the reasonable maintenance needs of parties to a marriage that is dissolved by the death of one of them. The aim is to extend an invariable consequence of marriage beyond the death of one of the parties. The legislation is intended to deal with the perceived unfairness arising from the fact that maintenance obligations of parties to a marriage cease upon death. The challenged provision is aimed at eliminating this perceived unfairness and no more. The obligation to maintain that exists during marriage passes to the estate. The provision does not confer a benefit on the parties in the sense of a benefit that either of them would acquire from the state or a third party on the death of the other. It seeks to regulate the consequences of marriage and speaks predominantly to those who wish to be married. It says to them: “If you get married your obligation to maintain each other is no longer limited until one of you dies. From now on, the estate of that partner who has the misfortune to predecease the survivor will continue to have maintenance obligations.”

Interpretation
Before evaluating the constitutional challenge, it is necessary to interpret the relevant provisions of the Act in the light of its history. Section 2(1) of the Act provides:

“If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide therefor from his own means and earnings.” (my emphasis)

Mrs Robinson and the Trust argued both in the High Court and in this Court that the Act could be interpreted so as to include heterosexual cohabitants. However, for the reasons considered below, I agree with the conclusion of the High Court that the Act is not reasonably capable of being so interpreted.

It is patent from the definition in the Act that, “survivor” means “the surviving spouse in a marriage dissolved by death.” It would seem that the only possible meaning for “marriage” when viewed in the context of the Act is one recognised either by the law or by a religion.^²⁹ This is evident both from the use of the words “spouse” and “marriage” dissolved by death.
Furthermore, in Satchwell^³⁰ this Court was very definitive in its interpretation of the term “surviving spouse” in the Judges Remuneration and Conditions of Employment Act,^³¹ and stated:

“There is no definition of the word ‘spouse’ in the provisions under attack. In the circumstances the ordinary wording of the provisions must be taken to refer to a party to a marriage that is recognised as valid in law and not beyond that. . . . The context in which ‘spouse’ is used in the impugned provisions does not suggest a wider meaning, nor do I know of one. Accordingly, a number of relationships are excluded, such as same-sex partnerships and permanent life partnerships between unmarried heterosexual cohabitants.”^³² (my emphasis)

In addition, section 2(1) refers to the provision of maintenance until “death or remarriage”. This would be illogical if the phrase “surviving spouse” included survivors of permanent life partnerships, who generally may not have been previously married and could therefore not get remarried.
As noted by this Court in the Hyundai^³³ case:

“On the one hand, it is the duty of a judicial officer to interpret legislation in conformity with the Constitution so far as this is reasonably possible. On the other hand, the Legislature is under a duty to pass legislation that is reasonably clear and precise, enabling citizens and officials to understand what is expected of them. A balance will often have to be struck as to how this tension is to be resolved when considering the constitutionality of legislation. There will be occasions when a judicial officer will find that the legislation, though open to a meaning which would be unconstitutional, is reasonably capable of being read ‘in conformity with the Constitution’. Such an interpretation should not, however, be unduly strained.”^³⁴ (footnotes omitted)

I find that an interpretation of the Act that would include permanent life partnerships would be “unduly strained” and manifestly inconsistent with the context and structure of the text. The Act is incapable of being interpreted so as to include permanent life partners.

Equality challenge
The basis of the High Court’s finding of unconstitutionality is that the Act excludes permanent life partners from its protection and thereby violates the anti-discrimination provision in section 9(3) of the Constitution.
Section 9 provides:

“(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one

or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”

In the Harksen^³⁵ case this Court laid out the general approach to equality analysis and said:

“(a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? If it does not then there is a violation of [section] 8(1).^³⁶ Even if it does bear a rational connection, it might nevertheless amount to discrimination.

(b) Does the differentiation amount to unfair discrimination? This requires a two-stage analysis:

(i) Firstly, does the differentiation amount to ‘discrimination’? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

(ii) If the differentiation amounts to ‘discrimination’, does it amount to ‘unfair discrimination’? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.

If, at the end of this stage of the enquiry, the differentiation is found not to be unfair, then there will be no violation of [section] 8(2).^³⁷

(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause (section 33 of the interim Constitution).”^³⁸

The question for determination in this case is whether the exclusion of survivors of permanent life partnerships from the protection of the Act constitutes unfair discrimination. The Act draws a distinction between married people and unmarried people by including only the former. We are not concerned with the exclusion of survivors of gay and lesbian relationships, nor are we concerned with survivors of polygynous relationships.
Although it is arguable whether the distinction or differentiation amounts to discrimination, I am prepared to accept that it amounts to discrimination based on marital status. That being the case, the discrimination is presumed to be unfair in terms of section 9(5) of the Constitution. The question however is whether it is indeed unfair discrimination.
In determining whether discrimination is unfair one must consider the differences between the two groups. Although there is no right to marry and to found a family contained in Chapter 2 of the Constitution marriage as an institution is recognised therein. This is clear from the provisions of section 15(3)(a)(i) of the Constitution.^³⁹ The constitutional recognition of marriage is an important starting point for determining the question presented in this case.
Marriage and family are important social institutions in our society. Marriage has a central and special place, and forms one of the important bases for family life in our society.^⁴⁰ In this regard O’Regan J notes in Dawood^⁴¹ that:

“Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance, at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well.

The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends.”^⁴² (footnotes omitted)

Marriage is also an internationally recognised social institution.^⁴³
From this recognition, it follows that the law may distinguish between married people and unmarried people. Indeed, this Court in Fraser^⁴⁴ noted:

“In the context of certain laws there would often be some historical and logical justification for discriminating between married and unmarried persons and the protection of the institution of marriage is a legitimate area for the law to concern itself with.”^⁴⁵

The law may in appropriate circumstances accord benefits to married people which it does not accord to unmarried people.

Mrs Robinson never married the late Mr Shandling. There is a fundamental difference between her position and spouses or survivors who are predeceased by their husbands. Her relationship with Mr Shandling is one in which each was free to continue or not, and from which each was free to withdraw at will, without obligation and without legal or other formalities. There are a wide range of legal privileges and obligations that are triggered by the contract of marriage. In a marriage the spouses’ rights are largely fixed by law and not by agreement, unlike in the case of parties who cohabit without being married.
The distinction between married and unmarried people cannot be said to be unfair when considered in the larger context of the rights and obligations uniquely attached to marriage. Whilst there is a reciprocal duty of support between married persons, no duty of support arises by operation of law in the case of unmarried cohabitants. The maintenance benefit in section 2(1) of the Act falls within the scope of the maintenance support obligation attached to marriage. The Act applies to persons in respect of whom the deceased person (spouse) would have remained legally liable for maintenance, by operation of law, had he or she not died.
It must be borne in mind that the legislature, by enacting the law, in fact qualified the right to freedom of testation. It said that freedom of testation would be limited to the extent that where marriage obliged the parties to it to maintain each other, freedom of testation ought not to result in the termination of the obligation upon death. The question we have to answer is whether it was unfair for the legislature not to qualify freedom of testation further, by creating a posthumous duty to maintain on cohabitants.
In his judgment Sachs J envisages two categories of people within this broad class of unmarried cohabitants against whom the disputed law is unfairly discriminatory.^⁴⁶ The first category is the people who by written instrument or by necessary implication agree to live together, to maintain each other and to give each other support of every kind. It is contended that for the law not to oblige survivors of relationships in this category to be maintained entails unfair discrimination against the survivor simply because the survivor does not have the piece of paper which is the marriage certificate.^⁴⁷ That is an over-simplification. Marriage is not merely a piece of paper. Couples who choose to marry enter the agreement fully cognisant of the legal obligations which arise by operation of law upon the conclusion of the marriage. These obligations arise as soon as the marriage is concluded, without the need for any further agreement. They include obligations that extend beyond the termination of marriage and even after death. To the extent that any obligations arise between cohabitants during the subsistence of their relationship, these arise by agreement and only to the extent of that agreement. The Constitution does not require the imposition of an obligation on the estate of a deceased person, in circumstances where the law attaches no such obligation during the deceased’s lifetime, and there is no intention on the part of the deceased to undertake such an obligation.
The second category referred to by Sachs J is the relationship in which the deceased male partner refused to marry the woman who cared for him, put everything into the relationship and gave her heart and soul to it, bringing up a number of children born of the relationship between them in the process.^⁴⁸ I have sympathy for surviving partners who fall within this category. The conduct of the male partner is unconscionable in these cases. There is a strong argument that partners ought to be obliged to maintain each other during their lifetime in certain circumstances.
I conclude that it is not unfair to make a distinction between survivors of a marriage on the one hand, and survivors of a heterosexual cohabitation relationship on the other. In the context of the provision for maintenance of the survivor of a marriage by the estate of the deceased, it is entirely appropriate not to impose a duty upon the estate where none arose by operation of law during the lifetime of the deceased. Such an imposition would be incongruous, unfair, irrational and untenable.

The right to dignity
It was also contended that the failure to make provision for the people in the class to which Mrs Robinson belongs offends the dignity of members of that class. Section 10 of the Constitution provides:

“Everyone has inherent dignity and the right to have their dignity respected and protected.”

I do not agree that the right to dignity has been infringed. Mrs Robinson is not being told that her dignity is worth less than that of someone who is married. She is simply told that there is a fundamental difference between her relationship and a marriage relationship in relation to maintenance. It is that people in a marriage are obliged to maintain each other by operation of law and without further agreement or formalities. People in the class of relationships to which she belongs are not in that position. In the circumstances, it is not appropriate that an obligation that did not exist before death be posthumously imposed.

Vulnerability and economic dependence
Structural dependence of women in marriage and in relationships of heterosexual unmarried couples is a reality in our country and in other countries.^⁴⁹ Many women become economically dependent on men and are left destitute and suffer hardships on the death of their male partners.
Much of the argument and many of the passages of the judgment of Sachs J express concern for the plight of vulnerable women in cohabitation relationships. This concern arises because women remain generally less powerful in these relationships. They often wish to be married, but the nature of the power relations within the relationship makes a translation of that wish into reality difficult. This is because the more powerful participants in the relationship would not agree to be bound by marriage. The consequences are that women are taken advantage of and the essential contributions by women to a joint household through labour and emotional support is not compensated for.
I agree that the women in this category suffer considerably. But it is not the under-inclusiveness of section 2(1) which is the cause of their misery. The plight of a woman who is the survivor in a cohabitation relationship is the result of the absence of any law that places rights and obligations on people who are partners within relationships of this kind during their lifetimes. I accept that laws aimed at regulating these relationships in order to ensure that a vulnerable partner within the relationship is not unfairly taken advantage of are appropriate.
In the case of the very poor and the illiterate the effects of vulnerability are more pronounced. The vulnerability of this group of women is, in my view, part of a broader societal reality that must be corrected through the empowerment of women and social policies by the legislature. It is a widespread problem that needs more than just implementation of what, in their case, would be no more than palliative measures. It needs more than the extension of benefits under section 2(1) to survivors who are predeceased by their partners. Unfortunately the reality is that maintenance claims in a poverty situation are unlikely to alleviate vulnerability in any meaningful way.
Both dissenting judgments make it plain that there are many ways in which these relationships can be regulated. It is not for us to decide how this should be done. In any event, this case is not concerned with the provision that should be made to ensure that partners in relationships other than marriage treat each other fairly during their lifetime. That does not mean, however, that fairness in the case of people who are married will be the same as fairness between parties to a permanent life partnership. It is up to the legislature to make provision for this.
As I have already said, it is not unfair not to impose a duty upon the estate of a deceased where no duty of that kind arose by operation of law during the lifetime of that person. I have a genuine concern for vulnerable women who cannot marry despite the fact that they wish to and who become the victims of cohabitation relationships. I do not think however that their cause is truly assisted by an extension of section 2(1) of the Act or that vulnerable women would be unfairly discriminated against if this were not done. The answer lies in legal provisions that will make a real difference to vulnerable women at a time when both partners to the relationship are still alive. Once provision is made for this, the legal context in which section 2(1) falls to be evaluated will change drastically.

Chaskalson CJ, Langa DCJ, Moseneke J, Ngcobo J, Van der Westhuizen J and Yacoob J concur in the judgment of Skweyiya J.

NGCOBO J:

Section 2(1) read with section 1 of the Maintenance of Surviving Spouses Act, 27 of 1990 (the Act), confers on surviving spouses the right to claim maintenance from the estates of their deceased spouses if they are unable to support themselves. The question presented in this case is whether this right should also be conferred upon survivors of permanent life partnerships between two persons of the opposite sex who were not married to each other but nevertheless lived a life that was akin to that of husband and wife. The High Court (Cape of Good Hope Division) took the view that it should. It therefore concluded that the exclusion of survivors of such partnerships from the protection of the Act is unconstitutional. The present proceedings are a sequel.
Mrs Robinson, the first respondent, is a survivor of a permanent life partnership. Her deceased partner is Mr Shandling, who was a senior partner at a Cape Town law firm. Mrs Robinson took the view that survivors of such a relationship are entitled to the protection afforded to surviving spouses by the Act. She lodged a claim for maintenance under the Act against the estate of the deceased. The executor of the estate of the deceased, the appellant, rejected the claim, taking the view that such survivors do not fall within the ambit of the protection afforded by the Act. The rejection of the claim prompted, amongst other things, a constitutional challenge directed at the provisions of the Act.
The High Court found that the provisions of the Act are incapable of being construed in a manner that would bring survivors of permanent life partnerships within the ambit of the Act. The problem, the High Court appears to have found, lay in the definition of the word “survivor” in section 1 of the Act, which did not include persons involved in permanent life partnerships. This exclusion, the court found, unfairly discriminated against survivors of permanent life partnerships on the basis of marital status. It therefore concluded that section 2(1) read with the definition of “survivor” in section 1 of the Act is unconstitutional in that it contravenes sections 9 and 10 of the Constitution. It is this conclusion that is now in issue before this Court.
Section 9 of the Constitution provides:

“(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”

And section 10 of the Constitution provides: “Everyone has inherent dignity and the right to have their dignity respected and protected.”

That the Act differentiates between survivors of marriages and survivors of permanent life partnerships is patent. The provisions of the Act are aimed at providing maintenance and support for survivors of marriages. The legitimacy of this governmental purpose cannot be gainsaid. Nor can it be doubted that the differentiation that the Act makes is rationally connected to that purpose. The next question is whether the differentiation between survivors of marriages and survivors of permanent life partnerships constitutes unfair discrimination.
For the purposes of this judgment, I am prepared to accept that the differentiation involved here constitutes discrimination. The differentiation is on the ground of marital status, a ground listed in subsection 9(3) of the Constitution. That being the case, the discrimination is presumed to be unfair under subsection 9(5). The ultimate question for determination therefore is whether the provisions of section 2(1) read with section 1 of the Act do in fact discriminate unfairly against survivors of permanent life partnerships.
The proper approach to the equality analysis is that set out in the President of the Republic of South Africa and Another v Hugo^⁵⁰ and Harksen v Lane NO and Others^⁵¹ cases.
The nature of unfairness contemplated by the provisions of section 9 of the Constitution has been considered by this Court, albeit in the context of section 8 of the interim Constitution, the predecessor to section 9. In the Hugo case, this Court held that:

“The prohibition on unfair discrimination in the interim Constitution seeks not only to avoid discrimination against people who are members of disadvantaged groups. It seeks more than that. At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings will be accorded equal dignity and respect regardless of their membership of particular groups.”^⁵²

Dignity is an underlying consideration in the determination of unfairness. Thus in the Harksen case, this Court held that “[t]he prohibition of unfair discrimination in the Constitution provides a bulwark against invasions which impair human dignity or which affect people adversely in a comparably serious manner.”^⁵³ While legislation may make distinctions, those “distinctions that treat certain people as second-class citizens, that demean them, that treat them as less capable for no good reason, or that otherwise offend fundamental human dignity”^⁵⁴ cannot be tolerated. In the final analysis, it is the impact of discrimination on the survivors of permanent life partnerships that is the determining factor regarding the unfairness of the discrimination in this case.^⁵⁵
The starting point in determining the fairness or otherwise of the discrimination involved in this case is the Constitution itself. Although our Constitution contains no express provision protecting the institution of marriage, it nevertheless recognises the right freely to marry and to raise a family. In Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others, this Court commented as follows on the absence of an express provision protecting the right to family life or the right of spouses to cohabit:

“The omission of such a right from the Constitution was challenged during the first certification proceedings on the basis that such a right constituted a ‘universally accepted fundamental right’ which in terms of Constitutional Principle II had to be entrenched in the Constitution. The Court observed from its survey of international instruments that States are obliged in terms of international human rights law to protect the rights of persons freely to marry and raise a family. However, it also observed that these obligations are achieved in a great variety of ways in different human rights instruments.

. . .

The Court therefore concluded that the new constitutional text, although it contained no express clause protecting the right to family life, nevertheless met the obligations imposed by international human rights law to protect the rights of persons freely to marry and to raise a family.”^⁵⁶ (footnotes omitted)

There can be no doubt that our Constitution recognises the institution of marriage. This much is apparent from section 15(3)(a)(i) of the Constitution which in substance makes provision for the recognition of “marriages concluded under any tradition, or a system of religious, personal or family law.” This Court too has recognised the importance of marriage as an institution. One need only refer to the Dawood case, where this Court said the following concerning the institution of marriage:

The constitutional recognition of the right freely to marry and the institution of marriage is consistent with the obligations imposed on our country by international and regional human rights instruments which impose obligations upon states to respect and protect marriage. The African [Banjul] Charter on Human and Peoples’ Rights, 1981^⁵⁸ recognises the importance of marriage and the family. Article 18(1) provides that the “family shall be the natural unit and basis of society.” The relevant part of article 18 provides that:

“1. The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical and moral health.

2. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.”^⁵⁹

Under article 23(4) of the International Covenant on Civil and Political Rights, 1966 (ICCPR),^⁶⁰ States Parties are required to “take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution.” Article 23 of the ICCPR provides that:

“1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”

So too does article 16 of the Universal Declaration of Human Rights, 1948^⁶¹ provide that:

“(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

These regional and international instruments underscore the importance of marriage as an institution and the right freely to marry. They underscore the duty of states like ours, which are signatories to these instruments, to “take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution.”^⁶² Therefore, both the Constitution and international instruments impose an obligation on our country to protect the institution of marriage.
It seems to me to follow from this recognition of the institution of marriage that the law may, in appropriate circumstances, distinguish between married people and unmarried people. This much was recognised by this Court in Fraser v Children’s Court, Pretoria North, and Others,^⁶³ where the Court observed:

Once it is accepted that marriage is a constitutionally recognised institution in our constitutional democracy, it follows that the law may legitimately afford protection to marriage. And in appropriate circumstances the law may afford protection to married people which it does not accord to unmarried people. This seems to me to be the logical consequence of the recognition of the institution of marriage. But there are other considerations that are relevant to the determination of the fairness or otherwise of the discrimination involved in this case.
One of the factors that is relevant to the determination of unfairness is the purpose sought to be achieved by the impugned provisions. The purpose of the provisions of the Act is manifestly not directed at impairing the dignity of the survivors of permanent life partnerships. It is primarily directed at ensuring that surviving spouses who are in need of maintenance and who are unable to support themselves, do get maintenance. One of the invariable consequences of marriage is a reciprocal duty of support. During the subsistence of the marriage, the deceased spouse is under a duty to support and maintain the surviving spouse. What the provisions of the Act merely do is to ensure that this duty continues after the death of one of the spouses. It does this by transferring this duty to the estate of a deceased spouse.
It is not without significance that indigenous law, which is part of our law, also protects widows. Under indigenous law, the duty to maintain and support the widow survives the death of the husband. Thus upon the death of a husband, the duty to maintain and support the widow falls upon indlalifa. This duty remains with indlalifa regardless of whether the deceased husband left enough assets from which to maintain and support the widow. Recently, I had occasion to observe that:

“The perpetuation and preservation of the family unit and succession to the position and status of the deceased therefore lie at the heart of succession in indigenous law. Like his predecessor, indlalifa becomes the nominal owner of the family property, and is required to administer it on behalf of and for the benefit of the family. Indlalifa acquires the duty to maintain and support the widow and minor children. In dealing with family property, indlalifa has to consult the widow who had the right to restrain him from dissipating family assets. When there are insufficient assets to maintain the family, indlalifa had to use his own resources to provide maintenance.”^⁶⁵ (footnotes omitted)
It is therefore plain that the impact of the provisions of the Act on surviving spouses is to protect their right to receive maintenance and support from the deceased spouse by transferring the duty to support and maintain onto the estate of a deceased spouse. It is true that surviving partners of permanent life partnerships are not afforded this protection. But, although this may constitute a disadvantage, it does not take away the right of a surviving partner of a permanent life partnership from receiving a sum of money from the estate of a deceased partner. Indeed, the provisions of the Act do not prevent partners in a permanent life partnership from leaving sums of money to each other in their respective wills, which can be used for maintenance. We know for example that the deceased in this case left Mrs Robinson a sum of money in his will.
There is a further consideration that is equally relevant. The law places no legal impediment to heterosexual couples involved in permanent life partnerships from getting married. All that the law does is to put in place a legal regime that regulates the rights and obligations of those heterosexual couples who have chosen marriage as their preferred institution to govern their intimate relationship. Their entitlement to protection under the Act, therefore, depends on their decision whether to marry or not. The decision to enter into a marriage relationship and to sustain such a relationship signifies a willingness to accept the moral and legal obligations, in particular, the reciprocal duty of support placed upon spouses and other invariable consequences of a marriage relationship. This would include the acceptance that the duty to support survives the death of one of the spouses.
The Act does not say who may enter into a marriage relationship. The Act simply attaches certain legal consequences to people who choose marriage as their contract. There is a choice at the entry level. The law expects those heterosexual couples who desire the consequences ascribed to this type of relationship to signify their acceptance of those consequences by entering into a marriage relationship. Those who do not wish such consequences to flow from their relationship remain free to enter into some other form of relationship and decide what consequences should flow from their relationships.
The other consideration is that marriage is a matter of choice. Marriage is a manifestation of that choice and more importantly, the acceptance of the consequences of a marriage. It is more than a piece of paper. As this Court observed in the Dawood case:

“The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends.”^⁶⁶

People involved in a relationship may choose not to marry for a whole variety of reasons, including the fact that they do not wish the legal consequences of a marriage to follow from their relationship. It is also true that they may not marry because one of the parties does not want to get married. Should the law then step in and impose the legal consequences of marriage in these circumstances? To do so in my view would undermine the right freely to marry and the nature of the agreement inherent in a marriage. Indeed it would amount to the imposition of the will of one party upon the other. This is equally unacceptable.
Another consideration that is relevant is the difficulty of establishing the existence of a permanent life partnership. The point at which such partnerships come into existence is not determinable in advance. In addition, the consequences of such partnerships are determined by agreement between the parties. Unless these have been expressly agreed upon, they have to be inferred from the conduct of the parties. What happens at the dissolution of such partnerships is far from clear. All of this points to the need to regulate permanent life partnerships. This does not mean that a law designed to regulate marriages is unconstitutional simply because it does not regulate permanent life partnerships.

MOKGORO AND O’REGAN JJ:

We have had the opportunity of reading the judgments in this matter prepared by Skweyiya J and Sachs J. We are unable to agree with the order proposed by Skweyiya J. We agree with the conclusion reached by Sachs J but for different reasons which we set out in this judgment.
The crisp constitutional issue we have to decide is whether section 2(1) of the Maintenance of Surviving Spouses Act, 27 of 1990 (the Act) read with the definition of “survivor” in section 1 of that Act constitutes unfair discrimination and is inconsistent with the Constitution as found by the Cape High Court (the High Court).^⁶⁷ Section 2(1) provides that:

“If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide therefor from his own means and earnings.”

The word “survivor” is defined in section 1 of the Act as “the surviving spouse in a marriage dissolved by death”. The High Court found that this narrow definition of “survivor” rendered the provision discriminatory to the extent that it did not afford a maintenance claim to the surviving partner of a permanent life partnership. The High Court accordingly made an order reading in the following words to the definition of survivor in section 1 – “and includes the surviving partner of a life partnership” as well as two further orders reading in definitions of “spouse” and “marriage”.^⁶⁸ We must decide whether to confirm that order.

The facts of the case have been set out in the judgments of both Skweyiya J and Sachs J. To recap in brief, Mrs Robinson and Mr Shandling (the deceased), who had both been previously married, formed a relationship in which they lived together from 1985 until his death in November 2001. The relationship thus lasted sixteen years. They did not marry although there was no legal impediment to marriage. For the last twelve years of Mr Shandling’s life, they lived in a flat owned by a Shandling family trust. Their relationship was monogamous and Mrs Robinson characterised the relationship as a “permanent life or domestic partnership”. The applicant in this Court, Mr Volks, the executor of Mr Shandling’s deceased estate (the executor) did not dispute the characterisation of the relationship as a “permanent life partnership”.
In his will, Mr Shandling referred to Mrs Robinson as his “friend”. He also mentioned his former wife whom he referred to as “my wife Edith Rose”. He bequeathed certain of his assets, totalling approximately one third of his estate, to Mrs Robinson. The residue of his estate was left to his three children in different proportions. In addition to the bequests made in her favour, Mrs Robinson applied to the executor for her to be treated as a surviving spouse for the purposes of section 2(1) of the Act, which would entitle her to maintenance. That application was refused by the executor on the grounds that she did not fall within the terms of section 2(1) as she had not been married to Mr Shandling.
Mr Shandling was a senior partner in a firm of attorneys in Cape Town while Mrs Robinson worked intermittently as a freelance journalist and artist. Mrs Robinson averred that Mr Shandling supported her financially during the subsistence of their relationship and paid all household expenses. Mrs Robinson was also added as a dependant to Mr Shandling’s medical aid from 2000.
Mrs Robinson states that Mr Shandling had been diagnosed as suffering from bi-polar disorder before their relationship commenced and that she nursed him through the mood swings that are characteristic of this disorder. She also nursed him in his final illness. It is quite clear from the evidence given by Mrs Robinson, and not disputed by the executor, that Mr Shandling and Mrs Robinson lived together for sixteen years, supporting one another both financially and emotionally and that both considered the relationship to be a permanent one. The High Court found on the facts that Mr Shandling and Mrs Robinson had entered into a permanent and intimate life partnership.
In deciding whether this finding is correct, we consider the following factors to be determinative in this case: the length of the period of cohabitation which was sixteen years, the fact that Mr Shandling paid Mrs Robinson an allowance to cover household expenses and was generally responsible for the payment of all the costs of running the household, the fact that Mr Shandling had declared Mrs Robinson to be his dependant for the purposes of medical aid, the undisputed close and intimate relationship between them, and the fact that Mrs Robinson nursed Mr Shandling through bouts of ill-health. In our view, these facts make it plain that both Mr Shandling and Mrs Robinson considered themselves to constitute a permanent life partnership in which they undertook duties of mutual support and care for one another. It is also clear, however, that they chose not to marry. We must assume that it was Mr Shandling who chose not to marry as Mrs Robinson says that she was at all times willing to be married. We cannot ascertain Mr Shandling’s reasons for not marrying from the affidavits before us. In our view, however, the fact that they did not marry does not mean that they had not established a permanent life partnership.
Section 9(3) of our Constitution prohibits discrimination on the grounds of marital status. It provides:

“The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

The institution of marriage is an important social institution which has extensive legal consequences under the two legal regimes which regulate marriage in South Africa, the common law and African customary law. The social importance of marriage has been recognised by this Court in several cases. In Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others,^⁶⁹ for example, this Court held:

“The institutions of marriage and the family are important social institutions that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends.”^⁷⁰

The celebration of a marriage thus confers extensive legal duties and rights upon the parties to the marriage as a matter of law. As a matter of social relations, it often results in the founding of a family which provides essential human companionship, mutual support and security to the members of that family. However, not every family is founded on a marriage recognised as such in law. Yet members of such families often play the same roles as in families which are founded on marriage and provide companionship, support and security to one another.

The law has tended to privilege those families which are founded on marriages recognised by the common law. Historically, marriages solemnised according to the principles of African customary law were not afforded recognition equal to the recognition afforded to common law marriages,^⁷¹ though this has begun to change.^⁷² Similarly, marriages solemnised in accordance with the principles of Islam or Hinduism were also not recognised as lawful marriages^⁷³ though this too is now altering.^⁷⁴ The prohibition of discrimination on the ground of marital status was adopted in the light of our history in which only certain marriages were recognised as deserving of legal regulation and protection. It is thus a constitutional prescript that families that are established outside of civilly recognised marriages should not be subjected to unfair discrimination.
Where relationships which are socially and functionally similar to marriage are not regulated in the same way as marriage, discrimination on the grounds of marital status will arise. In this case, we have concluded that the cohabitation relationship of Mrs Robinson and Mr Shandling was a relationship that constituted a permanent life partnership in which the parties had undertaken mutually to support one another, both financially and otherwise. We concluded, therefore, that their relationship was socially and functionally similar to marriage. To the extent that the law regulates its consequences differently from that of marriage, the law will be prima facie discriminatory. The question that then arises is whether that discrimination is unfair. In each case where it is shown that a relationship that is socially and functionally similar to marriage is treated differently from marriage, a careful contextual analysis will be necessary to determine whether the discrimination is indeed unfair.
It will be helpful to start by considering the legal rules governing marriage. Before we do so, however, it is important to note that the rules governing marriage both under common law and under African customary law have been the subject of intense debate in the last few decades. The focus of that debate has been a realisation that many of the rules of marriage in both systems were discriminatory on the grounds of gender and sex. Some of the rules were expressly and obviously discriminatory, such as the rule of common law which provided that a woman married in community of property had limited contractual capacity and that her husband, the bearer of the marital power, was entitled to manage their common estate on his own without referring to her at all.^⁷⁵ Or the rule of customary law which provided that women may ordinarily not inherit property.^⁷⁶
Other rules regulating marriage were discriminatory against women, not expressly, but in effect. In particular these rules often failed to acknowledge the division of labour within the household, in terms of which women bore primary and often sole responsibility for the maintenance of the household and caring for children and elderly members of the family. The responsibilities so often borne by women across all South African communities, whether wealthy or poor, and regardless of colour, meant that women were less likely to be able to participate in the labour market as successfully as men. (Indeed practices in the labour market as well were often discriminatory, further hampering women’s ability to participate.) The effect of the unequal division of labour in the household, and discriminatory practices in the labour market, meant that at the termination of a marriage, whether by death or divorce, women were often more materially vulnerable than men. This was caused by the fact that during the marriage women were often less able than men to accumulate property, and were also less able to compete in the labour market.
The Legislature has sought to remedy this inequality over the last twenty years with a range of legislative enactments governing the regulation of matrimonial property both during the subsistence of the marriage and upon its termination,^⁷⁷ as well as provisions extending the duty of support that arises on marriage to after the death of one of the spouses (the provision in question in this case),^⁷⁸ and seeking to improve the procedures whereby the duty of support may be enforced.^⁷⁹ This brief account of recent developments in the law of marriage makes it plain that marriage itself is an institution which is legally evolving. That evolution reflects and responds to changes in the broader community. The discussion of the rights of marriage that follows is based largely, but not exclusively, on the current common law rules regulating marriage.
Marriage, as presently constructed in common law,^⁸⁰ constitutes a contract between a man and a woman in which the parties undertake to live together,^⁸¹ and to support one another.^⁸² Marriage is voluntarily undertaken by the parties, but it must be undertaken in a public and formal way and once concluded it must be registered. Formalities for the celebration of a marriage are set out in the Marriage Act.^⁸³ A marriage must be conducted by a marriage officer,^⁸⁴ to whom objections may be directed. If objections to the marriage are lodged, the marriage officer must satisfy herself or himself that there are no legal obstacles to the marriage.^⁸⁵ Those wishing to get married must produce copies of their identity documents, or alternatively make affidavits in the prescribed form.^⁸⁶ Marriages must take place in a church or other religious building, or in a public office or home, and the doors must be open.^⁸⁷ Both parties must be present^⁸⁸ as well as at least two competent witnesses.^⁸⁹ A particular formula for the ceremony is provided in the Marriage Act,^⁹⁰ but other formulae, such as religious rites, may be approved by the Minister.^⁹¹ Once the marriage has been solemnised, both spouses, at least two competent witnesses, and the marriage officer must sign the marriage register.^⁹² A copy of the register must then be transmitted to the Department of Home Affairs to be officially recorded.^⁹³ These formalities make certain that it is known to the broader community precisely who gets married and when they get married. Certainty is important for the broader community in the light of the wide range of legal implications that marriage creates, as we shall now describe.
One of the most important invariable consequences of marriage is the reciprocal duty of support. It is an integral part of the marriage contract and has immense value not only to the partners themselves but to their families and also to the broader community. The duty of support gives rise to the special rule that spouses, even those married out of community of property, can bind one another to third parties in relation to the provision of household necessaries which include food, clothing, medical and dental services.^⁹⁴ The law sees the spouses as life partners and jointly and severally responsible for the maintenance of their common home. This obligation may not be excluded by antenuptial contract.
Another invariable legal consequence of the marriage is the right of both parties to occupy the joint matrimonial home. This obligation is clearly based on the premise that spouses will live together. The party who owns the home may not exclude or evict the other party from the home. Limited exceptions to this rule have been created under the Domestic Violence Act.^⁹⁵
The way in which the marriage affects the property regime of the parties to the marriage is variable at common law. The ordinary common law regime is one of c

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South Africa: Constitutional Court

Volks NO v Robinson and Others (CCT12/04) [2005] ZACC 2; 2005 (5) BCLR 446 (CC) (21 February 2005)