The Constitutional Court is hearing arguments in a case that seeks to give heterosexual life partners the same benefits as same-sex couples.

Jane Banya has approached the Constitutional Court to confirm the Western Cape High Court ruling in her favour on an inheritance claim.

She had been the life partner of a wealthy Zimbabwean man who died in 2014. But she had been excluded from inheritance because the Intestate Succession Act doesn’t extend the same rights to heterosexual life partners as it does to same sex couples.

The High Court ruled that the Act was unconstitutional and approved Banya’s claim.

It did not approve her claim to maintenance under the Maintenance of Surviving Spouses Act.

She has now asked the Constitutional Court to extend these benefits to her.

Banya’s advocate, Robert Stelzner says, “This case is about benefits which are not extended to survivor of a heterosexual life partnership. Whereas if the survivor had been of the same sex, they would have obtained the benefits under the interstate succession act, under the decision of this court in Laubscher N.O. v Duplan and Another.”

The Constitutional Court has questioned whether it would not be overreaching its powers if it declared Section 1 of the Maintenance Act unconstitutional.

“Mr Stelzner, one of the reasons why the majority in Volks vs Robertsons declined to declare section 1 of the Maintenance Act unconstitutional was the view that the regulation of life partnerships would best be handled by Parliament and that brings us to the separation of powers issues….had parliament adopted the domestic partnership bill which was prepared then the applicant and everyone else in a similar position would not have been in front of this court. The only reason we are here is because parliament did not do what this court required it to do,” Justice Leona Theron told Stelzner.

Fifteen years ago the Constitutional Court made a ruling which set in motion processes for parliament to amend the Domestic Partnership legislation to put marriage and committed partnerships on the same level. However, this hasn’t happened yet. Now Banya wants the court to force parliament to move on the matter as Stelzner elaborates.

“Parliament has simply omitted to do that which the court required it to do 15 years ago, there is a gap and that gap we respectfully submit under sec 172 must be filled by the courts including this court otherwise the applicant and those in her position will have to wait who know how long for parliament to get around to discussing and adopting that which the south African law reform commission twice already has spent so much time producing,” says Stelzman.

The Commission for Gender Equality and the Women’s Legal Centre Trust have been admitted as friends of the court in the case. The Women’s Legal Centre Trust drew on numerous case studies to show the impact that the Constitutional Court judgment on this matter will have on a range of women. It included women not represented by the applicant’s particular circumstances. They argued that simply marrying to secure legal protection is not a viable option for many women.

The Gender Commission agreed with the applicant and the Western Cape High Court that the Intestate Succession Act is unconstitutional and that this case is potentially the final step in achieving full and equal protection and recognition of all life partnerships.