Bwanya v Master: A Softening of the Doctrine of Precedent

Osman, Fatima

Bwanya v Master: A Softening of the Doctrine of Precedent

Journal Article

2024

Journal Title

Constitutional Court Review

Faculty

Faculty of Law

Abstract

Bwanya v Master of the High Court [2021] ZACC 51, 2022 (4) BCLR 410 (CC), 2022 (3) SA 250 (CC) provided the Constitutional Court with the opportunity to reconsider its previous judgment of Volks v Robinson [2005] ZACC 2, 2005 (5) BCLR 446 (CC) and its implications for the inheritance rights of opposite-sex partners. The Court in Bwanya, in a much-anticipated decision, declared the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 unconstitutional to the extent that the legislation did not provide for partners in a permanent life partnership in which the partners have undertaken reciprocal duties of support. The article argues that while Bwanya may be distinguishable from Volks, it would be an artificial—rather than meaningful—distinction that seeks to avoid a confrontation with Volks. The Bwanya and Volks cases raise the same substantive issue, being the rights of unmarried partners, and the Court should be applauded for confronting the issue directly rather than skirting the issue through superficial distinctions. Unfortunately, the Court’s approach in confronting and departing from Volks without declaring the previous judgment wrong is confusing and unconvincing. The judgment appears to represent a softening of the doctrine of stare decisis and a shift in the Court’s approach regarding the rights of unmarried parties, as legislative intervention in this area is not forthcoming.