VAT N SIT: A LEGAL CONUNDRUM OR THE CHOICES OF YOUR ACTION

I remember one morning, in the eve of a Wednesday night, i was sitting hitting darts, with my chicken on the lose. Overcome by panic because of the unknown whereabouts of my chicken i did what i always do when in that state, i thought about VAT N SIT. I thought about how nice it would be to be living with my love, cooking together, laughing together, and making love till the sun sets at dawn. I thought about the ideologies then realised there where practicalities to be considered. The practicalities are what happens to the love of life if somethings happens to me. Then it hit me, the law has had the tendencies of not carring a damn about abstract but what the paper work says. I immediately realized that on paper, my bone of kentucky (Believe me it sounds more romantic in Zulu) is recognized as a stranger to me by the system and so she/he/they possess no legal right as it pertains to my estate. That shook me out of deep thought and that enabed to discover that the chicken was on my head the whole time.

Makes no sense right, but we are not here to understand the whereabout of chickens, we are here to understand VAT N SIT within a south african legal framework. What does our law, our governor of social contracts, say about the Lives and Times of Cohabitation. To answer the question of title, because of a seminal constitutional court judgment, vat n sit are no longer a legal conundrum nor a choices of your action (in a judgmental way) anymore.

The Definition of VAT N SIT

Vat n sit translated directly into english is take and sit. Now i guess it entails a situation wherein people take each other and sit together. But in terms of the practical definition of Vat n Sit, it is when two people with love in their eyes for each other, butterflies swelling arround their stomachs and the "i cant live without you" feelings for each other decide to move in together. Stay in one shelter, and use the same bathroom everyday. In more simplier terms, Vat n sit is when two people co-habit and co-exist all in the name of love.

Now the logistics of a Vat n Sit, is normally that similar to a marriage but without the referring to each as "my life" when the boys recommend a night out or "my husband" when the girls start talking about that girls trip to the maldives. Your relationship looks like marriage, quaks like a marriage but is still umjolo. Umjolo on steriods. Shout out vat n sit.

VAT N SIT WITHIN THE LEGAL SPHERE:

Before the constitutional court judgment of Jane Bwanya v Master of the High Court in 2021, lovers who part took in the vat n sit format had no legal rights. Meaning, if shit ended after 10 of co-habiting or if you seperated to your love by death without having been married to each, it meant that was it. All the time spent, promises shared, support given, you are left with nothing. Its like out of community of property with recognition from the law. The Bwanya happened and in a sense changed the game which extended the rights of surviving partners in permanent vat n sits: Lets take a dive into the seminal judgment of Bwanya

THE CONSTITUTIONAL COURT JUDGMENT OF Jane Bwanya v Master of the High Court

The matter of Jane Bwanya v Master of the High Court is a landmark case in South African family law, centered on the rights of surviving partners in permanent heterosexual life partnerships.

The background facts:

It all began with Ms. Jane Bwanya, a Zimbabwean national, and Mr. Anthony S. Ruch entered into a romantic relationship in 2014. Their bond deepened quickly; later that same year, Mr. Ruch asked Ms. Bwanya to move in with him on a permanent basis. From that point forward, the couple lived together, splitting their time between Mr. Ruch’s properties in Camps Bay and Seaways. Despite cohabiting, Ms. Bwanya maintained her place of residence at the Meadows, where she was employed as a domestic worker.

Social and Domestic Integration

The relationship was not a private or casual arrangement; it was publicly acknowledged and functioned as a familial unit. Key facts illustrating their commitment included:

• Public Representation: Mr. Ruch introduced Ms. Bwanya to his friends as his wife and referred to Ms. Bwanya’s brother as his brother-in-law.

• Social Life: The couple was recognized by their social circle as a committed pair and regularly attended social gatherings together.

• Future Planning: By October 2015, the partners were seriously contemplating having a child together.

• Economic Dynamics: The couple established a reciprocal duty of support; Mr. Ruch paid for all groceries, household necessities, and expenses, while Ms. Bwanya provided him with love, companionship, and emotional support.

• Personal Development: Mr. Ruch supported Ms. Bwanya’s independence by paying for her driving lessons and intending to purchase a car for her to use in a cleaning business they planned to launch together.

The Marriage Proposal and Preparations

In November 2015, Mr. Ruch formally proposed marriage to Ms. Bwanya, and she accepted. The couple began making concrete arrangements for their union, which involved a planned journey to Zimbabwe for lobola negotiations and to introduce Mr. Ruch to Ms. Bwanya’s family. To fund this transition—including the lobola and the purchase of a vehicle for the trip—Mr. Ruch began preparations to sell his Seaways property. Their intent was to marry immediately following the trip to Zimbabwe.

The Death of Mr. Ruch and the Legal Conflict

Tragedy struck on April 23, 2016, when Mr. Ruch passed away, only two months before the couple was scheduled to travel to Zimbabwe. His death created an immediate legal crisis regarding his estate:

• The Failed Will: Mr. Ruch had a will that nominated his mother as his sole heir; however, his mother had predeceased him in 2013.

• The Claims: Ms. Bwanya lodged two distinct claims against the estate: a claim for maintenance under the Maintenance of Surviving Spouses Act 27 of 1990 and a claim for inheritance under the Intestate Succession Act 81 of 1987.

• The Rejection: The executor of the estate rejected both claims on the basis that Ms. Bwanya was not a "spouse" and the relationship did not constitute a "marriage" as defined by the existing law.

The Constitutional Challenge In the High Vourt

This rejection led Ms. Bwanya to challenge the constitutionality of both Acts in the High Court. She argued that the exclusion of permanent heterosexual life partners, who have undertaken reciprocal duties of support, from the benefits of maintenance and inheritance violated her fundamental rights to equality and dignity.

While the High Court eventually declared the Intestate Succession Act invalid, it initially dismissed the challenge against the Maintenance of Surviving Spouses Act, citing that it was bound by the previous Constitutional Court precedent in Volks N.O. v Robinson.

Essentially the High Court found as follows to the Constitutional Challenge:

• It dismissed the constitutional challenge against the Maintenance of Surviving Spouses Act, finding itself legally bound by the Constitutional Court's previous majority decision in Volks N.O. v Robinson.

• Conversely, the court ruled that section 1(1) of the Intestate Succession Act was unconstitutional and invalid as it unfairly excluded surviving partners of permanent opposite-sex life partnerships from inheriting from a deceased partner's estate. To address this invalidity, the High Court implemented a reading-in order to extend inheritance rights to life partners who had undertaken reciprocal duties of support. Although a monetary settlement had been reached between the parties prior to the judgment, the High Court decided to rule on these constitutional issues to clarify the legal standing of the millions of South Africans living in cohabitation relationships.

It then went to the Constitutional court for puposes of having the court confirm the invalidity of the law found to be contrary to the Constitution as the invalidity does not take effect until the apex confirms its invalidity.

With the matter in the Constitutional court, the following are the issues that the ConCourt had to delve into

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THE ISSUE/LEGAL QUESTION.

The Constitutional Court was confronted with several complex legal questions and constitutional issues that challenged the intersection of traditional marriage laws and the reality of millions of South Africans living in cohabitation. The issues can be categorized into procedural threshold questions and substantive constitutional challenges.

1. Procedural Threshold Questions

Before addressing the merits of the case, the Court had to resolve two critical procedural hurdles:

• The Question of Mootness: Because Ms. Bwanya had already entered into a settlement agreement for R3 million with the heirs of the estate before the matter reached the Constitutional Court, her individual claim was technically resolved. The Court had to decide if it was still in the interests of justice to hear the matter because it affected approximately 3.2 million South Africans cohabiting outside of marriage.

• Jurisdiction and Confirmation: The Court was required to determine if it should confirm the High Court’s declaration that the Intestate Succession Act (ISA) was invalid. Simultaneously, it had to decide whether to grant direct leave to appeal regarding the High Court’s dismissal of the challenge to the Maintenance of Surviving Spouses Act (MSSA).

  
  

2. The Maintenance Question (The MSSA Challenge)

The central legal question regarding maintenance was whether the definition of “survivor” in Section 1 of the Maintenance of Surviving Spouses Act 27 of 1990 was unconstitutional.

• Constitutional Infringement: The Court had to determine if excluding permanent heterosexual life partners (who had undertaken reciprocal duties of support) from claiming maintenance violated the rights to equality (Section 9) and dignity (Section 10).

• The Volks Precedent: A major legal obstacle was the existing precedent in Volks N.O. v Robinson, where the Court had previously ruled that such an exclusion was not unfair. The Court was faced with the question of whether Volks was "clearly wrong" or if the changed social and legal context (the "evolving fabric of society") allowed for a different conclusion.

  
  

3. The Inheritance Question (The ISA Challenge)

The Court faced the question of whether Section 1(1) of the Intestate Succession Act 81 of 1987 was unconstitutional because it excluded surviving partners in permanent opposite-sex life partnerships from inheriting when a partner died without a will.

• Substantive Equality: The legal question was whether the term “spouse” could be restricted only to legally married partners, or if the exclusion of life partners constituted presumptively unfair discrimination on the grounds of marital status.

• Comparison to Same-Sex Partnerships: The Court had to consider the anomaly created by the Gory v Kolver decision, which granted inheritance rights to same-sex life partners because they could not marry at the time. With the passing of the Civil Union Act, the Court had to decide if it was now unfair to deny those same rights to opposite-sex life partners.

  
  

4. The "Choice Argument" and Vulnerability

A pivotal legal and factual question was whether the "choice" not to marry is a valid basis for denying legal protection.

• Illusory Choice: The Court was asked to consider new evidence suggesting that for many women, the choice to marry is illusory due to a lack of bargaining power, financial dependence, or the "sexist and patriarchal" nature of society.

• Reciprocal Duty of Support: The Court had to decide if a contractually undertaken duty of support in a life partnership should be legally recognized as having the same status as a duty arising by operation of law in a marriage.

  
  

5. The Separation of Powers

Finally, the Court faced the question of Remedy. If the Acts were found unconstitutional, to what extent could the Court "read-in" new language to the statutes without overstepping its bounds and encroaching on the Legislature's domain to draft family law policy?

With the issues outline let delve into the court discussion.

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THE COURT APPLICATION OF THE LAW IN ANSWER TO THE ISSUES:

In the majority judgment of Bwanya v Master of the High Court, Madlanga J (writing for the majority) provided a rigorous analysis of the intersection between marital status, dignity, and the evolving social reality of life partnerships in South Africa. The court's discussion and evaluation can be broken down into how it addressed the two statutory challenges while navigating existing precedent.

1. Re-evaluating the "Choice Argument" and Vulnerability

A central pillar of the majority’s evaluation was a direct critique of the "choice argument" established in Volks N.O. v Robinson. The Volks majority had previously held that surviving partners in life partnerships were not unfairly discriminated against because they had "chosen" not to marry and thus chosen to forego the legal benefits of marriage.

• Analysis of Reality vs. Abstraction: The honorable justice argued that the "choice" to marry is often illusory, particularly for women in a patriarchal society. He noted that factors such as a lack of bargaining power, financial dependence, and the "sexist, patriarchal" nature of society often mean that a woman must simply be content with a man’s choice not to marry. I think since the judgment the social dynamics between man and woman has changed to a certain degree and the lack the court outlined has shrinked drastically.

• Evaluation of Legal Protection: The Court evaluated whether life partnerships are, in themselves, deserving of legal protection regardless of the "choice" element. It concluded that these relationships are a social reality through which millions lead stable, committed lives, and the law should not "penalise or ignore them because they are unconventional".

2. Applying the "Reciprocal Duty of Support"

The majority analyzed the distinction made in Volks between a duty of support arising "by operation of law" (in marriage) versus one arising from "agreement" (in a life partnership).

• Impact of Common Law Development: The Court relied heavily on the Supreme Court of Appeal's decision in Paixão v Road Accident Fund. In that case, the SCA extended the "dependants’ action" to heterosexual life partners because their relationship was "akin to marriage" and involved a contractually undertaken duty of support.

• Applying the Principle: Madlanga J evaluated that since Paixão established that a contractually undertaken duty of support in a familial setting is worthy of legal protection, it is "simplistic" and no longer fitting to distinguish between marriage and life partnerships purely based on the source of the duty.

3. The Analysis of the Maintenance Challenge (MSSA)

The Court applied the law to section 2(1) of the Maintenance of Surviving Spouses Act (MSSA), which limits maintenance claims to surviving "spouses".

• Unfair Discrimination: The Court found that excluding permanent life partners who had undertaken reciprocal duties of support constitutes unfair discrimination on the ground of marital status.

• Dignity and Equality: The evaluation was that this exclusion impairs the dignity of the survivor by treating them as a "legal stranger" to their deceased partner’s estate despite years of dedication and mutual support.

• Justification (Section 36): The Court evaluated whether this limitation was justifiable. It found that the purpose of the MSSA, to protect surviving partners from destitution, is actually thwarted by the exclusion of life partners who have the same needs as surviving spouses. It also dismissed concerns regarding the difficulty of proving a "permanent life partnership," noting that courts already handle such evidentiary hurdles for same-sex partners.

4. The Analysis of the Inheritance Challenge (ISA)

The Court then turned to section 1(1) of the Intestate Succession Act (ISA), which historically excluded heterosexual life partners from inheriting where no will exists.

• The Same-Sex Anomaly: The Court evaluated the precedent in Gory v Kolver, which had "equalised up" same-sex life partners by granting them inheritance rights because they could not legally marry at the time.

• Substantive Equality Evaluation: Madlanga J observed that with the passage of the Civil Union Act, same-sex partners can now marry, yet they still retain the "Gory benefit" (inheritance rights for life partners). He concluded that it was presumptively unfair to continue providing this benefit to same-sex life partners while denying it to heterosexual life partners, especially when both groups are equally capable of marriage and both contain vulnerable members.

• Conclusion on ISA: The Court confirmed that the exclusion in the ISA was unconstitutional as it violated the rights to equality and dignity.

5. Dealing with Precedent (The "Clearly Wrong" Standard)

The majority had to address why it was departing from the Volks decision without declaring it "clearly wrong".

• Analysis of Context: Madlanga J applied a sophisticated legal maneuver: he argued that while Volks was "wrong," he did not need to meet the stringent "clearly wrong" standard to depart from it because the legal and social context had changed significantly since 2005.

• New Evidence: Specifically, the Court noted that it now had narrative evidence regarding the "illusory" nature of choice that was not before the Volks court, as well as the significant common-law development in Paixão. This "different context" allowed the majority to reach a different outcome.

Final Evaluation and Remedy

The Court concluded that both Acts were constitutionally invalid to the extent of their exclusions. It implemented a reading-in remedy to include permanent life partners in the definitions of "survivor" and "spouse". However, acknowledging the separation of powers, it suspended these orders for 18 months to allow Parliament to draft its own legislative cure for the plight of the approximately 3.2 million South Africans living in cohabitation.

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IMPACT OF THE JUDGMENT ON THE LIVED REALITIES:

The judgment in Bwanya v Master of the High Court has fundamentally shifted the legal landscape for millions of South Africans, moving away from a rigid focus on formal marriage toward a recognition of the social reality of permanent life partnerships.

To understand how this judgment impacts our lived realities which are governed by these law let outlined the impact of this ruling on lived realities and the key lessons every South African should understand about how the law now governs their intimate relationships.

1. The Impact on Lived Realities

The most significant impact of this judgment is the broadening of the legal safety net for individuals living in cohabitation arrangements, colloquially known as "vat en sit".

• Protection for the Vulnerable: The Court recognized that for many of the 3.2 million South Africans cohabiting outside of marriage, the "choice" not to marry is often illusory. In a patriarchal society, women often lack the bargaining power to insist on marriage, and this judgment ensures they are no longer "penalised or ignored" simply because their relationship is unconventional.

• End to "Legal Stranger" Status: Previously, a surviving partner who had dedicated decades to a household could be treated as a "legal stranger" to their partner’s estate upon death. This judgment ensures that if a partner dies without a will (intestate), the survivor is no longer automatically excluded from inheriting.

• Security Against Destitution: By extending the Maintenance of Surviving Spouses Act, the Court provided a vital mechanism for surviving partners to claim maintenance from a deceased partner's estate if they are unable to provide for their own needs. This prevents survivors from falling into lack after the death of a breadwinner.

• Equality Across Sexual Orientations: While previous rulings focused heavily on same-sex partners (who originally could not marry), this judgment "equalises up" the law by extending similar protections to heterosexual life partners, ensuring that marital status is not used as a tool for unfair discrimination.

2. What South Africans Must Understand About the New Law

To navigate their lives better, South Africans must take several critical lessons from this judgment regarding their rights and responsibilities:

• Rights are Not Automatic; They Must be Proved: Living together does not automatically grant these new rights. To qualify for maintenance or inheritance, a survivor must prove the existence of a "permanent life partnership" in which the partners had undertaken reciprocal duties of support.

• The Criteria for "Permanent Life Partnership": The Court established that proving such a relationship involves a factual inquiry. South Africans should be aware that the following factors are used as evidence:

  • The duration of the partnership.

  • Whether the partners shared a common abode and pooled their financial resources (e.g., sharing responsibility for groceries and living expenses).

  • How the relationship was viewed by friends and family (e.g., did they introduce each other as husband and wife?).

  • Whether they made provision for each other in medical aids, pension benefits, or insurance policies.

  • The presence of children born or raised within the relationship.

• The Distinction from Marriage Still Exists: While the gap has narrowed, marriage remains a formal, legally regulated status with its own specific regime. Marriage provides an immediate, easily ascertainable legal status, whereas life partnerships require extensive evidentiary proof in court after a partner has passed away.

• Wills are Still Essential: The judgment was necessitated partly because so few people execute wills. The Court noted that it is "unrealistic" to expect everyone to make provision in a will, but doing so remains the only way to ensure a partner is protected without them having to undergo a difficult and potentially expensive legal battle to prove the partnership existed.

Disclaimer: The views and analyses expressed on this blog are for informational and educational purposes only. This site serves as a self-guiding diary intended to facilitate my personal understanding of specific subjects and does not serve as an authoritative reference. Information is provided "as is" without any guarantees of completeness or accuracy. Please consult a local, professionally trained individual in the subject matter or you can conduct your own research for any formal inquiries or professional advice. PSA, dont corner an attorney at a Maza or a Braai on a weekend and consult there. Preferably arrange an appointment with the office