A relative of a deceased woman who had a white wedding with a married man, failed to claim from his estate after the high court ruled that their relationship offended Section 8 of the Civil Union Act.
The ruling comes after Mildred Gasa approached the South Gauteng High Court in Johannesburg on behalf of her late relative, Sindile Ayanda Dlala, who was in a relationship with the late Ndumiso Sizo Mthembeni Mbanjwa.
Ndumiso was legally married to Phelisa Lynette Mbanjwa and they had three children.
Ndumiso had one child with Dlala.
Ndumiso and Dlala celebrated their white wedding on June 16, 2017.
They attempted to register their marriage at Home Affairs in Pietermaritzburg but were told that they could not register their marriage due to the fact that Ndumiso’s marriage with Mbanjwa was still in existence.
Despite failing to register their marriage, they continued living together as a couple.
Ndumiso died on May 5, 2021 and then Dlala also died 17 days later.
Gasa brought the application wanting the court to recognise that Dlala was Ndumiso’s permanent surviving life partner so that she can claim a child share portion in the estate.
In her application, Gasa argued that Dlala and Ndumiso’s relationship was akin to a marriage and they had reciprocal duties of support towards each other.
Gasa added that she was not challenging Ndumiso and Phelisa’s marriage, however, she argued that her relative also qualifies as Ndumiso’s permanent life partner and should enjoy the same benefits under Section 1(1) of the Civil Union Act.
She said Ndumiso and Dlala’s relationship was recognised as one of marriage because they resided together to such an extent that family members, friends, and Ndumiso’s work colleagues considered them to be a married couple.
When Ndumiso became terminally ill after he was diagnosed with diabetes, Ndumiso’s employers booked Dlala a flight ticket to go and see him in Switzerland.
Meanwhile, Mbanjwa opposed Gasa’s application and contended that Ndumiso was married to her, and that his relationship with Dlala was an adulterous relationship.
However, she admitted that she and Ndumiso were no longer staying together. She further admitted that Ndumiso and Dlala had one child who was born on July 16, 2016 but denied that it was a permanent life partnership.
Judge J Francis said the Act which Gasa used to claim a portion for the child in Ndumiso’s estate mentions that a surviving spouse of a deceased person who died intestate, would be entitled to a child’s share of the deceased estate, but it does not deal with a life partnership.
“The applicant (Gasa) did not bring an application to challenge the constitutionality of the aforesaid section. She wants this court to read into the Act words that are not there,” said Judge Francis.
The judge said Ndumiso and Dlala had remedies available to them to make their marriage valid, but they failed to do so.
“He (Ndumiso) could have applied to court for a decree of divorce, but did not do so. He was advised that he could not get married to Dlala while he was still married in terms of the Civil Union Act and he did nothing about it,” added the judge.
In addition, the judge said Dlala and Ndumiso’s life partnership arrangement offended the provisions of Section 8 of the Civil Union Act.
Judge Francis dismissed the application.
brenda.masilela@iol.co.za
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