Court rules on validity of life partnership

A WOMAN’S legal bid for the court to declare her and her now-deceased partner life partners – which would mean she could benefit from his estate – has failed as the court found that, although they were lovers, he had been married to his now-former wife until shortly before he died.

The applicant initially lodged an application in the Gauteng High Court, Johannesburg, to declare that her relationship with her partner constituted a customary marriage. She later withdrew the application.

She then asked for an order declaring that she and Refilwe Kekana were in a permanent life partnership undertaking reciprocal duties of support.

In court papers she said she and the deceased had met in November 2017. They agreed they wanted a committed relationship, to grow old together and be separated only by death.

In March 2018, they had moved in together. Kekana’s family had initiated the lobolo process. In May 2018, he and his sister had travelled to meet her family and had paid R19 000 lobolo, with an outstanding amount of R11 000. In September 2018, there was a welcoming ceremony at the Kekanas’ family home in Soshanguve.

Most of the deceased’s family had attended the gathering, except for a daughter of the deceased, who refused to accept their relationship.

After the lobolo had been paid, they had regarded themselves as husband and wife.

In December 2018, they had gone on a cruise to celebrate their love.

Shortly afterwards, they had bought a home. In August 2020, Kekana had performed a small ritual in the house to introduce the new home to their respective ancestors. They had also transferred money into each other’s accounts to mutually support each other.

In January 2021, the deceased died intestate. The applicant said they had been life partners.

The deceased’s daughter denied that. She had regarded the applicant as her father’s girlfriend. She said her mother had been married to her father when the lobolo negotiations were concluded. Thus, the applicant could not claim to be the deceased’s surviving spouse. The applicant referred to a Constitutional Court judgment extending the definition of a surviving spouse to include the surviving partner of a permanent life partnership.

But Acting Judge N Mazibuko said the question was whether the applicant and the deceased were competent to enter into a marriage or a permanent life partnership. Kekana and his now-former wife had married in July 1994 and divorced only in 2020 – 10 months before his death.

The judge said that when the applicant and the deceased promised “until death do us part” when they moved in together in 2017, the deceased had not been competent to conclude a marriage or familial relationship, as he was married and the marriage.

Thus, the applicant was not surviving spouse.