Synopsis:
Application for leave to appeal against the High Court decision concerning the constitutionality of the Maintenance of Surviving Spouses Act 27 of 1990. The High Court found the exclusion of permanent life partners to be in violation of the right to equality and dignity, and therefore unconstitutional. Skweyiya J writing for the majority found that the distinction between married and unmarried people is not unfair as there is a reciprocal duty of support between married persons, and the law imposes no such duty upon unmarried persons. He found that the differentiation did not amount to unfair discrimination, and did not violate dignity. Ncgobo J found in a separate concurring judgment further that the provisions of the Act do not impair dignity, do not unfairly discriminate and are therefore not unconstitutional. Sachs J in a dissent found that the critical question was whether there was a family relationship of such proximity and intensity as to render it unfair to deny the right to claim maintenance after death. Mokgoro and O'Regan JJ in a joint dissent found the provisions to constitute unfair discrimination on the grounds of marital status.
