sexual health and human rights in the african region - The ICHRP

[59] The decision of the Constitutional Court in Volks v Robinson, 262 however, stands
for a regressive standard. In this case, at first instance, it had been held at a High
Court level 263 that a legislative instrument – the Maintenance of Surviving
Spouses Act of 1990 – which granted only a surviving ‘spouse’ but not a partner
the right to claim maintenance from the estate of his or her deceased spouse,
constituted unfair discrimination on the ground of marital status contrary to
section 9(3) of the Constitution. The applicant was a survivor of a permanent
relationship which was akin to living as husband and wife She had submitted a
claim for maintenance out of her deceased partner’s estate, but the claim had
been declined on the ground that she was not a ‘spouse’ as she had not been
married to the deceased. She had argued that the Act discriminated against her
on the grounds, inter alia, of marital status contrary to section 9(3) of the
Constitution. On appeal by the estate, the Constitutional Court, by a majority,
reversed the decision and held that it was not unfair discrimination to grant a
benefit only to a spouse.
[60] The reasoning of the Constitutional Court in Volks was essentially based on
validating the legislative intention behind the Maintenance of Surviving Spouses
Act rather than subjecting the Act to the equality and non-discrimination tenets
of the Constitution. The Court said that while the Act discriminated against
unmarried persons, the discrimination was not unfair because the intention of
the Act was to benefit only those that had chosen to enter into a marriage and not
those that had chosen not to enter into a marriage. The underpinning assumption
by the Court was that people make choices about marriage and that it is not for
the Constitution to impose choices on people who have chosen to cohabit rather
than marry. What is missing from the Court’s approach is awareness of marriage
as a legally privileged institution when juxtaposed with alternative family
institutions. Also missing from the Court’s approach is awareness of the
disparate effect of the Act on women, especially, as they are in a relatively
weaker economic position than their male partners and for this reason are also in
a relatively weaker position to decide on marriage. The approach of the Court in
Volks is inconsistent with the Court’s own overall approach to substantive
equality. 264
[61] It is important to note that the judges constituting in the minority in Volks
(Justices Mokgoro, O’Regan and Sachs) were able to incorporate gender into the
unfair discrimination analysis to come to a different conclusion. Justices
Mokgoro and Justice O’Regan were of the view that differentiation on the basis
262 Volks v Robinson 2005 (5) BCLR 466 (Constitutional Court of South Africa).
263 Robinson v Volks 2004 (6) 288 (High Court of South Africa).
264 E Bonthuys ‘Institutional Openness and Resistance to Feminist Arguments: The Example of the South
African Constitutional Court’ (2008) 20 Canadian Journal of Women & Law 1.
91