The South Gauteng High Court has ruled against the girlfriend of a married man who wanted to claim against his estate. 

Mildred Gasa had approached the court on behalf of her late relative Sindile Ayanda Dlala who was in a romantic relationship with Ndumiso Mbanjwa.

Mbanjwa was married to Phelisa, the second respondent.

Mbanjwa died of diabetes on May 5 2021 while Dlala died a few days later. 

According to court papers, Mbanjwa and Phelisa were married in June 2003 and had three children. In 2010, he started a relationship with Dlala and had one child. 

The issue before the court was whether Dlala and Mbanjwa lived together as lovers, if their relationship qualified as life partners and whether Dlala’s estate was entitled to have a claim from Mbanjwa’s estate in terms of section 1 of the Intestate Succession Act as Mbanjwa died without a will and had been legally married to Phelisa at the time of his death.

Gasa brought an application for the court to declare Dlala as Ndumiso’s permanent surviving life partner in terms of section 1 of the Intestate Succession Act. She also wanted Dlala's estate be permitted to claim inheritance in terms of section 1(1) of the act despite Mbanjwa having a subsisting marriage with the second respondent at the time of his death.

Gasa also sought the court to be permitted to claim a child share portion in the estate and that the master of the high court in Johannesburg be authorised to accept the claim of Dlala’s estate.

Phelisa opposed the application on the grounds that by virtue of her marriage to Mbanjwa, there are no grounds to declare Dlala the surviving spouse or life partner. Further that there is no life or permanent partnership that could have existed between Mbanjwa and Dlala. She sought an order dismissing the application with costs. But Gasa disputed this. 

According to her, Dlala's permanent life partnership with Mbanjwa was akin to a marriage and they had reciprocal duties of support towards each other.

"It was not in dispute that on June 16 2017, Ndumiso and Sindile celebrated their white wedding. They had attempted to register their marriage at home affairs in Pietermaritzburg but were advised that they could not register the marriage as Mbanjwa was still married to Phelisa. Despite the rejection of home affairs to register their marriage, Mbanjwa and Dlala remained committed to their relationship and resided together to such an extent that family members, friends and Mbanjwa’s work colleagues considered them to be a married couple. Mbanjwa’s work colleagues knew Dlala as his wife. When he became terminally ill and was diagnosed with diabetes, Mbanjwa’s employers booked her a flight ticket for her to go and see him in Switzerland. They remained together until Mbanjwa’s death and Dlala took care of him while he was on his death bed," claimed Gasa in her application. 

Phelisa denied that Dlala should be regarded as her husband's permanent surviving life partner. She argued that Mbanjwa was married to her and that whoever had stayed with him as his wife was in an adulterous relationship with him.

She denied that she was no longer residing with him, that they were not on speaking terms and not involved in a loving marital relationship prior to his death. She denied that Dlala had a personal relationship with her husband to the extent that she would know his heart’s desires. 

The applicant relied on the Constitutional Court’s decision in the Bwanya matter where the court held that a surviving life partner in a permanent opposite-sex life partnership can inherit or claim maintenance if the partners undertook reciprocal duties of support to each other in terms of the Maintenance of Surviving Spouse Act and Intestate Succession Act.

In line with the Constitutional Court judgment in Bwanya, Gasa argued that Dlala's relationship with Mbanjwa qualifies as a permanent life partnership despite him being married at the time of his death.

In deciding the matter, the court relied on section 8 of the Civil Union Act which states that a person may only be a spouse or partner in one marriage or civil partnership at any given time. It prohibits such a person to conclude a marriage under the Marriage Act or Customary Marriages Act. This meant that Ndumiso could only be involved in one marriage or civil partnership.

When he entered his partnership arrangement with Dlala he had acted against the provisions of section 8.

"The court was therefore satisfied that Dlala was Mbanjwa’s permanent surviving life partner but since Mbanjwa was married at the time of his death, Dlala could not be regarded as Mbanjwa’s spouse and therefore, cannot lodge a claim against his estate.

"The application was therefore dismissed" read the judgment.