Du Toit v Greyling NO (78173/2014) [2016] ZAGPPHC 892 (23 September 2016)

Du Toit v Greyling NO (78173/2014) [2016] ZAGPPHC 892 (23 September 2016)

The court held that the Maintenance of Surviving Spouses Act does not extend maintenance rights to cohabitees in heterosexual relationships. The Constitutional Court's decision in Volks v Robinson is binding and confirms that only legally married spouses qualify as 'survivors' under the Act. The principle of subsidiarity requires that any challenge to the exclusion of cohabitees must be directed at the constitutionality of the legislation, not through incremental development of common law. The court lacks jurisdiction to declare Parliament's failure to legislate as unconstitutional, as this is reserved for the Constitutional Court. The exception to the plaintiff's maintenance claim is...

Citation
[2016] ZAGPPHC 892
Parties
Plaintiff: Martha Louise Du Toit; Defendant: Lauren Greyling NO
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 September 2016
Case Number
78173/2014
Procedural Posture
Exception Application / Exception to Particulars of Claim Under Rule 23(1)
Outcome
Exception to the maintenance claim upheld; each party to pay its own costs; plaintiff's claim as creditor under the will not precluded.
Judges
Siwendu
Legal Topics
Maintenance of Surviving Spouses Act, Cohabitation Rights, Exception Procedure, Constitutional Challenge, Subsidiarity Principle
Family and Children Civil Procedure Maintenance of Surviving Spouses Act Cohabitation Rights Exception Procedure Constitutional Challenge Subsidiarity Principle

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Parties

Martha Louise Du Toit

Plaintiff

Lauren Greyling NO

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim Under Rule 23(1)

Legal Issues

  1. 1 Whether a cohabitee in a heterosexual partnership can claim maintenance against the deceased estate of a former partner.
  2. 2 Whether the Maintenance of Surviving Spouses Act 27 of 1990 extends protection to cohabitees.
  3. 3 Whether the court can develop the common law to provide maintenance rights to cohabitees.

Ratio Decidendi

The court held that the Maintenance of Surviving Spouses Act does not extend maintenance rights to cohabitees in heterosexual relationships. The Constitutional Court's decision in Volks v Robinson is binding and confirms that only legally married spouses qualify as 'survivors' under the Act. The principle of subsidiarity requires that any challenge to the exclusion of cohabitees must be directed at the constitutionality of the legislation, not through incremental development of common law. The court lacks jurisdiction to declare Parliament's failure to legislate as unconstitutional, as this is reserved for the Constitutional Court. The exception to the plaintiff's maintenance claim is...

Court Disposition

Exception to the maintenance claim upheld; each party to pay its own costs; plaintiff's claim as creditor under the will not precluded.

Orders

  • The exception raised in respect of the maintenance claim is upheld.
  • Each party is to pay its own costs.