First admitted as prosecutor: 1999
Date of Birth: 10 May 1975
- Bwanya v Master of the High Court, Cape Town and Others 2021 (1) SA 138 (WCC)
- Hardisty and Another v Noor and Others (6885/16)  ZAWCHC 168 (24 October 2016)
- Vos v Fynbosland 304 CC (2864/2016)  ZAWCHC 20 (27 February 2017)
- Van Zyl v Siyaya Engine Rebuilders CC and Another (A267/2016)  ZAWCHC 137 (19 October 2016)
The celebrity judgment in Advocate Penelope Magona-Dano’s otherwise thin judicial “Best Of” collection is the 2020 matter of Bywana v Master of the High Court, Cape Town & Others.
The judgment was welcomed by the Legal Resources Centre as “an important development of the South African jurisprudence on the rights of opposite-sex permanent life partnerships. Often women in such relationships are vulnerable and suffer discrimination when the relationship is terminated by death. The decision is therefore a welcome development in advancing the rights of women to equality and dignity specifically in relationships.” [Source]
In that case, the applicant sought an order declaring provisions of the Intestate Succession Act (ISA) and the Maintenance of Surviving Spouses Act (MSSA) unconstitutional, as they did not recognise or provide for her claims against the estate of the deceased. The deceased had passed away leaving a will, but the will nominated his mother, who had died intestate three years earlier, as heir to his estate.
Magona-Dano set out the history of the relationship between the applicant and the deceased: they had been permanent life partners, intended to have a child and to get married once lobolo had been negotiated.
The acting judge noted the evidence of people close to the couple which supported the commitment to get married, and that they had planned to travel to Zimbabwe so the deceased could meet the applicant’s family.
The applicant argued that the ISA’s exclusion of life partners in permanent opposite-sex life partnerships from inheriting was unconstitutional and sought a reading in of the words “or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support and had been committed to marrying each other” wherever the word “spouse” appeared in the section.
Magona-Dano considered the precedents which developed the law and the “inclusivity approach for the relationships … which in my view may be considered towards what ought to be the outcome of the relief sought by the Applicant.”
She held that a settlement agreement entered into between the applicant and certain of the respondents did not render the matter moot:
“[T]he legal points whether the Applicant ought to be recognised as the deceased’ s opposite sex permanent life partner, the constitutional challenge involving whether there should be a reading in and a different interpretation that is required to the ISA or MSSA remains alive and not merely an academic question.”
She found that the applicant and the deceased were permanent life partners who had undertaken reciprocal duties of support to one another and that there was differential treatment between same-sex couples, who stood to benefit from the ISA even if they were not married, and there was “no legitimate purpose why the heterosexual permanent life partnerships are not having a similar benefit”.
Noting the traditional prejudice women suffered “after years of dedication and support to the livelihood of a permanent life partnership” Magona-Dano found that there was an infringement of the applicant’s rights to equality and dignity, “as they are being treated differently to their same-sex life partnership, the latter do inherit even if they are not married. This discrimination is on specified grounds of marital status, sexual orientation, sex, and gender.”
She found this differentiation amounted to discrimination which was unfair and unjustified.
On the challenge to the constitutionality of the ISA, Magona-Dano therefore concluded that “the failure to include the heterosexual partnerships within Section 1(1) of the ISA is unconstitutional to Ms Bwanya’s rights and the rights of all those similar in her circumstances as described by the WLCT [Womens’ Legal Cetre Trust], particularly their rights to equality and dignity in terms of sections 9 and 10 of the Constitution. The impact of the impugned provision unfairly discriminates and cannot be justified in our constitutional order.”
Magona-Dano found that the doctrine of precedent precluded the challenge to the MSSA. The application, therefore, succeeded in respect of the challenge to the constitutionality of the Intestate Succession Act.
A celebrated judgment, but one — according to the version on SAFLII — is riddled with spelling errors, typos, fragmentary paragraphs and is quite poorly written in sections. Something that seeps into Magona-Dano’s application form which suggests a sloppiness that should be a red-flag for the Judicial Service Commission (JSC).
In her application form, she also admits to being a payment plan for debts owed to “some banks” and to the South African Revenue Service in respect of her tax returns.
Her appointment may have the potential to cause future embarrassment for a division that is currently struggling for credibility at the moment.
April 2021 Interview: