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[2011] ZAGPJHC 68
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Paixao and Another v Road Accident Fund (05692/10) [2011] ZAGPJHC 68 (1 July 2011)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: 05692/10
DATE:01/07/2011
In the matter between:-
PAIXAO, MARIA
ANGELIN
.........................................................
First
Plaintiff
PAIXAO, MICHELLE ORLANDA SANTOS
............................
Second
Plaintiff
And
ROAD ACCIDENT
FUND
.................................................................
Defendant
J U D G M E N T
MATHOPO, J
:
[1]
This is an action
for loss of support arising out of the death of Jose Gomes (Gomes)
who was killed in a motor accident on the
02
nd
January 2008.
[2]
The First Plaintiff
was in a relationship with Mr Gomes and lived with him but was not
married to him.
[3]
The Second
Plaintiff is the First Plaintiff’s daughter she lived with the
First Plaintiff and Mr Gomes. She was not formerly
adopted by Mr
Gomes.
[4]
The Plaintiffs
contend that before and during the periods that they lived together
with the deceased, he has undertaken contractually
to maintain and
support the plaintiffs and accordingly he was legally obliged to do
so and he would have done so for the remainder
of the First
plaintiff’s life and until the Second plaintiff had become
self-supporting.
[
5] The First Plaintiff
alleges that she is a party who should be placed in the same position
as a widow who was legally married
to the deceased. She contends
that it is clear from the undisputed facts that she had an agreement
with the deceased that he would
(and has) supported her and her
children and that this right is legally enforceable and worthy of
protection. Further support
for the agreement according to the
plaintiffs, is to be found in the fact that the deceased paid for the
wedding and honeymoon
of the Second plaintiff and also paid for the
school or university fees of the other daughter. According to the
plaintiff this
was also confirmation of the fact that they were a
close, knit and stable family and regarded themselves as such.
[6]
The Defendant
contends that neither the First nor the Second plaintiff by virtue of
the fact that the First plaintiff was not married
to the deceased and
that the Second plaintiff was not legally adopted by the deceased are
not entitled to claim compensation for
loss of support from the
defendant (Road Accident Fund) in terms of section 17 (1) of the Road
Accident Fund Act No. 56 of 1966.
Section 17(1) provides that the
Fund is obliged to compensate
“…
any person (the Third Party) for any loss or damage which the Third
Party has suffered as a result of … the
death of any other
person..”
[7] The trial of this issue came before me by way
of a stated case in terms of Rule 33 (1) and (2) of the uniform rules
of the court.
[
8] The stated or the
agreed facts may be summarised as follows:
8.1 The First Plaintiff is Maria Angelina Santos
Paixao born on 10 June 1957.
8.2 The Second Plaintiff is Michelle Orlando
Santos Paixao born on 26 February 1991.
8.3 The First Plaintiff was married to Manual Paixao
Three daughters were born of the aforesaid marriage namely:
- Fatima Regina Santos Paixao born the 07
th
September 1981.
- Marilize Roberta Santos Paixao born 17
th
September 1985.
- Michelle Orlando Santos Paixao born on the 26
th
February 1991 (The Second Plaintiff).
8.4 Manuel Paixao died on the 08
th
June 2000.
8.5
On the 29
th
October 2003, the First Plaintiff and Jose Adelino Do Olival Gomes
who was born on the 29
th
October 1960 (“the deceased”) commenced living together
in a permanent life partnership with the First Plaintiff’s
children (hereinafter referred to as “the period of
co-habitation”).
8.6 On the 02
nd
January 2008, the deceased was killed in a motor vehicle collision in
respect of which the Defendant accepted liability in terms
of the
Road Accident Fund Act No 56 if 1996.
8.7 Prior to and for a period during the “period
of co-habitation”, the deceased was married to a certain
Healdina De
Jesus Carreira Melro according to the laws of Portugal,
but were separated at the time
.
8.8 The deceased and the said Healdina De Jesus
Carreira Melro were divorced according to South African Law on the
10
th
June 2005.
8.9 The deceased and the said Healdina De Jesus
Carreira Melro were divorced according the Portuguese Law in June
2007.
During the “period of co-habitation”:
8.10.1 The First Plaintiff did not work after the
end of February 2004.
8.10.2 The deceased paid for food, clothing, medical care, all
household expenses, holidays and university fees of the First
Plaintiff’s
second daughter Marilize Roberta Santos, as well as
the school fees of the Second Plaintiff.
At the time of the death of the deceased, the
relationship between the First Plaintiff and the deceased was a
permanent life
partnership.
Prior to as well as during “the period of co-habitation”,
the First plaintiff and the deceased undertook to (and
did) care
for maintain and support each other and the deceased undertook to
and did maintain and support the children of the
First Plaintiff
insofar as they need such maintenance and support.
The defendant did not accept the aforesaid contentions and required
evidence to be led.
[9]
At issue and the
focus of the argument was
w
hether the deceased
whilst still alive was under a legal duty to support the plaintiff
which duty was enforceable by the plaintiff
against the defendant
and
whether that duty translate into a right of
support which is w
orthy of protection by
law and thus enforceable against third parties.
EVIDENCE
[10] The
Plaintiffs and
Ms Theresa Concalves, a friend of the deceased testified for the
plaintiffs. The defendant led no evidence and
challenged their
evidence on the basis that there was in fact no legally binding
contractual agreement entered into which could
be elevated to a duty
of support.
[
11] The First
Plaintiff, Maria Paixao, a widow at that time testified that she met
Mr Gomes at her house in 2003 and they became
good friends. Mr Gomes
told her that he was unhappy in his marriage. A love relationship
developed between them and they visited
each other. During January
2003 Mr Gomes informed her that he was leaving for Cape Town because
of problems with his family.
He returned during February/March 2003.
In October 2003 the deceased was admitted in hospital for an
operation. After his discharge
he went to live with the First
Plaintiff in Apex Benoni. When the First Plaintiff was retrenched
in March 2004 Mr Gomes told
her not to worry and undertook to look
after her and her children. Mr Gomes paid for the university and
primary school fees of
her daughter and paid for the wedding and
honeymoon of the Second Plaintiff.
[12] Mr Gomes was divorced from his wife in South
Africa on the
10
th
June 2005
. On the
14
th
July 2005
the First Plaintiff and Mr
Gomes signed a joint will nominate each other as heirs in their
respective estates and also nominated
the first plaintiff’s
children as heirs in the event of them dying simultaneously. Gomes
divorced his wife according to
the Portuguese laws in
June
2007.
[13] During cross examination she conceded that Mr
Gomes undertook to take care of her and her children when she told
him that she
was retrenched.
Furthermore
conceded that Mr Gomes bought her a house in Benoni and it was
registered in her name because Mr Gomes was not yet divorced.
[14] She further conceded that they waited Mr
Gomes to divorce first before signing the joint will. She again
conceded that the
purpose of the joint will was to protect Mr Gomes
and her contributions to the house.
[15] When asked why the statutory affidavit lodged
with the Road Accident Fund together with the claim documents and the
joint will
were silent about Gomes undertaking or promise to marry
her, she could not proffer any reasonable explanation save stating
that
Mr Gomes promised love and look after her and the children
forever.
[16]
Fatima Paixao, the
Second Plaintiff testified that she is the daughter of the First
plaintiff and was not formally adopted by the
deceased. She
officially met the deceased in 2000 when he came to attend to some
repairs at her mother’s house in Primrose,
Germiston. Mr Gomes
grew close to her mother in 2002. She knew that the deceased was
married and told her that he was unhappy
for the last 24 years.
During January 2003 the deceased left for Cape Town saying that he
wanted to get away from his family.
The deceased paid for her
wedding and honeymoon because he told her that he felt responsible
for her mom and her sister and wanted
to help them. He also paid for
the school fees or university fees of her younger sister stating that
he wanted to be part of their
family. Her evidence and that of the
First Plaintiff largely coincided and they corroborated each other in
all material respects.
[17] Ms Theresa Concalves testified that she was
introduced to the deceased by the First plaintiff and also stated
that the deceased
told her that he was unhappy and that he wanted to
marry the First Plaintiff. During the year 2003 the deceased was
hospitalised
at Flora Clinic and upon his discharge he went and lived
with the First Plaintiff and her children. When the First Plaintiff
lost her job the deceased undertook to look after her and her
children. She socialised together with the deceased and the First
Plaintiff and the Portuguese community did not have any problem with
them as a couple notwithstanding the fact that Mr Gomes was
still
married at that time. According to this witness the Portuguese
community approved their relationship.
[1
8] The facts upon
which the Plaintiffs rely on in support of their claims that the
deceased had assumed a duty of support towards
them are the
following:
1
8.1 The deceased told
the First Plaintiff that he wanted to live with her and her children
and be part of their family;
1
8.2 The deceased said
he would support her and her children insofar as they needed to be
supported and that he did not want her
to work.
18.3 The First Plaintiff had agreed to this. They
moved in together after he became ill in October 2003 and the First
Plaintiff
nursed him for 2 months until he was able to return to
work.
1
8.4 During the time
they lived together from 29
th
October 2003 until the date of his death on 02
nd
January 2008, he in discharge of his obligations:
18.4.1 Purchased for the First Plaintiff a home.
The property was registered in the First Plaintiff’s name
18.4.2 Paid all monthly living expenses for the
family
1
8.4.3 Paid all school
fees and university tuition fees
18.4.4 Paid for the wedding and honeymoon of the
First Plaintiff’s eldest daughter Fatima
18.4.5 Entered into a Joint Will with the First
Plaintiff making her and her daughter’s his sole heirs.
1
8.4.6 Divorced his wife
in both South Africa and Portuguese law so that he would be able to
legally marry the First Plaintiff and
confirmed his intention to do
so.
1
8.4.7 Took the First
Plaintiff to Portugal to meet his parents.
18.4.8 Arrangements were made with the deceased’s
sister for a wedding between the First Plaintiff and the deceased to
be
held on the 12
th
April 2008 in Portugal at the same time as the celebration of his
parent’s 50
th
wedding
anniversary.
[1
9] It was submitted on
behalf of the plaintiffs that their case did not arise by virtue
legal consequences of a marriage but based
on a contractual
relationship between the parties (that is the deceased and the First
Plaintiff) which created a legal obligation
on the deceased to
maintain and support the First Plaintiff as well as the Second
Plaintiff. Counsel further submitted that the
unchallenged or
uncontested evidence of the First Plaintiff that the deceased spoke
to her, told her he wanted to live with her
and her children and be
part of the family and did not want her to work as he would maintain
and support her and her family, as
evidence that an express binding
contract was created alternatively was expressed by the deceased and
tacitly accepted by the Plaintiff
on her own behalf and that of the
Second Plaintiff. Counsel submitted that it makes no difference
whether it was an express or
tacit or a combination of both forms
since a binding contractual agreement came into existence because the
deceased had assumed
a contractual duty of support towards the First
and Second Plaintiff.
[
20] It was submitted on
behalf of the plaintiffs that a contractual obligation whereby a
party is bound to maintain and support
has been recognised in our law
following the decision of the Constitutional Court in
Satchwell
v Republic of South Africa and Another
2002 (6) SA 1
(CC) at
paragraph 25
where Madala J said the
following:
The law attaches a
duty of support to various family relationship, for example, husband
and wife and parent and child. In a society
where the range of
family formations has widened, such a duty of support may be inferred
as a matter of fact in certain cases of
persons involved in
permanent, same sex life partnerships. Whether such a duty of
support exists or not will depend on the circumstances
of each case.
Right at the outset
, I
must state that reliance on this passage is misplaced. In the same
judgment at paragraph 16 Madala said the following which
negate the
aforesaid paragraph:
“Same sex partners cannot be lumped
together with unmarried heterosexual partners without further ado.
The latter have chosen
to stay as cohabiting partners for a variety
of reasons, which are unnecessary to traverse here, without marrying
although generally
there is no legal obstacle to their doing so. The
former cannot enter into a valid marriage.
In
my view, it is unnecessary to consider the position of heterosexual
partners in this case
(my
emphasis). As was stated by this Court in the
National
Coalition v Home Affairs 15(15)
case, the submission by the respondents that
…
gays and lesbians are free to marry in the sense that
nothing prohibits them from marrying persons of the opposite sex, is
true
only as a meaningless abstraction”
It is
quite inappropriate in these confirmation proceedings for this Court
to decide on the rights of unmarried heterosexual life
partners which
raise quite different legal and factual issues
(my emphasis). This matter was raised by the respondents in this
court for the first time in their written submissions and it
is,
therefore, not appropriate for the court to consider it.
It is therefore clear that the position of
heterosexual partners was left open and undecided by the
Constitutional Court
in the Satchwell case
supra.
[
21] Counsel further
relied on the remarks by Skweyiya J writing for the majority in
Volks
v Robertson and others
2005 (5) CLR 496(cc)
where he said the following:
“
Whilst there was a reciprocal duty of
support between married person no duty of support arises by operation
of law between unmarried
co
-habitants
and further added that to the extents that any obligation arises
between co-habitants during the subsistence of the relationship,
these arise by agreement and only to the extent of that agreement”.
It is worth pausing
at
this stage to make what may seem to be an obvious comment. It is
abundantly clear that the plaintiffs case is based on the agreement
and statement made by Skweyiya J.
[
22] Another
proposition contended for by the Plaintiffs is that, apart from the
contractual relationship, the obligation to maintain
and support is
also created by the existence of a permanent life partnership between
the parties where the relationship between
them and the circumstances
are such that the law will attach a reciprocal duty of support to
such relationship. In support of
the above proposition or argument,
it was submitted that since the deceased lived together with the
First Plaintiff and her children,
cared and supported her children,
purchased a home which was registered in the name of the Plaintiff
and paid all the monthly living
expenses for the family, this was
sufficient evidence that a permanent life partnership existed between
the deceased and the First
plaintiff.
[2
3] On behalf of the
Defendant it was submitted that the Plaintiffs failed to establish a
legally binding agreement with Gomes which
entitled them to compel
him to support. Regarding the agreement between Gomes and the First
Plaintiff to get married on the 12
th
April 2008, it was submitted that this does not give rise to a duty
of support at all. As authority for his proposition Counsel
referred me to the case of
Van
Jaarsveld vs Bridges
2010 (4) SA 558
(SCA)
.
A case dealing with
inter alia
with agreements to marry where it was held as follows:
“
I do not accept the proposition that
parties, when promising to marry each other, contemplate that a
breach of their engagement
would have financial consequences as if
they had in fact married. They assume that their marital regime will
be determined by
their wedding
(my
emphasis). An engagement is in my view more of an unenforceable
pactum de contrahendo providing deliberandi - a time to get
to know
each other better and to decide whether or not to marry finally.,
One had to distinguish in this regard between
claims for prospective losses and those for actual losses. It is not
easy to rationalise
claims for prospective loses. One of the
problems concerns the intended marital regime. It would be unusual
for parties to agree
on the marital regime at the time they promise
to marry each other. If nothing was agreed, on what assumption must
the court work?
I believe that the court cannot work on any
assumption, especially not one that the marriage would on the
probabilities have been
in community of property. And if the
agreement was to marry in community, can one party not change her or
his mind without commercial
consequences?
An arrangement to enter into an antenuptial
contract is not binding because it must be entered into notarially.
How can legal consequences
flow from the refusal to enter into the
notarial agreement? And what would the consequences be if the
parties cannot agree on
the detailed terms of the agreement?
The
matter becomes more complicated if one considers the claim for loss
of support
(my emphasis). In
divorce proceedings the award is a matter of discretion; but in a
breach of contract situation it becomes a
matter of commercial
entitlement. Imponderables abound. Prospective losses are not
capable of ascertainment, or are remote and
speculative and therefore
not proper to be adopted on the anticipated length of the marriage
and the probable orders that would
follow on divorce, such as
forfeiture and the like. I do not believe that courts should involve
themselves with speculation on
such a grand scale by permitting
claims for prospective losses”.
[24
] Counsel further
rightly submitted that no claim for loss of support exists purely
because the parties agreed to maintain or support
each other and
argued that it is wrong to suggest that because a legally binding
agreement exists between the parties, same should
be elevated to a
legally enforceable right worthy of protection against third parties.
More crisply, he contended that it is quite
clear that an agreement
to get married does not establish any legal duty of support between
the parties following the decision
of
Van
Jaarsveld
supra.
[2
5] It was further
contended by the Defendant, that the fact that they lived together
and promised to marry each other did not establish
any legal duty of
support by Mr Gomes to the Plaintiff or third parties. Turning to the
second agreement based on the evidence
that Mr Gomes promised to
“take care of"
the Plaintiffs maintain and support them as amounting to a legally
enforceable agreement to support them, it was submitted that
such a
promise cannot be equated or elevated to
animus
contrahendi
thus amounting to a legally
enforceable agreement between the parties. Counsel for the Defendant
relying on the decision of
Robinson vs
Randfontein Estate Gold Mining Company 1921 ADFH 161
submitted
that such a promise was motivated by motives of gratitude amounting
to a general promise binding on honour and conscience
rather than a
definite contractual undertaking enforceable at law. To negate any
proposition of
animus contrahendi
relating to the promise it was contended further by the Defendant
that if Gomes had reneged on the promise to support the Plaintiffs
they could not sue him in the circumstances. The promise or
undertaking made by Mr Gomes was akin to an offer made within a
family
in circumstances which negative an intention to be legally
bound and such undertaking or promises do not generate binding
contracts
because you cannot sue the estate of the deceased on the
basis of such a promise.
[2
6] The Defendant
further contended that Gomes whilst still alive was not under any
legal obligation to support the Plaintiffs and
any suggestion that a
promise made after his death could be elevated to a legally
enforceable duty is misplaced because a mere
contractual right of
support (arising from the agreement as in the present case) on its
own cannot give rise to a claim for loss
of support against third
parties. It was finally submitted that it is fallacious to contend
that once an agreement to support
exist, the plaintiffs are entitled
to claim for loss of support, because Mr Gomes whilst still alive was
not under any legal obligation
to support the plaintiffs and such
right (if any) was not worthy of protection by law and enforceable
against third parties.
[27]
In my view the
contention by the plaintiffs that the evidence of the first
plaintiff, that Mr Gomes promised to take care of her
and her
children was unchallenged, and therefore they have in discharging the
onus that there was an agreement to marry. This
contention is
misplaced. It is now settled law that uncontradicted evidence is not
necessarily acceptable or sufficient to discharge
an onus. In
Kent
(Pty) Ltd v Power
2002 (1) All SA 605
(w)
Cloete J undertook a careful review of relevant cases and principles
where the principle was endorsed and applied. In particular
he
referred to the statement made by Innes C.J. in
Stiffmen
v Kriel 1909 TS at 538
where he said
the following:
“
It does not
follow that because evidence is unconctradicted, that therefore it is
fine…..
The story told by the persons on whom the onus rest may be
improbable as not to discharge it”
The above
statement was quoted recently with approval by Theron JA in
Macdonald
v Young
2011 ZASCA 31
[2
8] The mere fact that
the parties motivated by love and support for each other made certain
promises cannot be extended to a legal
obligation either on the basis
of a contract or otherwise. The Plaintiffs have misconstrued their
position.
[29] It cannot be argued successfully that
promises made during the subsistence of a marriage relationship can
prevail over the
marital obligations of the other spouse (in this
case Gomes wife). Such promises if any amount to nothing or are
subsidiary to
marriage obligations. If breaking such promises cannot
afford a party a right of recourse against the guilty party it begs a
question
as to how can such promises be elevated to a legal
obligation.
[
30] I agree with the
defendant that a promise to maintain, care for, support cannot amount
to a legally enforceable agreement to
support the Plaintiffs. It is
unsustainable to contend that on the basis of the promise Mr Gomes
made to the Plaintiffs he could
have been sued had he stopped
providing for her and her children. Experience has taught us that
people make promises, not intending
that those promises should be
construed or elevated to
animus
contrahendi
. This case falls within
that category. I am persuaded that even if there was an agreement
(which I did not hold), a mere contractual
right to support is on its
own is not sufficient to give rise to a claim for loss of support and
such a right cannot translate
into a right of support which is worthy
of protection by law and enforceable by the third parties.
Consequently the submission
by the Plaintiff’s counsel that
once a legally binding agreement exists, it is sufficient for the
loss of support claim to
succeed is unsustainable and falls to be
rejected. I am fortified in my view by the judgment of the court in
Union v Ocean Accident and Guarantee
Corporate
1956 (1) SA 577
at 586-6 (AD)
where the following was said:
“
It is easy to
imagine the absurdities that would arise if all persons contractually
linked to the injured person could sue the careless
injurer for the
loss suffered by them. The case was put to us of the injured
building contractor who in consequence of his injury
has to
discontinue his contract, so that his employees and the building
owner and the architect and his sub-contractors and their
employees
are all put to some loss. Insurance companies would also be a wide
class of plaintiffs who could bring actions persons
issued by them
were negligently injured or, presumably, killed is the extension of
liability contended for were recognised.
In
fact it would be a rare accident that did not give occasion for a
crop of actions at the suit of persons who had made contracts
with
the injured party”
(my
emphasis).
See also
Amod
v Multilateral Vehicle Accident Fund
1994 (4) SA 1319
(SCA) at
paragraph 12.
It is evident from the
ratio of these decisions that the Plaintiff would not be able to get
off the starting blocks and successfully
establish a legally
enforceable duty of support towards them. The instructive statement
in
Ocean Accident supra
excludes a categories of such claims, which the Plaintiffs are now
seeking to advance.
[
31] In my view, it is
impermissible to elevate a promise to “take care of you”
to a legally enforceable obligation.
To the extent that Plaintiffs
seek to rely on the promise made by the deceased to them, such a
promise was not only vague, but
one akin to an offer made within a
family in circumstances which negative an intention to be legally
bound. See
Christie The law of contract
in South Africa 5
th
Edition page 30.
The promise (i.e.
retrenchment) was an offer made to render assistance whenever called
upon to do so. This is accordingly a promise
made from motives of
gratitude and it cannot ripen into a contract.
[32]
A careful analysis
of the evidence reveals that Gomes out of sympathy felt obliged to
assist with the payment of monthly expenses
including the school fees
of the children. The First Plaintiff in evidence stated that after
her retrenchment Gomes told her
not to worry and promised to take
care of her and her children. The inference that can be drawn from
such a gesture is that after
the Plaintiff and her children had
looked after him after his discharge from hospital, he felt obliged
to repay their kindness
by assisting them with the monthly expenses.
[33]
In the light of the
aforegoing I am convinced that the background circumstances
surrounding the making of the said promise negate
any intention to be
contractually bound. Again if one carefully scrutinise the evidence
of the First Plaintiff regarding the signing
of the joint will, it is
also abundantly clear that there was no
animus
contrahendi
. The joint will according
to the First Plaintiff was signed after his divorce in South Africa
and also to protect their contributions
towards the house. Another
reason militating against the plaintiffs case is that the first
plaintiff specifically stated in evidence
that the reason why the
property was not registered in the name of the deceased is because he
was not yet divorced. Gomes only
divorced according to Portuguese
law in June 2007. This again negates any further suggestion by the
Plaintiffs that the promise
to support and maintain them was made
with the necessary
animus contrahendi.
In the light thereof any suggestion that because Gomes bought a
house for the plaintiff, same should be construed as an intention
to
be contractually bound amounting to a legally enforceable obligation
is devoid of substance.
[3
4] Our law does not
recognise a dependant’s claim every time there is an agreement.
I reiterate that the mere fact that if
Mr Gomes had walked out of
the plaintiffs they could not sue him as sufficient reason to
disallow such a claim. The agreement
or promise to support does not
mean that Mr Gomes was bound to support them for the rest his life.
To sanction such a situation
would in my view be untenable. Our
courts have consistently declined to recognise such claims. See:
Amod supra at paragraph 26 and Du
Plessis v Road Accident Fund 2004(1) SA 359 SCA at paragraph 43
where
Cloete JA said the following:
“
It is not necessary for purposes of this
judgment to consider whether the dependant’s action should be
extended to unmarried
persons in a heterosexual relationship or to
any other relationship, and I expressly leave those questions open”.
[3
5] Examining the
nature of the promise or undertaking between the parties, and the
circumstances surrounding the making of the offer
or promise, it
cannot be contended that it was made
animus
contrahendi,
this is particularly so
because if the deceased had reneged on the promise no action would
lie against him for breaking such a
promise. See in this regard
Van
Jaarsveld
supra. I do not think that
the deceased by making such an undertaking or promise and repeating
it to the Second Plaintiff or the
witness, Theresa, intended it to be
equivalent to a contract. Thus I am not persuaded that the deceased
knew or at least foresaw
that by making such promises same would be
legally binding and enforceable against him and third parties.
[3
6] I need to emphasise
that in terms of common law marriage creates a physical, moral and
spiritual community of law which imposes
reciprocal duties of
co-habitation and support. The formation of such relationship is a
matter of profound importance to the parties
and indeed to their
families and it is of great social value and significant.
Skweyiya J writing for the majority in
Volks
supra quoted with approval the comments made in
Dawood
& Another v Minister of Home Affairs & Others
[2000] ZACC 8
;
2000 (3) SA 936
CC
at paragraphs 30 to 31 as follows:
“Marriage and
the family are social institutions of vital importance. Entering
into and sustaining a marriage is a matter
of intense private
significance to the parties to that marriage for they make a promise
to one another to establish and maintain
an intimate relationship for
the rest of their lives which they acknowledge obliges them to
support one another, to live together
and to be faithful to one
another.
…
The institutions of marriage and the family
are important social institutions that provide for the security,
support and companionship
of members of our society and bear an
important role in the rearing of children. The celebration of a
marriage give rise to moral
and legal obligations, particularly the
reciprocal duty of support placed upon spouses and their joint
responsibility for supporting
and raising children born of the
marriage. These legal obligations perform an important social
function”.
He further stated that:
“
Whilst there is a reciprocal duty of
support between married persons,
no
duty of support arises by operation of law in case of unmarried
cohabitants (my emphasis)”
[3
7] I accept that in
some jurisdictions various forms of registered partnership have been
introduced which treat partners as if they
were married and extend
benefits to them similar to the benefits enjoyed by married persons
but this case does not fall within
those categories. The position is
different, the plaintiffs rely on the promise or the words “take
care of you”, support,
maintain and look after you and your
children as the basis upon which the duty of support must be
extended. This alleged promise
according to the First Plaintiff was
made shortly after she was retrenched. Evidently it was made to
assure her and her children
regarding their financial obligations.
To attempt to elevate it as a legally binding agreement is not
supported by evidence and
falls to be rejected.
[38] The claim of the Second Plaintiff who was not
legally adopted by Gomes is also founded upon the same promise that
he made to
her mother, that he will look after them. In support of
her claim the argument advanced was that Gomes paid for her wedding
and
honeymoon, as a basis upon which the duty of support was created.
This argument is misplaced. In essence this would mean that
if an
employer undertakes or promises to pay and paid for the school fees
of her domestic worker’s son, he/she will be bound
by virtue of
such promises or undertaking should he stop paying. Again what the
argument for the Second Plaintiff boils down to
is that if a third
party causes the death of the employer, the domestic worker’s
son would be entitled to claim for loss
of support against the third
party. This example in my view illustrates how farfetched and absurd
the Plaintiff’s case is
See:
Union
v Ocean Accident supra.
[39] I have a serious misgivings about extending
this principle to cater for the plaintiff in the present case.
Payment of expenses
does not serve as evidence of an intention to be
contractually bound. In my view these facts alone or taken
cumulatively with
what Mr Gomes is allegedly said to have done for
the Plaintiff, cannot and does not
per
se
elevate them to a legally
enforceable right. I am fortified by the submission that if Mr
Gomes did not keep his side of the bargain,
no action would lie
against him or his estate at the instance of the plaintiffs.
[
40] I have no doubt
that extending the action of loss of support to cohabitants where one
was party to a valid marriage would be
an affront to the fabric of
our society, trespass and seriously erode the institution of
marriage. Any right thinking member of
society would not countenance
such conduct, this is particularly so because upholding such promise
as constituting good law would
not only directly affect the innocent
spouse but also impacts on the proprietary or succession rights of
the dependants of the
deceased. Excluding the First Plaintiff cannot
be construed as unfair discrimination because she was not married to
the deceased
and such a promise cannot prevail over other sound legal
considerations. The Second Plaintiff was not formally adopted by
Gomes,
it seems to me that she sought refuge in fact that Gomes paid
for her wedding and honeymoon. This case illustrates how misguided
sympathy and gratitude should not be elevated to a legal duty. Our
law does not recognise such arrangement.
[
41] The undisputed
facts and evidence reveal that the promise to marry the First
Plaintiff and take care of her and her children
were all made during
the subsistence of the marriage between the deceased and his wife.
It was made in 2004 when the First Plaintiff
was retrenched. The
deceased divorced his wife in South Africa in 2005 and the Portuguese
divorce was finalised in June 2007.
The Plaintiff only lived with
Gomes for a period of six months free from the bounds of matrimony
until he met his death in January
2008 To allow such promise to
supersede the marriage contract would amount to an oversimplification
of the issues. Marriage
is not a piece of paper. Couples enter the
agreement fully cognisant of the legal obligations which arise by
operation of law
and rightly so, expect the law to protect them
beyond the termination of marriage and even after death.
[42] I am not aware of any case and neither did
Counsel for the Plaintiffs refer me to any authority which supports
the plaintiffs’
case. The only case which may seem closer to
that of the plaintiffs is the
Verheem v
Road Accident Fund
a judgment of
Goodey
AJ
sitting in the North Gauteng High
Court delivered on the 25
th
November 2010, where he sought to distinguish an earlier judgment
of
Ledwaba J
in the matter of
Susara Meyer v Road Accident Fund
delivered on the 28
th
March 2006. The facts of these cases are clearly distinguishable
from the present matter. Drawing an inference that the First
Plaintiff and Gomes undertook reciprocal duties of support is not
stronger and is defeated by the evidence. I am not inclined
to open
the floodgates and extend the duty of support to a limitless class of
persons and cast such duty wide and impracticable.
[43
] For the
abovementioned reasons, I conclude that the plaintiffs have failed to
discharge the onus.
[4
4]
I therefore
make the following order:
44.1 The First and Second Plaintiffs’ actions are dismissed
with costs.
____________________________
RS MATHOPO
JUDGE OF THE HIGH COURT
Appearances:
For the Plaintiffs : Adv B Ancer Sc
Instructed by : Norman Berger & Partners
For the Defendant : Adv. S Budlender
Instructed by : Lindsay Keller Attorneys
Date of hearing : 19 May 2011
Date of Judgment :