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[2014] ZAGPJHC 432
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Mahapeloa v Road Accident Fund (17212/13) [2014] ZAGPJHC 432 (12 December 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NUMBER: 17212/13
DATE: 12 DECEMBER 2015
In the matter between:
PAULINA
MAHAPELOA
...................................................................................................
PLAINTIFF
And
ROAD ACCIDENT
FUND
...............................................................................................
DEFENDANT
JUDGMENT
WINDELL J:
INTRODUCTION
[1] This is a dependant’s action
against the Road Accident Fund for loss of support caused by the
death of Simphiwe Titus
Thetyana. The plaintiff alleges that she was
the deceased’s permanent life partner; that he owed her a legal
duty to support
her and that she is, therefore, entitled to lodge a
claim against the RAF. The RAF disputes that there was an agreement
between
the plaintiff and the deceased creating a legal obligation
between the parties.
THE RELEVANT FACTS
[2] Ms Paulina Mahapeloa met the
deceased in 2008 when she was still in school. She was in Grade 10
and 19 years old. The deceased
was 26 years of age. They started out
of as friends and only became lovers later. This was her first
boyfriend. She fell pregnant
with his child in August 2009 and she
left school in the middle of her Grade 11 year in 2010. She gave
birth to a girl, Olwethu,
in June 2010. Her grandmother raised her
and she was staying with her at her grandmother’s house after
the baby was born.
Her grandmother complained about the baby’s
crying and the switching on of the lights during the night to attend
to the baby.
The plaintiff told the deceased about the complaints and
after he consulted with his mother, she was invited to move in with
him
and his mother.
[3] Soon after she moved in the
deceased told her that he wanted to start lobola negotiations. She,
therefore, assumed that he wanted
to get married. She also wanted to
marry him. She loved him and he loved her. The deceased supported her
and tended to her needs
and that of the baby. Six months after she
moved in with him he passed away as a result of a motor vehicle
accident.
[4] She testified that they discussed
the future and decided that she would go back to school to obtain her
matric qualification.
She would then enrol at the nursing college to
train as a nurse. He would support her financially.
[5] Deceased mother testified that her
son was a man of his word, had good morals and was overall a good
son. She met the plaintiff
when the plaintiff’s family reported
the pregnancy to her. After the baby was born the deceased told her
that the plaintiff
experienced problems with her grandmother because
of the baby. He asked her if it would be in order if the plaintiff
and the baby
moved in with them. She gave permission and the
plaintiff moved in. The deceased has never brought a girl home
before. The deceased
never discussed his intention to marry the
plaintiff with her. She was not aware of any previous relationship
that the deceased
might have had. The plaintiff is still staying with
her four years after the deceased has passed away. She considers the
plaintiff
as her daughter.
[6] The fund adduced no rebuttal
evidence.
THE LAW
[7] The question that needs to be
answered is if the deceased in his lifetime owed the plaintiff a
legal duty of support. Whether
a duty of support exists will depend
on the circumstances of each case.
[8] The common law was extended in
Paixao v RAF
2012 (6) SA 377
(SCA) to provide for a dependant’s
action in permanent heterosexual relationships. The salient facts on
which the court found
that there was a permanent life partnership
were the following. Ms Paixao and the deceased became friends in
2002. Their relationship
grew as did the bond with her daughters. The
deceased paid for Ms Paixao daughter’s wedding as he wanted to
be part of their
family and he felt responsible for them. He moved in
with them in 2003. They executed a joint will and nominated each
other as
the sole heirs of their entire estate. He supported them
financially and paid for everything which included the university
fees
of Ms Paixao daughter. He planned to marry Ms Paixao and they
travelled to Portugal to meet his parents. They pooled their
resources
when Ms Paixao was retrenched and they were accepted by
their relatives, community and friends as a family unit. They had
been
living together for 6 years before he passed away.
[9] Satchwell v President of the
Republic of South Africa and Another
2002 (6) SA 1
(CC) dealt with
same sex relationships. The court took the following facts into
consideration in determining whether the duty of
support existed
between the parties.
“[25] …….. Whether
such a duty of support exists or not will depend on the circumstances
of each case. In the
present case the applicant and Ms Carnelley have
lived together for years in a stable and permanent relationship. They
have been
accepted and recognised as constituting a family by their
families and friends and have shared their family responsibilities.
They
have made financial provision for one another in the event of
their death. It appears probable that they have undertaken reciprocal
duties of support.”
[10] In Du Plessis v RAF
2004 (1) SA
359
(SCA), which also dealt with same sex relationships, the Court
was also tasked to consider if the plaintiff proved a legally
enforceable
duty of support on the part of the deceased. The court
quoted the matter of Satchwell supra with approval and stated the
following
in par [14]; [15] and [16]:
[14] In the present case the case for
drawing an inference that the plaintiff and the deceased undertook
reciprocal duties of support
is even stronger. The plaintiff and the
deceased would have married one another if they could have done so.
As this course was
not open to them, they went through a 'marriage'
ceremony which was as close as possible to a heterosexual marriage
ceremony. The
fact that the plaintiff and the deceased went through
such a 'marriage' ceremony and did so before numerous witnesses gives
rise
to the inference that they intended to do the best they could to
publicise to the world that they intended their relationship to
be,
and to be regarded as, similar in all respects to that of a
heterosexual married couple, ie one in which the parties would
have a
reciprocal duty of support. That having been their intention, it must
be accepted as a probability that they tacitly undertook
a reciprocal
duty of support to one another.
[15] Further support for this finding
is the fact that the plaintiff and the deceased thereafter lived
together as if they were
legally married in a stable and permanent
relationship until the deceased was killed some 11 years later; they
were accepted by
their family and friends as partners in such a
relationship; they pooled their income and shared their family
responsibilities;
each of them made a will in which the other partner
was appointed his sole heir; and when the plaintiff was medically
boarded,
the deceased expressly stated that he would support the
plaintiff financially and in fact did so until he died.
[16] In the light of the aforegoing I
am satisfied that the plaintiff proved that the deceased undertook to
support him with the
intention of being legally bound by such
undertaking. The deceased, therefore, owed the plaintiff a
contractual duty of support.
[11] In order for plaintiff’s
claim to succeed there must be proof that there was an agreement
between the parties that created
a binding legal obligation. The
agreement may be made expressly or tacitly. A tacit agreement is
inferred from the surrounding
circumstances and conduct of the
parties. It is for the court to decide whether a contract probably
came into existence. See Paixoa
supra at par [18].
[12] In order to merit recognition, a
relationship must have attained a sufficient (but indefinable) core
of stability and commitment.
The Court held in National Coalition for
Gay and Lesbian Equality v Minister of Home affairs
2000 (2) SA 1
(CC) that:
“[88] Whoever in the
administration of the Act is called upon to decide whether a same-sex
life partnership is permanent,
in the sense indicated above, will
have to do so on the totality of the facts presented. Without
purporting to provide an exhaustive
list, such facts would include
the following: the respective ages of the partners; the duration of
the partnership; whether the
partners took part in a ceremony
manifesting their intention to enter into a permanent partnership,
what the nature of that ceremony
was and who attended it; how the
partnership is viewed by the relations and friends of the partners;
whether the partners share
a common abode; whether the partners own
or lease the common abode jointly; whether and to what extent the
partners share responsibility
for living expenses and the upkeep of
the joint home; whether and to what extent one partner provides
financial support for the
other; whether and to what extent the
partners have made provision for one another in relation to medical,
pension and related
benefits; whether there is a partnership
agreement and what its contents are; and whether and to what extent
the partners have
made provision in their wills for one another. None
of these considerations is indispensable for establishing a permanent
partnership.
…..”
[13] In Volks NO v Robinson
2005 (5)
BCLR 466
(CC) the parties inter alia lived together for 16 years. The
court was satisfied that their relationship satisfied the threshold
criteria recognized in National Coalition for Gay and Lesbian
Equality v Minister of Home affairs matter. In Verheem v RAF
2012 (2)
SA 409
(GNP) the court found that an enforceable duty did exist on
the grounds that the relationship between the parties was permanent,
stable and long-term. The facts were, briefly, as follows. In this
case, the deceased and his female life partner had been living
together since 1990. Two daughters were born of this relationship,
while the plaintiff also had a daughter from a previous relationship.
The family of five lived together and the deceased raised the
plaintiff’s daughter as if it was his own child. The intended
to marry one another, but felt that they could not afford a “decent
wedding” and, as time passed, there were ever increasing
expenses, especially the costs as to the upbringing of the three
daughters who were more or less the same age. The couple were
nevertheless regarded by their family and friends as being “man
and wife”.
[14] In Mc Donald v Young
2012 (3) SA 1
(SCA) plaintiff and respondent had cohabited as man and wife for
approximately seven years. After their relationship broke down,
plaintiff unsuccessfully instituted a high court action against
respondent for an order declaring that an express joint venture
agreement had existed between them in respect of certain immovable
property, alternatively for an order that respondent pay him
maintenance. On appeal, the Supreme Court of Appeal agreed with the
high court's finding and found that no duty of support arose
by
operation of law in the case of unmarried cohabitants, any
obligations arising during the subsistence of their relationship
arising only by agreement. It further held that a tacit contract was
established by conduct and that there had to be evidence of
conduct
justifying an inference that there was consensus between them. At par
[25] the court stated the following:
“[25] It is trite that a tacit
contract is established by conduct. In order to establish a tacit
contract, the conduct of
the parties must be such that it justifies
an inference that there was consensus between them. There must be
evidence of conduct
which justifies an inference that the parties
intended to, and did, contract on the terms alleged. It is clear from
the appellant's
evidence that there was no consensus between the
parties. The appellant, on his own testimony, was uncertain about
his financial
future. He realised that he would only be entitled to
what had been agreed between the parties, hence his desire to have a
written
contract 'to fall back on'. The respondent's attitude as
testified to by the appellant, that he would leave the relationship
without
any financial benefit, is an indicator that she had not
tacitly or otherwise agreed to support the appellant. I am not
satisfied
that this court can conclude from all the relevant proven
facts and circumstances that a tacit contract — in terms of
which
the respondent undertook to financially maintain the appellant
for as long as he needed such maintenance — came into
existence.”
[15] Counsel for plaintiff contended
that as the defendant did not adduce any evidence in rebuttal and as
the evidence of the plaintiff
was not seriously disputed that the
plaintiff discharged the onus. In Paixao supra, Cachalia JA remarked
the following:
“I appreciate that it is not
always easy for defendants in the fund’s position to refute
evidence of a plaintiff dependant’s
assertion that the deceased
had undertaken a duty to support him or her. But this concern, I
think, is overstated. A plaintiff’s
assertion, without more,
that he or she was in life partnership, cannot be taken as sufficient
proof of this fact. (In this case
the fund conceded that the
relationship was a life partnership.) Proving the existence of a life
partnership entails more than
showing that the parties cohabited and
jointly contributed to the upkeep of the common home. It entails, in
my view, demonstrating
that the partnership was akin to and had
similar characteristics – particularly a reciprocal duty of
support – to a
marriage. Its existence would have to be proved
by credible evidence of a conjugal relationship in which the parties
supported
and maintained each other. The implied inference to be
drawn from these proven facts must be that the parties, in the
absence of
an express agreement, agreed tacitly that their
cohabitation included assuming reciprocal commitments – ie a
duty to support
– to each other. (my emphasis). Courts
frequently undertake this exercise without much difficulty – as
this and other
cases such as Amod, Satchwell and Du Plessis
demonstrate. Life partnerships therefore do not present exceptional
evidential difficulties
for defendants.
CONCLUSION
[16] The plaintiff was still in school
when she fell pregnant. The deceased was her first boyfriend. Because
of the pregnancy she
had to leave school but intended to return and
finish her matric qualification after the baby was born. She also
wanted to further
her education and was planning on going to nursing
school to become a nurse. After the baby was born she was still
living with
her grandmother. There is no evidence to suggest that she
would have moved in with the deceased if it was not for the
complaints
of her grandmother. The parties were both very young and
were living together for only 6 months when the deceased passed away.
[17] The deceased only introduced the
plaintiff to his mother after she fell pregnant. The mother of the
deceased was not even aware
of her son’s intention to start
lobola negotiations. One would have expected the deceased to tell his
mother of his intentions
to marry the plaintiff if it was their
intention to be permanent life partners.
[18] In the Volks matter it was
observed at par [120], that some people may be living together with
no intention of permanence at
all, others may be living together
because there is a legal or religious bar to their marriage, others
may be living together on
the firm and joint understanding that they
do not wish their relationship to attract legal consequences, and
still others may be
living together with the firm and shared
intention of being permanent life partners.
[19] It is common cause that there was
not an express agreement between the plaintiff and the deceased. The
plaintiff relies on
a tacit agreement. The conduct of the parties
must be such that it justifies an inference that there was consensus
between them.
There are simply not enough facts to prove the
existence of a permanent life partnership. I am not satisfied that
the plaintiff
discharged the onus in proving a legally enforceable
duty of support on the part of the deceased.
[20] In the result the following order
is made:
1. The claim is dismissed with costs.
L WINDELL
JUDGE OF THE HIGH COURT
Attorney for plaintiff: Van der Elst
Inc.
Counsel for plaintiff: Adv. D.
Goodenough
Attorney for defendant: Kekana
Hlatswayo Radebe Inc.
Counsel for respondent: Adv.
Makhaleni
Date matter heard: 21 November 2014
Judgment date: 12 December 2014