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[2016] ZAGPJHC 317
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Mahapeloa v Road Accident Fund (A5054/2015) [2016] ZAGPJHC 317 (4 August 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
:
A5054/2015
Reportable:
YES
Of
interest to other judges: YES
In
the matter between -
PAULINA
MAHAPELOA Appellant
And
ROAD
ACCIDENT
FUND Respondent
JUDGMENT
Headnote
Appeal
by plaintiff whose claim for loss of support had been dismissed a
quo.
Plaintiff,
the unmarried mother of the deceased’s child claimed for loss
of support in her own right
Whether
in the circumstances such a right of support was established –
Paixao v RAF
2012 (6) SA 377
(SCA) applied
On
the facts, the plaintiff and the defendant had established a
de
facto
family relationship – the short duration of the
relationship not a conclusive factor – a promise to put in
motion lobola
negotiations a significant factor pointing towards
stability of a committed relationship - social context of the persons
involved
important to assess and weigh in determining whether, in a
given case, facts established the social conditions of a de facto
family
relationship
Sutherland
J:
Introduction
[1]
The question to be decided in this appeal is whether the plaintiff,
now appellant, Paulina Mahapeloa (Mahapeloa) has a right
in law to
claim a duty of support from Simphiwe Titus Thetyana (Thetyana).
[2]
Thetyana died as a result of a road accident on 19 December 2010. The
Road Accident Fund (RAF) acknowledges liability to compensate
persons
to whom Thetyana had such a duty. Mahapeloa and Thetyana had a child,
O., born on […] June 2010, about six months
before Thetyana’s
death. The liability of the RAF to compensate the child is not
controversial. Mahapeloa and Thetyana were
not married.
[3]
Accordingly, upon what legal basis can Mahapeloa claim a duty of
support from Thetyana?
The
Principles
[4]
In the test laid down in
Paixao v RAF
2012 (6) SA 377
(SCA)
,
that court gave recognition to the principle that two persons in a
permanent life partnership could enjoy reciprocal duties of
support,
despite the absence of a formal marriage relationship. Such a
duty of support could derive from a tacit agreement.
At [29] Cachalia
JA held:
‘
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, 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.
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.’
[5]
On behalf of Mahapeloa several contentions were advanced about what
the norms of society expect or demand from a man who fathers
a child
towards the mother of such child, and considerable emphasis was given
to the idea of Ubuntu. Such social values are indeed
relevant to the
establishment of principles or norms which inform the approach of the
courts to the incidence of the duty of support.
[6]
Upon the premises of such norms it was conceded that it cannot be
expected, at the present time at least, that a woman who bears
a
child does has a personal claim for support from the father, without
more. However, it was contended that whenever a firm relationship
between the parties exists, intended by them to be indefinite, so
that they may be described as a couple, a duty of support arises.
It seems to me that there is no real controversy about principles or
norms in this case that compels a re-evaluation of the law
as it
stands at present. In our view, the only real controversy is an
evidential one: ie, is there evidence on record that, properly
considered, ought to result in a
factual finding
that
Mahapeloa is a person whose circumstances are encapsulated within the
expanded category or class of persons to whom a duty
of support was
owed in terms of the
Paixao
test?
The
Facts
[7]
It was urged upon us by counsel for Mahapeloa that every morsel of
evidence is pertinent to the evaluation of the issue. That
approach
is correct because it is upon a holistic appreciation and not a
mechanical checklist approach that the enquiry must proceed.
That
approach involves nevertheless an assessment whether, in context, any
particular aspect of the evidence is neutral, adverse
or supportive
of the proposition sought to be advanced.
[8]
To satisfy the
Paixao
test, evidence is required of a conjugal
relationship, and an existing life partnership with characteristics
akin to a marriage
as regards a reciprocal duty of support; such a
relationship requires more than just cohabitation and sharing of
household expenses,
but rather of evidence of the partners actually
supporting and maintaining each other. A tacit agreement of
reciprocal support
may be inferred from these attributes.
[9]
The Court a quo, after considering the principles, concluded that
Mahapelo had failed on the onus to establish sufficient evidence
to
justify the conclusion that Thetyana owed her, personally, a duty of
support.
[10]
In our view, the critical facts to assess, which could point towards
such a duty of support, are as follows:
10.1. Both Thetyana and
Mahapeloa lived in female headed households. He with his mother; she
with her grandmother and her siblings.
Their fathers were absent and
insignificant in their lives. Both families live in Freedom Park,
which can be inferred to be a typical
township, and the families live
in, typical, small township houses. This aspect is a relevant
contextual factor within which to
assess other occurrences.
10.2. She was in High
School and about 19 years old when he, then 26 years old, met her. He
was then, and at all material times,
employed by Chubb Security, in
receipt of a steady income.
10.3. A conjugal
relationship existed between them: they were initially friends
which matured into a romantic relationship
which existed for about
two years. It was a monogamous relationship. The duration, although
not a factor to be mechanically measured,
was long enough to infer a
serious commitment to one another.
10.4. Although, Thetyana
had not introduced Mahapeloa to his mother before she fell pregnant,
he did so afterwards, and as things
turned out, it was Thetyana’s
mother who took Mahapeloa to hospital for the birth.
10.5. At the time
of Thetyana’s death, Mahapeloa and he were cohabiting in his
mother’s home with their baby.
This commenced a week after the
birth. She initially went home to her grandmother. During
that first week at home,
the baby’s crying disrupted the home
to the extent that Mahaploa’s grandmother complained. Upon
being told this, Thetyana
invited her to come home with him, an
arrangement that had his mother’s blessing. Their cohabitation
was ended after six
months, solely by reason his death. The duration,
although brief, nevertheless, indicates a willingness to use the
opportunity
live as a family. For how long that might have endured is
uncertain owing to several social factors, and the risk of the
personal
relationship breaking down.
10.6. Express evidence of
the extent of financial support is absent, but when directly asked,
Mahepeloa said that ‘….he
was always there for me. Every
time I had problems, he was there for me and he was actually the one
who was looking after me and
the baby’. Mahapeloa, albeit 21
years old at the time, was a schoolgirl, and had no source of
personal income. In cross examination,
she confirmed that Thetyana
supported her and the baby from his earnings. She axiomatically, was
never in a position to offer reciprocal
financial support.
10.7. About three months
after the birth of the child, Thetyana expressed a desire to marry
her, the expression of desire being
to say that he would ask a
delegation from his family to open negotiations about lobola with
Mahapeloa’s family. Although
this remark cannot be construed as
a marriage proposal, and even were it so, it could not binding, it
serves as evidence of a wish
to make the connection between them
permanent.
[1]
Thetyana did not
apparently tell his mother. The absence of a report to his mother, in
my view, is neutral.
10.8. Thetyana had no
other civil or traditional marriage relationship, nor any other
romantic partner.
10.9. After Thetyana’s
death, she continued to live with Thetyana’s mother, and her
informal acceptance into Thetyana’s
family circle has persisted
for another 6 years, as at the time of the appeal hearing.
10.10. Thetyana was on
all accounts an upright honourable, reliable man, conscious of his
responsibilities. Although the evidence
for such a character
reference might be thought to be exaggerated in some respects, this
impression is not rebutted and ought to
be accepted.
[11]
In the court
a quo,
these factors were assessed. Three factors
were identified as militating against the satisfaction of the test
for a tacit agreement
of reciprocal support. First, the
co-habitation was a fortuitous outcome owing to the disruption of the
Mahapeloa household,
second, the cohabitation was brief and third,
Thetyana failed to tell his mother about his lobola aspirations.
Pursuant thereto,
the court a quo held that it could not be found
that the existence of a permanent life partnership could be inferred.
In my view,
these factors, although pertinent, are neutral, rather
than contra-indications of a tacit agreement.
[12]
It is critical to assess the significance of social circumstances
within the context of South African social realties. Regrettably,
very many people are inhibited from prolonged family cohabitation,
and some may never experience at all. This stems from economic
migrancy, inadequate accommodation for a man and woman to live with
their offspring, and low rates of earnings, resulting in the
reliance
on the family circle, especially elders, to take on child-rearing
duties often at great distance from the parents, who
are themselves,
sometimes separated in different places whilst working to support the
family circle. Accordingly, whilst
cohabitation
per se
constitutes supportive evidence of a reciprocal commitment, absence
of cohabitation or a brief period of cohabitation, may not
afford any
inference of the opposite, without other evidence.
[13]
Because it may be reliably inferred, although no express evidence was
adduced, that the homes in which the two families live
are small, a
baby in a space shared with a grandmother and siblings seems, indeed,
a recipe for disruption. The appropriateness
of diminishing the
disruption is self-evident. The record is lean about the extent of
what passed as the grandmother’s ‘complaint’,
thus,
it cannot be implied that Mahapeloa was placed under duress to leave.
As regards Thetyana’s home, the conclusion must
be resisted to
infer from the evidence which mentions only he and his mother living
there, that they were the only inhabitants,
because on the
probabilities, it would be seldom that a township home would have so
few inhabitants. But it can be inferred that
the baby’s
disruptive presence would either be easier to tolerate or be more
comfortably accommodated than at grandmother’s
house. The
swiftness of the transfer suggests a welcoming tenor, rather than a
reluctant acceptance of a new member of the household.
In other
words, it was at least as much pull as push. It seems to me that the
move was not a mere pragmatic arrangement but a boon
to the couple.
Although of short duration, there is nothing to suggest a temporary
character to her sojourn in his home.
[14]
Owing to an absence of evidence about the protocols to be observed
about the commencement of lobola negotiations, it cannot
safely be
supposed that it was within the bounds of propriety for Thetyana to
raise the subject with his mother, at least initially,
or at this
early stage, or that a report of his intentions was overdue. There is
no evidence on record regarding the process that
should occur, or
even which customary tradition would prevail. The assumption that
lobola customs are uniform among all the bantu-speaking
peoples of
South Africa is unfounded. Moreover, it is appropriate to take
judicial notice of the fact that it is commonplace for
couples to
conclude a formal marriage, after the conclusion of lobola
negotiations, many years after their relationship has commenced,
and
long after children have been born. The failure to initiate lobola
negotiations during this period cannot give rise to any
inferences
that point towards the remark not being seriously made.
[15]
In my view, the case for a committed relationship, contemplated by
both of them, as long term and indefinite, is stronger than
was
thought to be the case by the court a
quo.
The example of
Paixao
is indeed stronger. In that matter, Mrs Paixao and Mr
Gomes’ relationship of cohabitation was longer. Both supported
one
another through retrenchment or illness. There was an express
undertaking by Gomes to marry Paixao once he had secured a divorce
from his wife. Gomes had treated Paixao’s children as his own.
In that case too, the actual cohabitation began after a relationship
had existed for a while, and was precipitated by the fortuitous event
of his illness and Paixao taking him to her home to nurse
him back to
health.
[16]
It can be no bar to success that, in a given instance, there is less
evidence than that supplied in
Paxiao
. In my view, the
conduct of Mahapeloa and Thetyana was indeed such that they behaved
towards one another in a manner akin
to spouses, they contemplate a
life as married partners, and Thetyana supported her financially and
personally. She had no means
of reciprocal financial support, and at
that stage of her motherhood, could not have been expected to do so.
Her support, in its
broadest sense, would, in my view, include her
acceptance of his family home and integration into his family.
[17]
The anxiety that such a finding may open floodgates of litigation is
no reason to find otherwise. Each case turns on its own
facts and the
proper way to deal with all litigation is to proper interrogation of
the assertions of an adversary and diligent
investigation in
preparation for a trial.
[18]
Accordingly, the appeal must succeed. The parties are in agreement
about the quantum of the claim and the terms of such order
if that be
the result. Costs should follow the result.
The
order
[19]
19.1. The appeal is
upheld.
19.2. The order of the
court a quo is set aside and substituted as follows:
19.2.1. The defendant
shall pay to the Appellant the amount of R684,109.00 together with
interest on such amount at the applicable
mora rate from 14 days of
the date of the judgment of the court a quo to date of final payment.
19.3. The respondent
shall pay the costs of the action in the court
a quo
and of
the appeal.
_______________________
Sutherland
J (with whom Van Oosten and Makume JJ concur)
_______________________
Van
Oosten J
_______________________
Makume
J
Hearing:
26 July 2016
Judgment
delivered: 4 August 2016
For
Appellant:
Adv
D. Goodenough,
Instructed
by Van der Elst Inc
For
Respondent:
Adv
M. Makeleni,
Instructed
by Nozuko Nxusani.
[1]
On the non-binding nature of a
promise to marry, see
: Van
Jaarsveld v Bridges
2010 (4) SA 558
(SCA) at [8].