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[2021] ZAGPJHC 442
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L.D.P v Road Accident Fund (2017/6462) [2021] ZAGPJHC 442 (23 February 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
2017/6462
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
23/2/2021
In
the matter between:
L[…]
D[…]
P[…]
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
WINDELL
J:
INTRODUCTION
[1]
This is a dependant’s action against the Road Accident Fund
(“RAF”) for loss of support caused by the death
of S[…]
A[…] R[…] (“hereinafter referred to as “the
deceased” or “S[…]”).
The plaintiff alleges
that she was the deceased’s permanent life partner and that he
owed her a legal duty to support; The
RAF disputes that there was an
agreement between the plaintiff and the deceased creating a legal
obligation between the parties.
[2]
The plaintiff is the biological mother and natural guardian of C[…]
G[…] R[…] (“C[…]”)
who was born from
the relationship between the plaintiff and the deceased. The
plaintiff therefore institutes the claim for damages
in her personal
and representative capacity.
THE
DISPUTE
[3]
On 30 July 2020, this court granted an order wherein the following
was recorded:
“
PART A:
2.2. It is recorded
that an agreement has been reached between Mr. Fannie Kola,
representative of the Road Accident Fund, herein
after referred to as
the Defendant, and Mr. Henk Schouten, Counsel for the Plaintiff, and
Mr. Stephen Flowers, Plaintiff’s
attorney of record....
2.3. The Defendant
admits the Deceased's duty of support towards the minor child, C[…]
G[…] R[…] ('the minor
child), and thereby concedes the
Plaintiff's claim in her representative capacity on behalf of the
minor child.
2.4. The parties agree
to the following nett figures, as per the Actuarial Calculation by
Mr. GW Jacobson (Defendant's Actuary),
dated the 29th of July 2020:
2.4.1. “Should
it be found that there existed a legal duty of support between the
deceased and the Plaintiff in her personal
capacity:
2.4.1.1. The
Plaintiff's claim in her personal capacity amounts to R 5 478 588
(Five Million, Four Hundred and Seventy-Eight
Thousand, Five Hundred
and Eighty-Eight Rand only);
2.4.1.2. The
Plaintiff's claim in her representative capacity amounts to R 1 200
864 (One Million, Two Hundred Thousand, Eight
Hundred and Sixty-Four
Rand only).
2.4.2. Alternatively,
should it be found that no such legal duty existed, the Plaintiffs
claim in her representative capacity amounts
to R4 149 803.00 (Four
Million One Hundred and Forty-Nine Thousand Eight Hundred and Three
Rand only).”
2.5. The only issue
which remains in dispute is whether a duty of support existed between
the Deceased and the Plaintiff ('the issue”).”
[3] Both the plaintiff
and the RAF adduced evidence. The plaintiff testified and called six
witnesses: Mr Taylor; Archbishop Gill;
Mr Parsad; Ms H[…];
Mrs D[…] P[…] and Mr D[…] P[…]. The
RAF called two witnesses,
S[…]’s father, Mr A[…]
R[…] and his sister, Ms B[…] R[…]. What follows
is a summary of
their evidence.
THE
RELEVANT FACTS
[4]
The plaintiff met S[…] in 2005. Three months later they
started a romantic relationship. In 2006, S[…] bought
his
first house, and in January 2007 the plaintiff moved in with him.
[5]
S[…] was a very traditional man. A man of integrity and
impeccable manners. S[…] paid for all the household expense,
which included the bond repayments, the utilities account and the
internet. The plaintiff managed the household, cooked and packed
lunch for S[…]. They discussed and planned their future. They
both wanted to have kids someday..
[6]
Both S[…] and the plaintiff worked in IT, but for different
companies. In 2010, they decided to “put their eggs
in one
basket” and the plaintiff joined S[…] in his newly
established business, Bay Drive Trading 77 (Pty) Ltd trading
as
Konica Minolta Central.
[7]
In February 2011, the plaintiff and S[…] attended a concert of
the popular rock band U2. During the concert, S[…]
went down
on one knee and proposed. The plaintiff said yes. In March 2011 S[…]
went on a “boys weekend” to Mpumalanga,
and whilst there
he took a detour and visited the plaintiff’s parents to ask
their permission to marry the plaintiff. They
gave him their
blessing. Sometime during 2011, the plaintiff fell pregnant. The
couple was delighted. Soon after S[…]
put his house on
the market and bought a bigger house with a garden to make room for
the baby. They moved in and set up the
baby room.
[8]
The plaintiff’s birthday is in August. In August 2100, on her
birthday, S[…] gave her a diamond and asked her to
marry him
and “change her surname”. The plaintiff said yes
unequivocally. S[…] took her to a place by
the name of
the “Diamond Exchange” to choose a ring for the diamond.
The diamond was quite expensive and S[…]
decided to make two
identical rings. One with the diamond and the other with a cubic
zirconia. S[…] subsequently also changed
his relationship
status on Facebook to “engaged”.
[9]
The baby shower was in November 2011. It was attended by both S[…]
and the plaintiff’s families. The plaintiff
was wearing her
ring and everyone was aware of the engagement, including S[…]’s
parents and sister.
[10]
A photo of the plaintiff and S[…] sister was taken on the day
of the baby shower and presented at court. The photo clearly
shows
the plaintiff wearing a diamond ring on her ring finger. The
plaintiff also displayed the ring on her hand to the court.
[11]
The plaintiff stopped working at the end of 2011. The baby, a boy
named C[…], was born on 9 January 2012. S[…]
bought the
plaintiff a new luxury motor vehicle as he was concerned about the
plaintiff’s and C[…]’s safety.
The plaintiff did
not go back to work and stayed home to look after the baby. The
plaintiff as well as C[…] were registered
on S[…]’s
medical aid as dependants.
[12]
On 13 August 2012 S[…] sent an email to “Cape Stay”
to book accommodation online for him, the plaintiff
and Connor. In
the email, he referred to the plaintiff as his spouse. Tragically,
three days later S[…] was involved in
a car accident and
passed away.
[13]
Archbishop Gill testified that he knew S[…] very well. They
first met through business in 2007 (S[…] put together
a
proposal for the school Archbishop Gill was employed at) and a
friendship developed over the years. They spoke “
a lot
”
and about “
many things
” including the baptism of
C[…] and formalizing S[…]’s relationship with the
plaintiff. On the day of
S[…]’s passing, Archbishop Gill
had sent S[…] an email to arrange a date to discuss the
marriage. He
testified that S[…] referred to the
plaintiff as his fiancé, that they had a stable relationship
and that S[…]
was highly affectionate towards the plaintiff.
[14]
Mr Taylor was S[….]’s colleague and friend. He gave the
eulogy at S[…]’s funeral. He testified that
he met S[…]
in 2009 and that they soon became friends. He stated that S[…]
got engaged to the plaintiff in the same
year he (Taylor) got
married. They shared a passion for motor bikes and spoke on the phone
almost daily. He testified that
S[…] was a “
traditional
guy”
and was the breadwinner, whilst the plaintiff
maintained the household.
[15]
Mr Parsad testified that he knew S[…] and the plaintiff very
well. He joined the trip to Mpumalanga during which S[…]
asked
the plaintiff’s parents for her hand in marriage. He was also
involved in the buying of the diamond for the plaintiff.
His
involvement included speaking to to people in the diamond industry
and phoning around in getting the perfect stone. He was
both S[…]’s
colleague and friend and stated that the couple was engaged and very
much in love.
[16]
Mrs A[…] D[…] P[…] and Mr D[…] D[…]
P[…] are the plaintiff’s parents. They
testified about
several things: the time S[…] visited them to get their
blessing for the marriage; the engagement; the engagement
ring; the
baby shower and the nature of the relationship between S[…]
and the plaintiff. Mrs D[…] P[…]
stayed with the
couple for a period of two weeks after C[…] was born and
thereafter at least one week every month. She observed
how they
“
operated”
. They were a family unit and S[…]
supported the plaintiff and C[…]. The plaintiff was a stay at
home mum and S[…]
was responsible for almost all of the
household expenses. Mrs Hepburn, the plaintiff’s aunt,
corroborated their evidence
in all material aspects.
[17]
S[…]’s father, Mr A[…] R[…], testified on
behalf of the RAF. He stated that he was not aware of
the engagement
between the plaintiff and S[…]. He was also not aware
that S[…] asked the plaintiff’s
parents’
permission to marry the plaintiff. He stated that he never saw the
engagement ring and was not aware that Stephen
had conversations with
Archbishop Gill about marrying the plaintiff. He however
acknowledged that the plaintiff and Stephen
had been in a
“
co-habiting relationship
” for a long time. He
testified that S[…] always treated the plaintiff with
respect and “
did what was expected of him”
.
[18]
Ms B[…] R[…] also testified. She is S[…]’s
sister and worked alongside the plaintiff and S[…]
at S[…]’s
business. She had a close relationship with her brother and was not
aware of the engagement. She was shown
the photo of herself and the
plaintiff, taken on the day of the baby shower, wherein it can
clearly be seen that the plaintiff
was wearing an engagement ring.
She was unable to give any meaningful explanation as to why she did
not notice the ring.
THE
LAW
[19]
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.
[20]
The common law was extended in
Paixao
v RAF
[1]
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 sketched out in the judgment by
Cachalia JA on behalf of the court. Ms Paixao and the
deceased became
friends in 2002. Their relationship grew as did the bond between the
deceased and 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’s
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 were
accepted by their relatives, community
and friends as a family unit. They had been living together for 6
years before he passed
away. The learned Judge remarked as follows:
“
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.
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.”
[21]
The matter of
Satchwell
v President of the Republic of South Africa and
Another
[2]
,
referred
to in
Paxio
supra,
dealt
with same sex relationships. The Constitutional 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.”
[22]
In order for the 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.
[3]
It is for the court to decide whether a contract probably came into
existence.
[4]
[23]
In order to merit recognition, a relationship must have attained a
sufficient (but indefinable) core of stability and commitment.
The
Constitutional Court held in
National
Coalition for Gay and Lesbian Equality v Minister of Home affairs
[5]
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.
…..”
[24] In
Volks
NO v Robinson
[6]
,
the
court observed 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.
[7]
The parties in
Volks
supra
,
inter
alia,
lived together for 16 years. The court was satisfied that the
relationship satisfied the threshold criteria recognized in
National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs
matter.
CONCLUSION
[23]
It is clear from the evidence that the plaintiff and S[…]
were in a long standing permanent life partnership. They were
factually
engaged to be married at the time of S[…]’s
untimely passing. They lived together as husband and wife, although
not
yet married. They also had their ups and down (like most
couples).
On all the
relevant proven facts and circumstances, I am satisfied that they
clearly had an expressed and/ or tacit agreement of mutual support to
one another.
[24]
I am satisfied that the plaintiff discharged the onus in proving a
legally enforceable duty of
support on the part of the deceased.
[25]
In the result the following order is made:
1.
The Draft Order marked “X” is made an order of court
L.
WINDELL
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be………………..
APPEARANCES
Attorneys
for the plaintiff:
Munro,
Flowers & Vermaak
Counsel
for the plaintiff:
Advocate
H. Schouten
Representative
for the defendant:
Mr
Fannie Kola
Date
of hearing:
26
January 2021 & 27 January 2021
Date
of judgment:
[1]
2012 (6) SA 377 (SCA)
[2]
2002
(6) SA 1
(CC)
[3]
Mc
Donald v Young
2012
(3) SA 1 (SCA).
[4]
See
Paixoa
supra
at par [18].
[5]
2000 (2) SA 1 (CC)
[6]
2005 (5) BCLR 466
(CC)
[7]
At par [120]