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[2010] ZAGPPHC 282
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Verheem v Road Accident Fund (19026/08) [2010] ZAGPPHC 282; 2012 (2) SA 409 (GNP) (25 November 2010)

REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 19026/08
DATE:25/11/2010
In
the matter between:
BELINDA
VERHEEM
............................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
.....................................................
Defendant
JUDGMENT
GOODEYAJ:
[1]
INTRODUCTION:
(1.1)
This is a RAF matter.
(1.2)
The essence of the matter is that the Plaintiff claims compensation
from the Defendant for loss of support arising from the
death of her
partner whose death was caused by the negligence of an insured
driver. [The Defendant conceded that there was negligence
on the part
of the insured driver],
(1.3)
The parties (by agreement) requested an order in terms of Rule 33(4)
in terms whereof the only issue to be dealt with is the
locus standi
of the Plaintiff to claim an amount for loss of support from the
Defendant. I made such an order.
(1.4)
The Plaintiffs particulars of claim read (par 7 thereof) as follows:
“
7.1
At all relevant times and at the time of his death the deceased:
(a)
and the Plaintiff were partners in a lengthy permanent monogamous
union worthy of protection by the law, as though they were
husband
and wife, living together as a family with their said children;
(b)
and the Plaintiff undertook reciprocal duties of support in respect
of each other, which are worthy of protection by way of
an action for
loss of support;
(c)
supported and maintain the Plaintiff and, but for his untimely death,
would have continued to do so for the remainder of her
life,
alternatively their joint life expectancy;
(d)
was under a legally enforceable duty of support towards the
Plaintiff, whom the deceased had undertaken to support with the

intention of being legally bound by such undertaking;
(e)
was a partner with the Plaintiff in a permanent life partnership;
(f)
was not unwilling but amenable to conclude a formal marital
relationship with the Plaintiff.
7.2
In the light of the aforegoing the culpable or negligent killing of
the deceased constituted a wrongful act as against the
Plaintiff”.
[2] BACKGROUND / RELEVANT FACTS:
(2.1)
Only the Plaintiff testified;
(2.2)
At the end of the day, the following were undisputed facts:
2.2.1
On 1 January 1990 the Plaintiff gave birth to a daughter Janice from
a previous relationship which has ended prior to the
birth of the
said baby girl;
2.2.2
Shortly thereafter (early 1990) the Plaintiff met the deceased;
2.2.3
In the second half of 1990 the parties started living together as man
and wife and did so until the deceased passed away on
23 July 2003;
2.2.4
In ±June 1992 their first daughter was born and in ±1994
the second;
2.2.5
The deceased brought up Janice (her daughter) together with his own
daughters as his own and never differentiated between
them;
2.2.6
She never worked and/or was never employed, but the
arrangement/agreement was (with the deceased) that they would get
married,
she would look after the household and the three daughters
and he would be (and was) the sole breadwinner;
2.2.7
The deceased was a boilermaker and later turned truck driver so as to
earn a little bit more money. He was on long trips due
to his
employment as a truck driver, and she, according to the agreement
between them, looked after the household and the upbringing
of the
three daughters. Because of this agreement she had with the deceased,
she never ever tried to seek employment as her part
of the agreement
was looking after the household and the upbringing of the children;
2.2.8
She and her father’s relationship was initially (when she first
fell pregnant) not good and he didn’t want to
pay for a
wedding;
2.2.9
She and the deceased didn’t have enough money for a decent
wedding and as the years have gone by, there were ever increasing

expenses, especially the costs as to the upbringing of the three
daughters who were more or less the same age;
2.2.10
Everybody considered them (Plaintiff and deceased) as man and wife
and so did her and his relatives and in fact everybody
else;
2.2.11
She had a contract with the deceased in the sense that she would
looked after the household and he would be (and was) the
sole
breadwinner and she was completely dependent upon him for support;
2.2.12
She persist that she was (for more than 13 years) totally dependent
upon him as sole breadwinner as aforesaid.
(2.3)
The Plaintiff alleges that she is a “third party” who
should be placed in the same position as a widow who was
legally
married to the deceased. (She contends that she is entitled to be
compensated for a loss of support). Most importantly,
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 the
children) and that this right is legally enforceable and worthy of
protection. Further confirmation is also to be
found in the fact that
he brought up her daughter (from a previous relationship) as his own
since birth and kept on doing so which
is clear confirmation (so the
argument goes) of the fact that they were a close knit and stable
family.
(2.4)
The Defendant on the other hand, contends that the Plaintiff is not
in law, entitled to claim for loss of support since the
Plaintiff and
the deceased were not legally married to each other.
[3]
THE LAW:
(3.1)
Road Accident Fund Act 56 of 1996
“
Liability
of Fund and agents
(a)
subject to this Act, in the case of a claim for compensation under
this section arising from the driving of a motor vehicle
where the
identity of the owner or the driver thereof has been established;
(b)
subject to any regulation made under
section 26
, in the case of a
claim for compensation under this section arising from the driving of
a motor vehicle where the identity of neither
the owner nor the
driver thereof has been established the Fund shall, be obliged to
compensate any person (the third party) for
any loss or damage which
the third party has suffered as a result of any bodily injury to
himself or herself or the death of or
any bodily injury to any other
person, caused by or arising from the driving of a motor vehicle by
any person at any place within
the Republic, if the injury or death
is due to the negligence or other wrongful act of the driver or of
the owner
of
the motor vehicle or of his or her employee in the performance of the
employee’s duties as employee. ’’
3.1.2
Pertaining to
section 17(1)
(Act
56
of 1996) the following is said by
Ledwaba J:
“
Section
17(1)
of the
Road Accident Fund Act 56 of 1996
recognises a claim of
third parties who are entitled to claim against the fund who have
suffered damages as a result of the death
to a third parties
breadwinner. Te people who qualify as ‘a third party’
should be defined as set out in the Act and
they refer to persons who
are legally dependant on the deceased for maintenance."
(My
emphasis)
[Susara
Meyer v RAF (unreported) case no. 29950/2004 NGH - judgment of the
28/03/2006 – I will deal with this judgment more
fully
hereinafter]
3.1.3
In paragraph [7] of his judgment LEDWABA J says the following:
[7]
The Plaintiff’s counsel submitted that the validity of the
Plaintiff’s claim for loss of support should satisfy
the
following test:
(i)
The Plaintiff must establish that the deceased had a duty to support
the Plaintiff;
(ii)
It has to be a legally enforceable duty;
(Hi)
The right of the Plaintiff to such support
has
to be worthy of protection by the law;
(iv)
This element has to be determined by the criterion of boni mores”.
(My
emphasis)
[See:
Surara Meyer referred to above]
3.1.4
It is necessary to analyse the case law in the next sub paragraphs.
(3.2)
ZIMNAT INSURANCE CO LTD v CHAWANDA 1991(2) SA 825 (ZS):
3.2.1
The headnote reads as follows:
“
The
widow of an unregistered customary union whose husband has been
killed by an act of negligence, or other unlawful act, has a
claim in
law for damages for loss of support against the person who caused the
death or who employed the person who caused it or
who had insured him
against such contingency. ”
3.2.2
Pages 832 and 833 read as follows:
“
The
opportunity to play a meaningful and constructive role in developing
and moulding the law to make it accord with the interests
of the
country may present itself where a Judge is concerned with the
application of the common law, even though there is a spate
of
judicial precedents which obstructs the taking of such a course. If
Judges hold to their precedents too closely, they may well
sacrifice
the fundamental principles of justice and fairness for which they
stand. In a famous passage Lord Atkin, referring to
judicial
precedents, said:
‘
When
these ghosts of the past stand in the path of justice clanking their
medieval chains the proper course is for the Judge to
pass through
them undeterred.
(3.3) SANTAM BANK v HENERY 1999(3) SA
421 (SCA)
The
gist of this matter is that an action for loss of support was
extended so as to cover a divorced woman to claim for damages
for
loss of support arising out of the negligent killing of her former
husband.
(3.4) AMOD v MULTILATERAL MOTOR
VEHICLE ACCIDENT FUND (COMMISSION FOR GENDER EQUALITY INTERVENING)
1999(4) SA 1319 (SCA)
3.4.1
A claim for loss of support arising out of a marriage in terms of
Islamic law was recognised.
3.4.2
Par [20] reads of follows:
“
[.20]
The crucial question which therefore needs to be applied is whether
or not the legal right which the appellant had to support
from the
deceased during the subsistence of the marriage, is a right which, in
the circumstances disclosed by the present case,
deserves recognition
and protection by the law for the purposes of the hearing before us
it was common cause that the Islamic marriage
between the appellant
and the deceased was a de facto monogamous marriage; that it was
contracted according to the tenets of a
major religion; and that it
involved ‘a very public ceremony, special formalities and
onerous obligations for both parents
in terms of the relevant rules
of Islamic law applicable".
(3.5)
“[15] In the case of NATIONAL COALITION FOR GAY and LESBIAN
EQUALITY v MINISTER OF HOME AFFAIRS 2000(2) SA (1) CC,
another form
of conjugal same-sex relationship was recognised. It is important to
emphasise that the case dealt with partners in
permanent same-sex
life relationship. On page 35, in paragraph [60] at 35E-G, the court
clearly stated the following:
[60]
It is important to indicate and emphasise the precise ambit of the
above holding. The Court is in the present case concerned
only with
partners in permanent same-sex life partnerships. The position of
unmarried partners in permanent heterosexual partnerships
and their
omission from the provisions of
section 25(5)
was never an issue in
the case nor was my argument addressed thereon. The Court does not
reach the latter issue in this case and
I express no view thereon,
leaving it completely open. Nor does the Court in this case reach the
issue of whether, or to what extent,
the law ought to give formal
institutional recognition to same-sex partnerships and this issue is
similarly left open". (My
emphasis)
See:
Susara Meyer v RAF (above) at par [15]
(3.6)
DU PLESSIS v ROAD ACCIDENT FUND 200491) SA 359 (SCA)
3.6.1
In this matter the dependent’s action was extended to a partner
in a same-sex permanent life relationship. [The partner
was killed in
a motor vehicle accident and a claim for damages (loss of support)
was allowed against the Defendant (RAF) by the
surviving partner],
3.6.2
The Court (par 43 of the judgment) left open the question pertaining
to an action for loss of support in respect of unmarried
persons in a
heterosexual relationship
3.6.3
The headnote in this matter inter alia reads as follows:
“
The
plaintiff and the deceased had been partners in a same-sex union. The
deceased was killed in a motor vehicle accident in September
1999.
The primary question in the present appeal was whether the plaintiff
should be entitled to claim damages for loss of support
from the
defendant in terms of the
Road Accident Fund Act 56 of 1996
. A
subsidiary question was whether the plaintiff had shown his
entitlement to claim funeral expenses incurred in burying the
deceased.
The Court a quo dismissed both of the plaintiff's claims.
The
plaintiff and the deceased had lived together continuously since
March 1988. In that year they had gone through a ceremony which
was
as close as possible to a marriage ceremony in the presence of
numerous witnesses, conducted by a person who was a marriage
officer
(who did not act in that capacity, but the plaintiff and the deceased
would have married had the law permitted it). The
union between the
plaintiff and the deceased had been stable. They had been
acknowledged by family and friends as a couple. The
plaintiff had
been medically boarded in September 1994. Before then he had earned
less than the deceased. Thereafter he had received
a disability
pension which was not sufficient for his needs and the deceased had
continued to earn a salary which was considerably
in excess of the
plaintiff's pension. They had continued to pool their income. The
deceased had to a large extent maintained the
plaintiff financially
for the five years after the plaintiff was boarded and before the
deceased was killed. The deceased had also
promised to continue to
support the plaintiff after he was boarded. The plaintiff and the
deceased had made wills, each bequeathing
his estate to the other.
The parties agreed that the defendant was liable under the Act to pay
the plaintiff 75% of such legally
recoverable damages as the
plaintiff might prove he has suffered arising out of the death of the
deceased. In terms of
s 17
of the Act the defendant or an agent was,
subject to the provisions of the Act, obliged to compensate any
person for any loss or
damage which that person has suffered as a
result of the death of any other person caused by or arising from the
driving of a motor
vehicle if the death was due to the negligence of
the driver or owner of the vehicle.
Section 19
(a) of the Act
exempted the defendant from liability for loss or damage for which
neither the driver nor the owner of the motor
vehicle which caused
the deceased’s death would have been liable at common law. The
defendant's case was that the plaintiff's
claim for loss of support
was not maintainable in law and that the plaintiff had not
established a right to claim any funeral costs
expended in burying
the deceased. The plaintiff's submissions fell short of requesting
the Court to extend the common-law definition
of marriage which
required that the union be between a man and a woman, to persons of
the same sex. His submissions were rather
directed to the narrower
question whether the common- law action for damages for loss of
support should be developed to include
a person such as the
plaintiff. It was trite that a widow who was legally married to the
deceased was entitled to bring an action
for the loss of support for
the unlawful killing of her husband. It was the plaintiff's case that
the common law should be developed
to place him in the same position.
”
(My
emphasis)
3.6.4
The Court, firstly dealing with the duty to support, found that there
was such a duty on the part of the deceased. In this
regard the Court
inter alia says the following:
(i)
Par [12]:
“
[12]
A marriage gives rise to a reciprocal duty of support on the part of
the parties to that marriage. However, the law currently
only
recognises marriages that are conjugal relationships between C people
of the opposite sex. There is, nevertheless, in the
words of
Ackermann J in National Coalition for Gay and Lesbian Equality and
Others v Minister of Home Affairs and Others
2000 (2) SA 1
fCC) in
para [35] 'another form of life partnership which is different from
marriage as recognised by law. This form of life partnership
is
represented by a conjugal relationship between two people of the same
sex’.”
(ii)
Par [15]:
“
[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’’ (My
emphasis)
3.6.5
The next question the Court decided was whether the right of the
Plaintiff to be supported was worthy of protection. In this
regard
the following is inter alia said in par [17]:
(i)
“[17] The next question to be decided is whether the right of
the plaintiff to such support is worthy of protection by
way of an
action against the defendant, or, put differently, whether the
killing of E the deceased should be considered to have
been a
wrongful act as against the plaintiff. In Amod, relying on Henery, it
was said that the question had to be answered in the
light of
prevailing boni mores . In Knop v Johannesburg City Council 1995
(2)
SA 1 (A) at 27G - I Botha JA adopted the following formulation of the
nature of the enquiry:
'In
short, recognition of a duty of care is the outcome of a value
judgment, that the plaintiff's invaded interest is deemed worthy
of
legal protection against negligent interference by conduct of the
kind alleged against the defendant. In the decision whether
or not
there is a duty, many factors interplay: the hand of history, our
ideas of morals and justice, the convenience of administering
the
rule and G our social ideas as to where the loss should fall. Hence,
the incidence and extent of duties are liable to adjustment
in the
light of the constant shifts and changes in community attitudes’."
(My emphasis)
(ii)
In par [19] the following is said:
“
[19]
The constitutional values relevant to the extension of the common law
sought by the plaintiff are those contained in ss 9 and
10 of the
Constitution of the Republic of South Africa Act 108 of 1996 (the
Constitution), namely, equality and human dignity.”
(My
emphasis)
3.6.6
The importance as to the right to equality is confirmed - see par
[20].
3.6.7
As to the right to dignity the following is said in par
[21]:
“
[21]
The right to dignity is also important, as emphasised in Dawood,
Shalabi, Thomas and Others v Minister of Home Affairs [2000(3)
SA 936
(CC)] in para [35]:
'The
value of dignity in our Constitutional framework cannot therefore be
doubted. The Constitution asserts dignity to contradict
our past in
which human dignity for black South Africans was routinely and
cruelly denied. It asserts it too I to inform the future,
to invest
in our democracy respect for the intrinsic worth of all human beings.
A Human dignity therefore informs constitutional
adjudication and
interpretation at a range of levels. It is a value that informs the
interpretation of many, possibly all, other
rights - Section 10,
however, makes it plain that dignity is not only a value fundamental
to our Constitution, it is a justiciable
and enforceable right that
must be respected and protected'. ”
(3.7) KHAN v KHAN 2005(2) SA 272 (T)
3.7.1
In this matter I found that there is a duty on a husband to maintain
his ex-wife to whom he was married according to Muslim
rites in a
situation where marriage is in fact polygamous.
3.7.2 The headnote reads inter alia as
follows:
“
The
questions for consideration by the Court concerned whether there was
a legal duty on the appellant, by virtue of the provisions
of
s 2(1)
of the
Maintenance Act 99 of 1998
, to maintain the respondent, to
whom he had been married by Muslim rites, accepting that the marriage
was in fact a polygamous
one.
Held,
that the preamble to the
Maintenance Act emphasised
the establishment
of a fair and equitable maintenance system premised on the
fundamental rights afforded in the Constitution of
the Republic of
South Africa Act 108 of 1996. (Paragraph [9.4] at 279D/E.) Held,
further, that the common-law duty of support was
a flexible concept
developed and extended over time by the Courts to cover a wide range
of relationships. The questions which Courts
have considered in
determining whether a particular relationship gave rise to a duty of
support included whether the complainant
required financial aid and
whether the relationship between the parties created a duty to
maintain. The times and society in which
we live also needed to be
considered. (Paragraphs [10.1] and [10.2] at 280D and 280F - G.)
Held,
further, that despite the lack of a formal marriage, the
Constitutional Court had in Satchwell v President of the Republic
of
South Africa and Another
[2002] ZACC 18
;
2002 (6) SA 1
(CC)
(2002 (9) BCLR 986)
found
that duties of reciprocal support could be inferred from, inter alia,
how others perceived the couple, whether family responsibilities
were
shared, and whether the couple had provided for one another upon
death. The purpose of family law in general was to protect
vulnerable
family members and to ensure fairness in disputes that arose at the
end of relationships. (Paragraphs [10.4] and [10.5]
at 281A - B/C.)"
(My
emphasis)
3.7.3
Par [9] inter alia reads as follows:
(i)
“
9.5
The Act invokes the Constitution in its preamble. With regard to
interpreting statutes in light of the Constitution, cognisance
ought
to be taken of the words of Langa DP as stated in the decision of
Investigating Directorate: Serious Economic Offences and
Others v
Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor
Distributors (Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA
545
(CC)
(2000 (10) BCLR 1079)
in paras [21] and [22]:
'This
means that all statutes must be interpreted through the prism of the
Bill of Rights. All law-making authority must be exercised
in
accordance with the Constitution. The Constitution is located in a
history which involves a transition from a society based
on division,
injustice and exclusion from the democratic process to one which
respects the dignity of all citizens, and includes
all in the process
of governance. As such, the process of interpreting the Constitution
must recognise the context in which we
find ourselves and the
Constitution's goal of a society based on democratic values, social
justice and fundamental human rights.
The spirit of transition and
transformation characterises the constitutional enterprise as a
whole.
.
. . The Constitution requires that judicial officers read
legislation, where possible, in ways which give effect to its
fundamental
values. Consistently with this, when the
constitutionality of legislation is in issue, they are under a duty
to examine the objects
and purport of an Act and to read the
provisions of the legislation, insofar as is possible, in conformity
with the Constitution.
(My
emphasis)
(ii)
“9.6 In the Daniels decision [2004(5) SA 331 (CC)] Ngcobo J
made the following comment with regard to the proper approach
to
legislative interpretation: 'Section 39(2) of the Constitution
contains an injunction on the interpretation of legislation.
It
requires courts when interpreting any legislation "to promote
the spirit, purport and objects of the Bill of Rights".

Consistent with this interpretative injunction, where possible,
legislation must be read in a manner that gives effect to the values

of our constitutional democracy. These values include human dignity,
equality and freedom. Thus where legislation is capable of
more than
one plausible construction, the one which brings the legislation
within constitutional bounds must be preferred.
(Hi)
9.7 “Prior to the Daniels decision Yacoob J, in the decision of
De Beer NO v North-Central Local Council and South-Central
Local
Council and Others (Umhlatuzana Civic Association Intervening)
[2001] ZACC 9
;
2002
(1) SA 429
(CC)
(2001 (11) BCLR 1109)
stated the following in para
[24] with regard to statutory provisions which are capable of more
than one construction:
Where
a statutory provision is capable of more than one reasonable
construction, one which would lead to constitutional invalidity
and
the other not, a court ought to favour the construction which avoids
constitutional invalidity, provided such interpretation
is not unduly
strained’. ’’
3.7.4
Par 10 inter alia reads as follows:
“
[10]
Social and economic context
10.1
The common-law duty of support is a flexible concept that has been
developed and extended over time by our Courts to cover
a wide range
of relationships such as grandparents vis-a-vis grandchildren, and
vice versa, children to their parents, brothers
and sisters to each
other, divorcees towards each other, same- sex partnerships and most
recently extending the duty of support
of an illegitimate child to
its paternal grandparents See Petersen v Maintenance Officer and
Others
2004 (2) BCLR 205
(C); Lamb v Sack
1974 (2) SA 670
(T);
Langemaat v Minister of Safety and Security
1993 (3) SA 312
(T)
(1998
(4) BCLR 312)
; Du Plessis v Road Accident Fund
2004 (1) SA 359
(SCA)
(2003 (11) BCLR 1220).
10.2 The questions that Courts consider in
determining whether a particular relationship gives rise to a duty of
support include:
10.2.1
Does the complainant require financial aid?
10.2.2
Does the relationship between the two parties create a duty to
maintain? The second leg must take account of the times and
society
in which we live. See the Langemaat decision (supra at 315C - H).”
(3.8) SUSARA MEYER v RAF
(See
paragraph 3.1.2 above)
3.8.1
In this matter, the Plaintiff based her case on being a “third
party” who should be placed in the same position
as a widow who
was legally married to the deceased.
3.8.2
The Defendant contended that the Plaintiff was not in law, entitled
to claim for loss of support since the Plaintiff and the
deceased
were not legally married to each other.
3.8.3
The test that the Plaintiff had to satisfy was put as follows in
paragraph [7] of the judgment:
“
[7]
The Plaintiff’s counsel submitted that the validity of the
Plaintiff’s claim for loss of support should satisfy
the
following test:
(v)
The Plaintiff must establish that the deceased had a duty to support
the Plaintiff;
(vi)
It has to be a legally enforceable duty;
(vii)
The right of the Plaintiff to such support has to be worthy of
protection by the law;
(viii)
This element has to be determined by the criterion of boni mores”.
3.8.4
It was pointed out that on the agreed facts, there is no allegation
that they intended to enter into a marriage relationship
in future. -
See paragraph [13] of the judgment.
3.8.5
The Court found on the agreed facts, the deceased undertook to
support the Plaintiff.
3.8.6
Pertaining to the question whether or not the undertaking to support
was worthy of legal protection the following is said:
CO
“
[25]
I should now determine if the undertaking made by the deceased is
worthy of legal protection, also having regard to the Constitution,

by way of an action against the defendant. The defendant is a
statutory body which can only be held liable if the provisions of
the
act allows same - See paragraph [25]’’.
“
[27]
I do agree that if parties have agreed on a morally acceptable thing
and one party breaches the agreement without any justification
the
other party can institute a claim.” - See paragraph [27]
3.8.7
As to the boni mores the following is said:
“
[28]
In my view, there is nothing morally wrong, if the deceased undertook
to support the plaintiff but to extend such an undertaking
to be
protected against the third parties, particularly the defendant,
should be scrutinised thoroughly.”
3.8.8
On the facts, the following were found:
[29]
Having regard to the agreed facts of this case there is no mention of
the fact that:
(i)The
plaintiff and the deceased had a conjugal relationship.
(ii)
They owed each other a duty of support (according to the fact that
the deceased undertook to support the plaintiff).
(iii)
The plaintiff and the deceased entered into a ceremonial 'marriage'
or that their relationship was regarded as a marriage
in the presence
of witnesses.
(iv)
They intended to marry in future.
In
my view, the abovementioned factors are important in determining
whether the plaintiff is entitled to claim or not even if the
court
cannot draw inferences from the agreed facts.
See: Municipality v Malati Park (Edms)
Bpk
1982
(2)
SA 127
(T) at 131 D. There are no grounds to justify an inference
that the parties intended to marry in the future. On the contrary,
the
plaintiff consciously chose to live with the deceased without
entering into a marriage although nothing stopped them to from
marrying."
- See paragraph [29]
(My
emphasis)
3.8.9
As far as marriage as a social institution is concerned, the
following is said in paragraph [30]:
“
[30]
In my view, marriage is an important social institution which needs
to be protected and respected by our courts. Marriage is
also
recognised by the Constitution having regard to section 15(3)(a)(i)
of the Constitution Act 106 of 1996. To regard any relationship
which
has a feature of a marriage, as a marriage, would have negative
effect on the administration of justice, morality, the norms
and
values of our society.”
(My
emphasis)
3.8.10
The learned judge then came to the conclusion that there was nothing
that “stopped” the parties from getting
married. He says
inter alia the following in paragraph [32]:
“
[32]
The plaintiff and deceased could have married if they wished to do
so, there is nothing on the facts which indicate that there
was an
obstacle which made them not marry.”
(My
emphasis)
3.8.11
I pause here to mention the following:
(i)
On the facts it was found that there was no obstacle which made the
parties not to get married nor were there any grounds to
make such
inference - see paragraphs 3.8.8 and
3.8.10
above;
(ii)
The only deduction to be made is that the aforesaid was considered to
be important and if the situation was different, it could
/ would
impact on the result.
3.8.12
Sections 9 and 10 of the Constitution (Equality and human dignity)
were considered.
3.8.13
Discrimination on the grounds of marital status was also considered.
In this regard the following is said in paragraph [33]:
“
[33]
I need to also consider if there is any discrimination on the grounds
of marital status. Subsection 9(5) states that the discrimination
is
unfair unless it is established that the discrimination is fair. This
is an issue that needs to be decided cautiously, judicially
and
pragmatically. Hoffmann v South Africa Airways
2001 (1) SA 1
at
Paragraph 27 on Page 16: “At the heart of the prohibition of
unfair discrimination is the recognition that under our Constitution

all human beings, regardless of their position in society, must be
accorded equal dignity. That dignity is impaired when a person
is
unfairly discriminated against. The determining factor regarding the
unfairness of the discrimination is its impact on the person

discriminated against. Relevant considerations in this regard include
the position of the victim of the discrimination in society,
the
purpose sought to be achieved by the discrimination, the extent to
which the rights or interests of the victim of the discrimination

have been affected and whether the discrimination has impaired the
human dignity of the victim?”
3.8.14
Pertaining to the finding that permanent life partners had to be
included in section 1 of the Maintenance of Surviving Spouse
Act, the
following is said:
“
[35]
In the case of Volks v Robinson 2005 (5) BCLR CC, the constitutional
court declined to confront the High Court decision of
Robinson and
Another v Volks NO and Others
2004 (6) SA 288
(C), where the
applicant who had been involved in a permanent life relationship had
cohabitated with the deceased for more than
sixteen years prior to
the letter’s death. Applicant sought an order declaring that
she was entitled to lodge a claim for
maintenance against the
deceased estate alternatively an order that the Maintenance of
Surviving Spouses Act 27 of 1990 was unconstitutional
and invalid, in
that it violates sections 9 and 10 of the Constitution Act 106 of
1996. Davis J ordered that the defence of survivor
‘spouse and
marriage’ in section 1 of the Maintenance of Surviving Spouse
Act had to be read as including references
to permanent life partners
and to permanent life partnerships." - See paragraph [35]
3.8.15
The upshot is that LEDWABA J came to the conclusion that the
Plaintiff could not be regarded as a person who could claim
against
the Road Accident Fund for the loss of support, in that (on the
facts) the relationship did not fall within the category
of persons
who were intended by the legislature in terms of the RAF Act.
3.8.16
He causions against including people merely staying together as
claimants as though legally married. In this regard he says
the
following in paragraph [38] of his judgment:
“
[38]
To cast the net widely, to include relationships of people who merely
stayed together, who one or both of whom undertook to
support each
other or even bequeath property to each other in their will, will, in
my view cause serious problem to, inter alia,
the law of succession
and can cause have serious problems in managing claims for loss of
support lodged by claimants who were not
legally married to the
deceased, and to the institution of the marriage itself which, in my
view, is an important element to the
development of morality and/or
the community.”
(3.9)
B, M (born DP) v B, NG (unreported) Judgment of BRASSEY AJ n the SGH
- case number 2008/25274. (I am not certain about the
date of the
judgment).
3.9.1
In this matter Brassey AJ found it not necessary to adopt a child in
order to be liable for maintenance.
3.9.2
In this regard he says the following:
(i)
“22. No need to characterize the relationship as a de facto
adoption
One
can, if one wishes, say that the defendant, by making the promise,
assumed a duty to support and maintain S.
As
a fact, this is so, but the words are typically employed to designate
duties arising out of status relationships recognized in
family law
and, as I have already said, I see no reason to say that S must be
treated as though he were the defendant’s child
by adoption’’.
- See paragraph 22 of the judgment.
(My
emphasis)
“
(ii)
23. Were it necessary for me to make this finding in order conclude
that the defendant is bound to look after S, I should have
little
hesitation in doing so. As the decision in Flynn v Farr NO &
Others 2009(1) SA 584(C) shows, courts do recognize de
facto
adoptions and treat them, at least for some purposes, as the
equivalent of legal adoptions”. - See paragraph [23]
(My
emphasis)
3.9.3
Pertaining to the fact that undertakings do not generate binding
contracts, BRASSEY AJ says the following in paragraph 15
of his
judgment:
“
15.
None of this supports an inference that, as between the two spouses,
the defendant made a contractual commitment to pay the
school fees.
The decision was the product of a domestic arrangement and so does
not sustain the inference that the defendant’s
concurrence was
given with intention to contract. Pothier, according to RH Christie
The Law of Contract 4 ed (2001) 34B, illustrates
the extra-
contractual nature of such arrangement by giving an example,
instructive in the present case, of a father’s promise
to
reward his son who does well at college. This, Pothier makes plain,
may be an undertaking of sorts, but it does not generate
a binding
contract since it is not given animus contrahendi".
(My
emphasis)
[4] CONCLUSION:
(4.1)
From the essence of the matter [par (1.2) above], the particulars of
claim [par (104) above] and the undisputed facts [par
(2.2) above],
it is clear (in my view) that:
4.1.1
Since the second half of 1990 the parties started living together as
man and wife and did so until the deceased passed away
on 23 July
2003;
4.1.2
Together they had two daughters;
4.1.3
The deceased brought up Janice (her daughter) together with his own
daughters as his own and never differentiated between
them;
4.1.4
Everybody considered them (Plaintiff and deceased) as man and wife
and so did her and his relatives and in fact everybody
else;
4.1.5
She had a contract with the deceased in the sense that she would
looked after the household and he would be (and was) the
sole
breadwinner and she was completely dependent upon him for support;
4.1.6
She and the deceased didn’t have enough money for a decent
wedding and as the years have gone by, there were ever increasing

expenses, especially the
costs
as to the upbringing of the three daughters who were more or less the
same age;
4.1.7
The parties wanted to get married;
4.1.8
Their behaviour confirms (or at least such inference can be made)
that the agreement between the parties as to their duties
(the
deceased working and the Plaintiff looking after the household and
children) has been established;
4.1.9
The parties were in a permanent life partnership;
4.1.10
The duty of support towards the Plaintiff by the deceased (over and
above the permanent life partnership) was not merely
an undertaking
but was in fact a binding contract in that the deceased clearly did
so with the intention of being legally bound
and being part of this
permanent life partnership and acted accordingly;
4.1.11
The parties and the three daughters were a close knit stable family;
4.1.12
The right of the Plaintiff to be supported by the deceased has been
well established and is legally enforceable and worthy
of protection.
(4.2)
In view of the aforesaid, this matter is clearly distinguishable from
the matter which Ledwaba J [par (3.1.2) above] dealt
with and I am
therefore not bound by it.
(4.3)
I am therefore of the view that the Plaintiff has made out a case and
has met the requirement of the test referred to in paragraph
3.1.3
above. Here I may add that especially in view of the permanent life
partnership (and the other factors mentioned above) I
am in any event
of the view that, in the light of the developments in this field,
life partners in a similar position as that of
the Plaintiff, have a
right that is worthy of protection.
(4.4)
Consequently, I have come to the conclusion that the Plaintiff has
locus standi to claim an amount for loss of support from
the
Defendant.
1.
It is declared that the Plaintiff has the necessary locus standi to
claim an amount for loss of support from the Defendant;
2.
The Defendant is ordered to pay Plaintiffs costs including the costs
of two counsel.
GOODEY AJ