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[2012] ZASCA 130
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Paixao and Another v Road Accident Fund (640/11) [2012] ZASCA 130; [2012] 4 All SA 262 (SCA); 2012 (6) SA 377 (SCA) (26 September 2012)
Links to summary
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 640/11
Reportable
In the matter between:
MARIA ANGELINA PAIXÃO
...........................................................
FIRST
APPELLANT
MICHELLE ORLANDA
SANTOS PAIXÃO
................................
SECOND APPELLANT
v
ROAD ACCIDENT FUND
........................................................................
RESPONDENT
Neutral citation:
Paixão v Road Accident Fund
(640/2011)
[2012] ZASCA
130
(26 September 2012).
Coram:
Mthiyane
DP, Cachalia, Tshiqi, Petse JJA and Southwood AJA
Heard:
10
September 2012
Delivered: 26
September 2012
Summary: Dependants’
action – Permanent heterosexual life partnership –
reciprocal duty of support established
by tacit agreement –
Common law extended to afford protection to dependants.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
South Gauteng High Court, Johannesburg (Mathopo J sitting as court of
first instance):
The appeal succeeds with
costs. The decision of the high court is set aside and replaced with
the following:
‘
(a)
The respondent is ordered to pay to the first appellant the sum of R1
707 612 million.
(b) The respondent is
ordered to pay the second appellant the sum of R 451 626.
(c) The respondent is
ordered to pay the appellants’ taxed or agreed costs of the
action which costs are to include the costs
of the actuaries,
Clemans, Murfin & Rolland.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
CACHALIA JA (Mthiyane DP,
Tshiqi, Petse JJA and Southwood AJA concurring):
[1] The main issue in
this appeal concerns whether or not the common law should be
developed to extend the dependants’ action
to permanent
heterosexual relationships.
[2] The appellants, Maria
Angelina Paixão and her daughter Michelle Orlanda Santos, sued
the respondent, the Road Accident
Fund, under
s 17(1)
of the
Road
Accident Fund Act 56 of 1996
, for loss of maintenance and support
arising from the death of José Adelino Do Olival Gomes in a
motor vehicle collision
on 2 January 2008.
1
The deceased had been
living with the first appellant (Mrs Paixão) and her children
at the time and supported them financially.
He had planned to marry
her, but had not yet done so. The South Gauteng High Court,
Johannesburg (Mathopo J)
2
found that the deceased
had supported the appellants out of ‘gratitude’,
‘sympathy’ and ‘kindness’
in return for their
assistance during his illness rather than from any legal duty, and
also that it ‘would be an affront
to the fabric of our society
. . . and seriously erode the institution of marriage’ if the
dependants’ action were
to be extended to the appellants. It
therefore dismissed their claims against the fund but granted them
leave to appeal to this
court.
[3] The essential facts
pertaining to the nature of the relationship between the appellants
and the deceased are not in dispute.
They emerge from the stated case
and further evidence adduced by three witnesses who testified on
behalf of the appellants –
Mrs Paixão herself, Fatima
Regina Santos Paixão, her eldest daughter and Mrs Theresa
Goncalves, a close family friend.
The fund adduced no rebuttal
evidence. It’s cross-examination of the three witnesses was
aimed at impugning the appellants’
assertion that the deceased
had had a legal duty rather than merely a moral commitment to support
them.
[4] The facts are these:
Mrs Paixão was born in June 1957 on the Portuguese Island of
Madeira, where she received her primary
school education up to
standard four. It is not clear when she came to South Africa. She
married Manuel Paixão in 1980.
Three daughters were born of
this union: Fatima, Marlize and Michelle, the second appellant. She
is the youngest and was born in
February 1991. Manuel Paixão
died in June 2000. After his death Mrs Paixão commenced
formal employment for the
first time as a chef in a transport company
where her husband had previously been employed.
[5] Two years later, in
2002, she met the deceased who she had engaged to do maintenance work
on her house. They became good friends.
At the time he was married to
Mrs Healdina De Jesus Carreira Melro according to Portuguese law.
They were unhappy and had been
living apart for some time.
[6] The relationship
between the deceased and Mrs Paixão grew as did his bond with
her daughters. In May 2003, Fatima married.
The deceased paid for the
wedding. Fatima testified that he told her that he wished to pay
because ‘he felt responsible for
us (and) he wanted to be part
of our family . . . of our lives’.
[7] In October 2003, the
deceased fell ill and was hospitalised. Upon his discharge from
hospital Mrs Paixão offered to nurse
and support him at her
home until he was able to return to work. He accepted the offer and
began living with her and her two unmarried
daughters in a ‘permanent
life partnership’. He was not formally divorced from his wife
at the time. But that marriage
was, for all practical purposes, over.
[8] During their
cohabitation, the deceased paid for everything. Mrs Paixão was
retrenched in February 2004, and his was
the sole income of their
household. The deceased did not want her to work and undertook to
support her and the children. He assured
her that he would marry her
as soon as his divorce from his wife was finalised. He also took care
of her, as he had promised to
do, by taking full responsibility for
the family’s food, holidays, university fees of the second
daughter, Marlize, and Michelle’s
school fees. According to Mrs
Goncalves he assumed this obligation ‘because he was living
with her (Mrs Paixão) and
she was his wife’. By this she
meant that the community acknowledged that they were living together
as if they were married.
[9] Two significant
events occurred in June 2005. First, the deceased divorced Mrs Melro
according to South African law. However,
he felt constrained not to
marry Mrs Paixão before his divorce was also concluded and
recognised in Portugal. Second, he
executed a Joint Will with
Mrs Paixão in which they nominated each other ‘as
the sole and universal heirs of
our entire estate and effects of the
first dying of us’. The Will went on to say that in the event
of their simultaneous
deaths their assets were to be consolidated and
Mrs Paixão’s three daughters – referred to in the
Will as ‘our
daughters’ – were to inherit in equal
shares. If the event happened before the daughters turned 21, a trust
was to
be created for their benefit.
[10] In June 2007 the
deceased’s divorce from his wife was concluded in Portugal.
There were now no legal or practical impediments
to his marrying Mrs
Paixão and they began making arrangements to marry. They
travelled to Portugal where he introduced her
to his parents, who
apparently approved of their relationship. They planned to be married
in Portugal on 12 April 2008. The date
was chosen to coincide with
his parents’ 50
th
wedding anniversary, which was to
be celebrated in Portugal. To this end, in November 2007, he asked
Mrs Goncalves to assist with
the flight details. Sadly, he died two
months later before they could make the journey. Mrs Paixão
made arrangements
for his body to be flown to Portugal for burial
according to his wishes.
[11] The appellants
contend that before and during the period of cohabitation the
deceased had contractually undertaken to maintain
and support them,
was legally obliged to do so and would have done so for the remainder
of Mrs Paixão’s life and until
Michelle became
self-supporting. The fund maintains that the appellants did not
establish a legally enforceable agreement between
the deceased and
Mrs Paixão, and even if they did, the agreement is not
enforceable against a third party such as the fund.
[12] A claim for
maintenance and loss of support suffered as a result of a
breadwinner’s death is recognised at common law
as a
‘dependants’ action’.
3
The object of the remedy
is to place the dependants of the deceased in the same position, as
regards maintenance, as they would
have been had the deceased not
been killed.
4
The remedy has been
described as ‘anomalous, peculiar and
sui
generis
’
because
the dependant derives her right not through the deceased or his
estate but from the fact that she has suffered loss by the
death of
the deceased for which the defendant is liable.
5
However, only a dependant
to whom the deceased, whilst alive, owed a legally enforceable duty
to maintain and support may sue in
such an action.
6
Put differently the
dependant must have a right, which is worthy of the law’s
protection, to claim such support.
7
So if a dependant
institutes a claim under the Act, she would be entitled to
compensation from the fund for her proven loss if she
establishes
this right.
8
[13] The existence of a
dependant’s right to claim support which is worthy of the law’s
protection, and the breadwinner’s
correlative duty of support,
is determined by the
boni
mores
criterion
or, as Rumpff CJ in another context put it in
Minister
van Polisie v Ewels
,
9
the legal convictions of
the community. This is essentially a judicial determination that a
court must make after considering the
interplay of several factors:
‘the hand of history, our ideas of morals and justice, the
convenience of administering the
rule and our social ideas of where
the loss should fall’.
10
In this regard
considerations of ‘equity and decency’ have always been
important.
11
Underpinning all of this
are constitutional norms and values. So the court is required to make
a policy decision based on the recognition
that social changes must
be accompanied by legal norms to encourage social responsibility.
12
By making the
boni
mores
the
decisive factor in this determination, the dependants’ action
has had the flexibility to adapt to social changes and to
modern
conditions.
[14] Although the precise
scope of the dependants’ action is unclear from the old
Roman-Dutch jurists, there is a strong suggestion
that it was not
confined only to those classes of persons to whom the breadwinner had
a legal obligation to support, but was also
available to those whom
the deceased ‘was accustomed to support from a sense of duty’.
13
In
Amod
v Multilateral Vehicle Accidents Fund
14
Mahomed CJ put it thus:
‘
[7] The
precise scope of the dependant's action is unclear from the writings
of the old Roman-Dutch jurists. De Groot extends it
to “those
whom the deceased was accustomed to aliment
ex
officio
, for example his parents, his
widow, his children . . . .” This and other passages in De
Groot's
writings
perhaps support his suggestion that the action was competent at the
instance of any dependant within his broad family whom
he in fact
supported whether he was obliged to do so or not but this is unclear.
The same uncertainty but tendency to extend the
dependant's action to
any dependant enjoying a
de facto
close familial relationship with the
breadwinner is also manifest in Voet
9.2.11
who seeks to accord the dependant's action to the breadwinner's,
“wife, children and the like” (“
uxori,
liberis, similibusque
”
).’
[15] However, as this
court
observed
in
Amod
,
the old authorities appeared to be anxious to recognise the existence
of a dependants’ action for the ‘family’
members of
the deceased.
15
But it cannot be stated
conclusively that they intended only relationships by blood or
marriage to fall within its ambit.
16
And given the
sui
generis
character
of the remedy there seems to be no proper reason to restrict it only
to family or blood relationships when social changes
no longer
require this.
[16] I mentioned earlier
that the remedy was given only to dependants to whom the deceased
owed a legal duty to support or maintain,
the courts nevertheless
applied it flexibly. So, even though it did not occur to the jurists
of the seventeenth century to extend
the remedy to a husband, the
court in
Union
Government (Minister of Railways and Harbours) v Warneke
17
was able to do so by
adapting it to ‘conditions of modern life’. The remedy
was thus gradually extended to include new
classes of persons that
fell within its rationale. Hence the courts have recognised a
husband’s claim for the loss of his
injured wife’s
support;
18
a claim of a divorcee,
who had been receiving maintenance payments from her erstwhile
husband pursuant to a court order at the time
of his death;
19
a widow’s claim
arising from a marriage under African customary law;
20
a claim of a Muslim widow
whose marriage under Islamic law had not been registered as a civil
marriage under the Marriage Act 25
of 1961;
21
and a claim by a partner
of a same-sex permanent life relationship, who had tacitly undertaken
reciprocal duties of support with
the deceased.
22
In extending the remedy
to same sex partnerships Cloete JA said that this ‘would be an
incremental step to ensure that the
common law accords with the
dynamic and evolving fabric of our society as reflected in the
Constitution, recent legislation and
judicial pronouncements’.
23
[17] The case for the
appellants rests on two legs: first that an express or tacit
agreement existed between the appellants and
the deceased which
created a binding obligation upon him to maintain and support them,
and second, that the nature of the relationship,
being akin to a
family relationship, was such that it is deserving of the law’s
protection. In this regard, Mr Ancer, who
appears for the appellants,
submits that their constitutional right to equality and dignity would
be violated if a duty of support
is not recognised for permanent life
partnerships, but is in the case of formal marriages.
24
Mr Steven Budlender, who
appears for the fund, takes issue with both contentions.
[18] First it must be
decided whether there was an agreement creating a binding legal
obligation between the appellants and the
deceased. An agreement may
be made expressly or tacitly. An express agreement may be made orally
or in writing. A tacit agreement
is inferred from the surrounding
circumstances and conduct of the parties. In either case it is for
the court to decide whether
a contract probably came into existence.
The high court came to the conclusion that the deceased had merely
promised to take care
of the Paixão family, but had not
undertaken a legally enforceable obligation to do so.
25
[19] I disagree with this
conclusion. In my view, the evidence indicating that the deceased and
the Paixão family had, at
least tacitly, undertaken a
reciprocal duty of support is compelling. They began living together
in October 2003 when Mrs Paixão
had offered to nurse him at
her home after his discharge from hospital. He accepted the offer and
continued living with her after
his recovery. The high court held
that ‘the inference that can be drawn from [her] gesture is
that after [Mrs Paixão]
and her children looked after him
after his discharge from hospital, he felt obliged to repay their
kindness by assisting them
with monthly expenses’. I do not
think that this is the ‘most plausible probable inference’
from a fair reading
of all the evidence.
26
[20] The evidence shows
that after his recovery he lived with the Paixão family in a
mature, committed and loving ‘family’
relationship. They
were accepted by their relatives, community and friends as a family
unit. They pooled their resources and, when
she was retrenched, he
supported the family financially as if they were his own. Indeed the
evidence establishes that he expressly
said that he regarded them as
his family. There can be no stronger indication that he regarded Mrs
Paixão and her daughters
as
his
family than from the
content of their Joint Will – he not only made her the sole
heir of his estate but provided for the massing
of their estates in
the event of simultaneous death and nominated ‘our children’
as their heirs also making provision
for them to benefit from a
trust. These provisions are common in wills of married people with
children. The facts here are remarkably
similar to those in
Du
Plessis
where
the court held that that the plaintiff had proved that the parties
had tacitly undertaken a reciprocal duty of support to
one another.
27
[21] It is significant
that the deceased assumed these obligations while planning to marry
Mrs Paixão as soon as it was practically
possible to do so.
They would have married earlier if they were not confronted with the
obstacle of his first having to be officially
divorced in Portugal.
Put another way there was clearly a tacit agreement that he would
assume the obligation to support the family
before the marriage –
the marriage would change nothing except for the relationship being
formally recognised.
[22] The court below held
that a mere promise to marry did not attract any legal obligation on
the deceased’s part. This is
correct.
28
However, this case does
not concern breach of a promise to marry, but requires us to consider
whether or not the nature of the relationship
between the parties
gave rise to a reciprocal duty of support, which the law must
protect. In my view the obligations undertaken
by the deceased were
akin to a
pactum
de contrahendo
,
which is an agreement to make a contract in the future.
29
This is different from a
mere promise to contract, which is not binding. In a case of a
pactum
de contrahendo
one
or both parties may undertake to perform certain duties before the
‘main agreement’ comes into effect. Such undertakings
are
enforceable.
30
I find that the most
plausible probable inference from the facts is that the deceased
undertook to support and maintain the Paixão
family before
formally entering into a marriage contract.
[23] Of course the mere
fact that the parties had a binding agreement
inter
se
does
not mean that it was enforceable against third parties such as the
fund. Put another way the appellants had to establish not
only that
they had an enforceable agreement against the deceased but that the
obligations created by the nature of their relationship
were worthy
of the law’s protection.
31
As I have said this must
be determined by reference to the
boni
mores
criterion.
[24] Before I consider
this question it is necessary to review the cases that have dealt
with problems concerning the duty of support
in permanent life
partnerships. In
Du
Plessis v Road Accident Fund,
32
which concerned a
dependant’s action, this court said that to the extent that the
common law denies a survivor of a permanent
life relationship similar
to marriage the right to claim support from the fund, but allows the
claim for a spouse of a marriage,
the differentiation unfairly
discriminates against him and unjustifiably infringes his right to
equality in s 9 of the Constitution.
33
It thus concluded that
where same-sex partners have established a reciprocal legal duty of
support that duty was worthy of protection,
34
but left open the
question whether the dependants’ action should be extended
generally to unmarried parties in heterosexual
relationships or to
any other relationships.
35
In extending the
protection of the common law to same-sex partnerships, the court
found support in the judgment of the Constitutional
Court in
Satchwell
v President of the Republic of South Africa
36
which had held that it
was unfairly discriminatory to afford statutory benefits to spouses
in heterosexual marriages but not to
same-sex partners who had
established a permanent life relationship similar to marriage. The
Constitutional Court, however, emphasised
that this did not mean that
benefits provided to spouses in legally recognised marriages should
be extended to same sex partners
who had not undertaken reciprocal
duties of support
37
–
an issue that
arose in
Volks
NO v Roberson
.
38
[25]
Here the Constitutional Court was concerned with whether the
protection given to a ‘survivor’ of a marriage under
the
Maintenance of Surviving Spouses Act 27 of 1990 (the Maintenance
Act), which grants to surviving spouses the right to claim
maintenance from the estates of deceased spouses, should also be
afforded to survivors in heterosexual permanent life partnerships.
In
this regard the court had to consider whether by excluding survivors
of permanent life partnerships from such protection, the
Maintenance
Act unfairly discriminated against them on the ground of their
marital status. The court concluded that it was not
unfair to
distinguish between survivors of marriage and survivors of
heterosexual cohabitation.
39
It arrived at this
conclusion because of the importance it attached to ‘the legal
privileges and obligations’ by the
law of marriage which
accords benefits to married people but not to unmarried people. The
maintenance benefit in s 2(1) of the
Maintenance Act,
40
the court said, was one
such benefit.
41
In coming to this
conclusion the court said the following:
‘
There
are a wide range of legal privileges and obligations that are
triggered by the contract of marriage. In a marriage the spouses’
rights are largely fixed by law and not by agreement, unlike in the
case of parties who cohabit without being married.
.
. . The distinction between married and unmarried people cannot be
said to be unfair when considered in the larger context of
the rights
and obligations uniquely attached to marriage. Whilst there is a
reciprocal duty of support between married persons,
no duty of
support arises by operation of law in the case of unmarried
cohabitants. The maintenance benefit in section 2(1) of
the Act falls
within the scope of the maintenance support obligation attached to
marriage. The Act applies to persons in respect
of whom the deceased
person (spouse) would have remained legally liable for maintenance,
by operation of law, had he or she not
died.
.
. . [I]t is not unfair to make a distinction between survivors of a
marriage on the one hand, and survivors of a heterosexual
cohabitation relationship on the other. In the context of the
provision for maintenance of the survivor of a marriage by the estate
of the deceased, it is entirely appropriate not to impose a duty upon
the estate where none arose by operation of law during the
lifetime
of the deceased. Such an imposition would be incongruous, unfair,
irrational and untenable.’
[26]
For present purposes I make two observations about this judgment:
First, although the court stated that no reciprocal duty
of support
arises
by
operation of law in the case of unmarried cohabitants it also said
that this does not preclude such a duty from being fixed by
agreement
42
–
the case advanced
by the appellants. Second, the purpose of the Maintenance Act
43
is very different from
the rationale and development of the dependants’ action at
common law, which is
sui
generis.
In
the case of the former s 2(1) of the Maintenance Act provides for the
reasonable maintenance needs of a party to a marriage from
the estate
of a deceased spouse. The issue before the court was therefore
whether a spousal benefit arising from a legally recognised
marriage
should also be available to a surviving partner of a life
partnership. The object of the remedy in a dependants’
action,
on the other hand, is to place the dependants of the deceased, to
whom the deceased owed a legally enforceable duty to
support and
maintain, in the same position as they would have been, as regards
support and maintenance, had the deceased not been
unlawfully killed
by a wrongdoer. The right of a dependant to sue for this loss arises
because the wrongdoer unlawfully caused
the termination of a legally
enforceable duty of support – it is not a spousal benefit that
accrues to a dependant only by
virtue of a formally recognised
marriage.
44
[27]
Volks
,
therefore, does not stand in the way of the appellants’
submission that the common law may be developed to extend the
dependants’
action generally to unmarried parties in
heterosexual relationships or to any other relationships – the
question left open
in
Du
Plessis v Road Accident Fund.
45
It is to this question
that I must now turn.
[28] Mr Budlender submits
that it is inappropriate for this court to develop the common law to
include unmarried heterosexual relationships
within its remit for two
reasons: first, because of practical problems for defendants such as
the fund to refute a plaintiff’s
reliance on a life partnership
to support the assertion of a reciprocal duty of support; second,
because the extension of legal
protection to unmarried heterosexual
partners should be dealt with comprehensively by parliament instead
of the courts doing so
thereby opening the floodgates to
indeterminate liability.
[29]
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.
46
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.
47
[30]
Mr Budlender’s second reason, that the courts should not
develop the common law to include heterosexual life partnerships,
but
rather leave their regulation to the lawmaker, is also not
persuasive. We are not here embarking on an exercise that impinges
on
the lawmaker’s responsibility for law reform in this area,
which has commenced with the South African Law Commission’s
draft Domestic Partnerships Bill, 2008;
48
we are performing a duty
that falls properly within the province of the courts ie to decide
‘on incremental changes which
are necessary to keep the common
law in step with the dynamic and evolving fabric of our society’.
49
The courts have always
had this duty and s 173 of the Constitution now explicitly recognises
it.
50
What we are required to
decide here is whether the evolving fabric of our society requires
the common law to undergo an incremental
change to extend the
dependants’ action to include heterosexual life partners. A
failure to confront this question squarely,
when the circumstances of
this case and the interests of justice so require, would be an
abdication of our judicial responsibility.
[31]
Our courts have emphasised the importance of marriage and the nuclear
family as important social institutions of society, which
give rise
to important legal obligations, particularly the reciprocal duty of
support placed upon spouses.
51
The fact is, however,
that the nuclear family has, for a long time, not been the norm in
South Africa. South Africans have lower
rates of marriage and higher
rates of extra-marital child-bearing than found in most countries.
52
[32]
Millions of South Africans live together without entering into formal
marriages. This is simply a fact of life, although, as
Mokgoro J and
O’Regan J observed in
Volks
,
their circumstances differ significantly:
‘
Some
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.’
53
I would add that in
addition to legal or religious constraints that the learned judges
mention, many others are unable to marry
for social, cultural or
financial reasons.
[33]
Among the reasons for the decline in formal marriages is ‘the
legacy of family disruption’ caused by apartheid’s
migrant labour system,
54
which remains a feature
of South Africa’s current economy. Many migrant workers enter
into permanent relationships and have
families, outside of their
formal marriages, that they support and maintain.
[34]
Life partnerships have therefore increasingly received legislative
and judicial recognition reflecting the changing
boni
mores.
55
In line with this trend,
in
Verheem
v Road Accident Fund
,
56
the North Gauteng High
Court recently extended the scope of the dependants’ action to
cohabiting partners in a heterosexual
permanent life partnership in
circumstances remarkably similar to those in this case.
57
I pause to mention that
in the present case, Mathopo J held himself not bound by
Verheem
because the facts
differed. But without considering and deciding that
Verheem
was
clearly wrong, this was an incorrect basis to distinguish the cases.
58
[35] I revert to the
circumstances of this case. The facts show that the community
accepted the deceased, Mrs Paixão and
her children as a family
and did not regard their cohabitation as opprobrious. Indeed, as I
have shown, cohabitation outside of
a formal marriage is now widely
practised and accepted by many communities universally.
59
They had, however, chosen
to get married, were committed to this course, and had commenced
plans to this end. Crucially they had
already undertaken reciprocal
duties of support, agreed to formalise their relationship through
marriage and executed a family
will as evidence of their commitment
to each other.
[36] I mentioned earlier
there is some suggestion in the old authorities that the dependants’
action was available even to
persons to whom the breadwinner felt a
‘sense of duty’ to support and not only to those to whom
a legal duty was owed.
The deceased in this case undertook a duty to
maintain and support his adopted ‘family’ out of a
profound, deep and
loving sense of duty, and did so. I have found
that the appellants tacitly established the existence of legally
enforceable duty
of support. Having regard to the incremental
extension of the dependants’ action through the times, our
ideas of morals and
justice, and of equity and decency, I can see no
reason of principle or policy not to extend the protection of the
common law to
the appellants here. In my view, the ‘general
sense of justice of the community’ demands this.
60
[37] Having come to this
conclusion I need not consider the constitutional question referred
to earlier in para 17 – whether
it would amount to unfair
discrimination for the law to give protection to the duty of support
arising from a marital relationship
but not to a relationship where
the duty arises in the context of heterosexual permanent life
partnerships.
[38] Mr Budlender submits
further that if we are inclined to develop the common law so as to
extend its protection to the appellants
in the circumstances of this
case, we should limit its effect only to instances where there is an
agreement to be married. In considering
this submission I am mindful
of the cautionary remarks made by Corbett JA (as he then was), on the
occasion of the Third Oliver
Schreiner Memorial Lecture, that when
developing the common law the court should confine itself to the
particular legal problem
under consideration rather than expound the
law generally on the topic.
61
[39] The difficulty I
have with Mr Budlender’s submission is that extending the
protection of the dependants’ action
only to permanent
heterosexual relationships where there is an agreement to marry
requires us to draw an arbitrary line between
those relationships and
most others where there is no such agreement. The proper question to
ask is whether the facts establish
a legally enforceable duty of
support arising out of a relationship akin to marriage. Evidence that
the parties intended to marry
may be relevant to determining whether
a duty of support exists, as in this case. But it does not mean that
there must be an agreement
to marry before the duty is established.
And once a dependant establishes the duty, the law ought to protect
it.
[40] By coming to this
conclusion I do not intend to demean the value or importance that our
society places on marriage as an institution
as the high court
feared.
62
On the contrary, I am
extending the protection afforded to the dependants of the deceased
precisely because the nature of their
relationship is similar to a
family relationship arising from a legally recognised marriage. I
therefore hold that the dependants’
action is to be extended to
unmarried persons in heterosexual relationships who have established
a contractual reciprocal duty
of support.
[41] Mr Budlender also
contends that even if Mrs Paixão succeeds in her claim, her
daughter, Michelle, should not. But once
it is established that the
deceased had undertaken to support Mrs Paixão and her
children, including Michelle, and did so,
I cannot see any reason why
Michelle’s claim should fail. Her claim, like her mother’s,
arose from the same ‘family
relationship’.
[42] The parties have
agreed on the extent of the appellants’ losses. In the result
the appeal succeeds with costs. The decision
of the high court is set
aside and replaced with the following:
‘
(a)
The respondent is ordered to pay to the first appellant the sum of
R1 707 612 million.
(b) The respondent is
ordered to pay the second appellant the sum of R 451 626.
(c) The respondent is
ordered to pay the appellants’ taxed or agreed costs of the
action which costs are to include the costs
of the actuaries,
Clemans, Murfin & Rolland.’
__________________
A CACHALIA
JUDGE OF APPEAL
APPEARANCES
For Appellant: B Ancer SC
Instructed by:
Norman Berger &
Partners Inc, Johannesburg
Lovius Block,
Bloemfontein
For Respondent: S
Budlender
Instructed by:
Lindsay Keller,
Johannesburg
Matsepes Inc,
Bloemfontein
1
Section
17 of the Act provides: ‘(1) The Fund or an agent shall—
(
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,
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: Provided
that the obligation of the Fund to compensate a third party for
non-pecuniary loss shall be limited
to compensation for a serious
injury as contemplated in subsection (1A) and shall be paid by way
of a lump sum.’
2
Paixão
and another v Road Accident Fund
[2011]
ZAGPJHC 68 (1 July 2011).
3
Amod
v Multilateral Vehicle Accidents Fund
1999 (4) SA 1319
(A) para
6.
4
Legal
Insurance Company Ltd v Botes
1963 (1) SA 608
(A) at 614D-F.
5
Santam
Bpk v Henery
[1999] ZASCA 5
;
1999 (3) SA 421
(SCA) at 429E-I.
6
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 838A-B.
7
J
Neethling, J M Potgieter and P J Visser
The Law of Delict
5
ed at 257 n 39;
Santam Bpk v Henery
[1999] ZASCA 5
;
1999 (3) SA 421
(SCA) at
429C-D;
Amod v Multilateral Vehicle Accidents Fund
1999 (4)
SA 1319
(SCA) para 12. See the commentary on these cases by J
Neethling and J M Potgieter ‘Uitbreiding van die
Toepassingsgebied
van die Aksie van Afhanklikes’ (2001)
THRHR
484.
8
Section
17(1)
of the
Road Accident Fund Act 56 of 1996
.
9
Minister
van Polisie v Ewels
1975 (3) SA 590
(A).
10
Knop
v Johannesburg City Council
1995 (2) SA 1
(A) at 27G-I.
11
Amod
v Multilateral Vehicle Accidents Fund
1999 (4) SA 1319
(A) para
10.
12
Cf
P Q R Boberg
The Law of Delict: Aquilian Liability
vol 1 at
214.
13
Amod
para 7 n 3.
14
Amod
para 7.
15
Amod
para 8.
16
Santam
Bpk v Henery
[1999] ZASCA 5
;
1999 (3) SA 421
(SCA) at 426F-G.
17
Ibid
para 9;
Union Government (Minister of Railways and Harbours) v
Warneke
1911 AD 657
at 665.
18
Abbott
v Bergman
1922 (AD) 53 at 55-56.
19
Santam
Bpk v Henery
[1999] ZASCA 5
;
1999 (3) SA 421
(SCA).
20
Zimnat
Insurance Co Ltd v Chawanda
1991 (2) SA 825
(ZS).
21
Amod
v Multilateral Vehicle Accidents Fund
1999 (4) SA 1319
(SCA).
22
Du
Plessis v Road Accident Fund
2004 (1) SA 359
(SCA).
23
Ibid
para 37.
24
Section
9
of the Constitution
provides:
‘
(1) Everyone is
equal before the law and has the right to equal protection and
benefit of the law.
(2) Equality includes
the full and equal enjoyment of all rights and freedoms. To promote
the achievement of equality, legislative
and other measures designed
to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may
be taken.
(3) The state may not
unfairly discriminate directly or indirectly against anyone on one
or more grounds, including race, gender,
sex, pregnancy,
marital
status
, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, culture, language and
birth.
(4) No person may
unfairly discriminate directly or indirectly against anyone on one
or more grounds in terms of subsection (3).
National legislation
must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on
one or more of the grounds listed in subsection (3) is unfair unless
it is established that the discrimination
is fair.’ (Emphasis
added.)
Section 10 provides:
‘Everyone has inherent dignity and the right to have their
dignity respected and protected.’
25
Paixão
and another v Road Accident Fund
[2011] ZAGPJHC 68 (1 July 2011)
paras 31-33.
26
Joel
Melamed and Hurwitz v Cleveland Estates (Pty) Ltd
[1984] ZASCA 4
;
1984 (3) SA
155
(A) at 164G-165G; R H Christie and G B Bradfield
Christie’s
Law of Contract in South Africa
6 ed 86-87.
27
Du
Plessis v Road Accident Fund
2004 (1) SA 359
(SCA) paras 14-16.
28
Van
Jaarsveld v Bridges
2010 (4) SA 558
(SCA) para 8.
29
Per
Corbett JA in
Hirchowitz v Moolman
1985 (3) SA 739
(A) at
765I.
30
R H Christie
and G B Bradfield Christie’s
Law of Contract in South
Africa
6 ed 39-40.
31
Neethling
et al
The
Law of Delict
at 259.
32
Du
Plessis v Road Accident Fund
2004 (1) SA 359
(SCA).
33
Ibid
para 25.
34
Ibid
para 33.
35
Ibid
para 43.
36
Satchwell
v President of the Republic of South Africa
2002 (6) SA 1
(CC)
para 25
.
37
See
generally D S P Cronje and J Heaton
South African Family Law
3
ed at 249-252, which discusses the legal protection the courts have
given to same-sex life partnerships. Parliament has since
enacted
the
Civil Union Act 17 of 2006
. This Act puts same-sex and
heterosexual unions on the same footing by allowing both to
formalise their unions the effect of
which is that they have the
same legal consequences as a civil marriage concluded under the
Marriage Act 25 of 1961.
38
Volks
NO v Robinson
2005 (5) BCLR 466
BC (CC).
39
Ibid
para 60.
40
Section
2(1) provides
:
‘
If a marriage is
dissolved by death after the commencement of this Act the survivor
shall have a claim against the estate of the
deceased spouse for the
provision of his reasonable maintenance needs until his death or
remarriage in so far as he is not able
to provide therefor from his
own means and earnings.’
41
Ibid
Volks
paras 57-60.
42
Ibid
para 58.
43
Ibid
paras 36-39.
44
B
Smith and J Heaton ‘Extension of the dependant’s action
to heterosexual life partners after
Volks NO v Robinson
and
the coming into operation of the
Civil Union Act – thus
far
and no further?’
(2012)
THRHR
472
at 479.
45
Du
Plessis v Road Accident Fund
2004 (1) 359 (SCA) para 43. It
follows too that to the extent that the court in
Susara Meyer v
Road Accident Fund (
Unreported) Case No: 29950/2004 28/3/2006,
found that
Volks
supported its rejection of a dependant’s
claim of a permanent life partnership, it erred.
46
See
D S P Cronje and J Heaton (above) at 243.
47
Cf
McDonald v Young
2012 (3) SA 1
(SCA) para 14.
48
For
a critical discussion of this Bill see the LLD Thesis of Bradley
Shaun Smith ‘The development of South African Matrimonial
Law
with specific reference to the need for and application of a
domestic partnership rubric’
University of the Free State
(2009).
49
Du
Plessis & others v De Klerk & another
[1996] ZACC 10
;
1996 (3) SA 850
(CC) para 61.
50
Section
173 of the Constitution provides:
‘
The
Constitutional Court, Supreme Court of Appeal and High Courts have
the inherent power to protect and regulate their own process,
and to
develop the common law, taking into account the interests of
justice.’
51
Volks
NO v Robinson
2005 (5) BCLR 466
BC (CC) para 52.
52
D
Budlender and F Lund ‘South Africa: A Legacy of Family
Disruption’ (2011)
Development and Change
925 at
927-932.
53
Volks
NO v Robinson
2005 (5) BCLR 466
BC (CC) para 120.
54
D
Budlender and F Lund ‘South Africa: A Legacy of Family
Disruption’ (2011)
Development and Change
925 at
927-932.
55
See
D S P Cronje and J Heaton (above) Chapter 20 para 20.3.1.
56
Verheem
v Road Accident Fund
2012 (2) SA 409
(GNP).
57
Ibid
para 12.
58
See
generally B S Smith ‘Extension of the dependant’s action
to heterosexual life partners after
Volks NO v Robinson
and
the coming into operation of the
Civil Union Act – thus
far
and no further?’
(2012)
THRHR
472
; ‘The
dependant’s action in the context of heterosexual life
partnerships: A consideration of the
Verheem
and
Paixão
cases’. Paper presented at the Society of Law Teachers of
Southern Africa Conference on 10 July 2012.
59
Volks
NO v Robinson
2005 (5) BCLR 466
(CC) para 119.
60
Schultz
v Butt
1986 (3) SA 667
(A) 679B-C.
61
M
M Corbett ‘Aspects of the Role of Policy in the Evolution of
our Common Law’
(1987)
SALJ
52
at 57.
62
Above
para 2.