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[2017] ZALMPPHC 13
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T obo Minor v Road Accident Fund (1322/2016) [2017] ZALMPPHC 13 (29 June 2017)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 1322/2016
Not
reportable
Not
of interest to other judges
Revised.
29/6/2017
In
the matter between:
T
obo the
MINOR
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
MOKGOHLOA
DJP
1.
This is a claim for damages resulting from the death of Mr Mpho
Victor Gangashe (the deceased), who died in a motor vehicle collision
that occurred on 9 May 2015. The plaintiff claims in her personal
capacity as well as in her capacity as the mother and guardian
of her
minor child.
2.
In her particulars of claim, the plaintiff pleaded that the deceased
had a legal obligation to maintain her and the minor child
and that
he had fulfilled that duty. The defendant on the other hand, disputed
the plaintiff’s
locus standi
in respect of her personal
claim.
3.
The issue to be determined in this trial is whether the plaintiff has
locus standi
to sue the defendant in her personal capacity for
her loss of support and whether the deceased had a legal duty to
maintain the
plaintiff.
4.
The plaintiff testified that she started dating the deceased in 2007.
She moved in with the deceased during the middle of 2011
and stayed
together in a rented flat in Midrand, Gauteng. In 2012 the plaintiff
gave birth to the deceased’s child and they
moved into a bigger
flat where they lived together until the death of the deceased.
5.
She stated that the deceased was her partner, soul mate and the
father of her child. They stayed together as husband and wife.
The
deceased supported her and the minor child. He paid rent for the flat
and bought them groceries. They had planned to marry
and were waiting
for the plaintiff to obtain employment. They even planned to buy a
house together.
6.
It came out during cross examination that the plaintiff has a
qualification in chemical engineering and she only has to do in
service training. She did courses in insurance and operation
management. She is currently employed at Sanlam.
7.
Mr Dakalo Meshack Gangashe, the deceased brother, confirmed that the
deceased and the plaintiff were dating. According to him,
the
plaintiff and the deceased stayed together in Midrand from 2010 or
2011. They stayed together as a couple. He used to visit
them
frequently.
8.
The legal basis for the
entitlement of persons to claim from the defendant (RAF) due to the
death of or bodily injury to any other
person, is the existence of a
legal duty of the deceased or injured person to support the claimant,
without which the defendant
would not be held liable for such a
claim.
[1]
9.
It is accepted that whilst
there is a reciprocal duty of support between married persons that
arises by operation of law, no such
duty exist in the case of
unmarried cohabitants. The maintenance benefit in terms of Section 2
(1) of the Maintenance of Surviving
Spouse Act
[2]
falls within the scope of the maintenance support obligation attached
to a marriage. This Act applies to persons in respect of
whom the
deceased person (spouse) would have remained legally liable for
maintenance by operation of the law had he or she not
died.
10.
In Paixão v Road
Accident Fund
[3]
,
the court gave recognition to the principle that two persons in a
permanent life partnership could enjoy reciprocal duties of
support
despite the absence of a formal marriage relationship. Such duty of
support could derive from a tacit agreement. Cachalia
JA held:
“
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 to
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”.
[4]
11.
Although the court in Paixão stated that no reciprocal duty of
support arises by operation of the law in the case of
unmarried
cohabitants, it also stated that this does not preclude such a duty
from being created by agreement, tacit or express.
12.
The case of Satchwell v
President of the Republic of South Africa
[5]
dealt with same sex relationship. The court took the following facts
into consideration in determining whether the duty of support
existed
between the parties:
“
[25] … Whether such a
duty of support exists or not will depend on the circumstances of
each case. In the present case the
applicant and Ms Carnelley have
lived together for years in a stable and permanent relationship. They
have been accepted and recognised
as constituting a family by their
families and friends and have shared their family responsibilities.
They have made financial
provision for one another in the event of
their death. It appears probable that they have undertaken reciprocal
duties of support”
13.
In Du Plessis v RAF
[6]
which also dealt with same sex relationships, the court was also
tasked to consider if the plaintiff proved a legally enforceable
duty
of support on the part of the deceased. The court quoted the case of
Satchwell
supra
with approval and stated the following:
“
[14] In the present case the
case for drawing an inference that the plaintiff and the deceased
undertook reciprocal duties of support
is even stronger. The
plaintiff and deceased would have married one another if they could
have done so. As this course was not
open to them, they went through
a ‘marriage’ ceremony which was as close as possible to a
heterosexual marriage ceremony.
The fact that the plaintiff and the
deceased went through such a ‘marriage’ ceremony and did
so before numerous witnesses
gives rise to the inference that they
intended to do the best they could do to publicise to the world that
they intended their
relationship to be, and to be regarded as,
similar in all respects t that of a heterosexual married couple, i.e.
one in which the
parties would have a reciprocal duty to support.
That having been their intention, it must be accepted as a
probability that they
tacitly undertook a reciprocal duty of support
to one another.
[15] Further support for this
finding is the fact that the plaintiff and the deceased thereafter
lived together as if they were
legally married in a stable and
permanently relationship until the deceased was killed some 11 years
later; they were accepted
by their family and friends as partners in
such a relationship; they pooled their income and shared their family
responsibilities;
each of them made a will in which the other partner
was appointed his sole heir; and when the plaintiff was medically
boarded,
the deceased expressly stated that he would support the
plaintiff financially and in fact did so until he died.
[16] In the light of the aforegoing
I am satisfied that the plaintiff proved that the deceased undertook
to support him with the
intention of being legally bound by such
undertaking. The deceased, therefore, owed the plaintiff a
contractual duty to support.”
14.
In the National Coalition for
Gay and Lesbian Equality v Minister of Home Affairs
[7]
the court held 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 provisions 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.
In order to apply the above criteria, those
administering the Act are entitled, within the ambit of the
Constitution and bearing
in mind what has been said in this
judgement, to take all reasonable steps, by way of regulations or
otherwise, to ensure that
full information concerning the permanent
nature of any same-sex life partnership is disclosed.”
15.
It is clear from the above cases that in order to merit recognition,
a relationship must have attained a sufficient though indefinable
core of stability and commitment.
16.
On that premise, Mr Rameetse on behalf of the plaintiff, submitted
that the plaintiff had made a proper case for the relief
sought. He
submitted further that the evidence of the plaintiff proves that the
relationship that existed between herself and the
deceased was of a
nature that established a reciprocal duty of maintenance and from
which a tacit agreement of mutual support can
be inferred.
17.
Mr Mojamabu on behalf of the defendant, argued on the other hand that
the facts that are alleged to establish the nature of
the
relationship that supposedly gave rise to the reciprocal duty of
maintenance are not only less probable but also insufficient
in that
the essential facts have not been established.
18.
Both parties based their argument on the principle enunciated in
Paixão. Therefore the next issue to be determined is
whether
there was such an agreement express or to be tacitly inferred from
the alleged surrounding circumstances and how the parties
had
conducted their relationship.
19.
It is therefore necessary to briefly set out the facts in Paixão.
The deceased who was married according to Portuguese
law, involved
with Mrs Paixão from 2002. During October 2013 he 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 continued
living with Mrs
Paixão and her two daughters after his recovery. The court
found their living together to have been in a
mature, committed and
loving family relationship accepted by relatives, community and
friends as a family unit. The relationship
was attested to not only
by the deceased’s mother and Mrs Paixão’s
daughters, but by a close family friend from
the community who was
also involved in the arrangements of the couple’s wedding.
20.
During their cohabitation the deceased paid for everything. When Mrs
Paixão was retrenched, the deceased too care of
her and her
daughters. He took full responsibility for the family’s food,
holidays, university and school fees of Mrs Paixão’s
daughters. He assured Mrs Paixão that he would marry her as
soon as his divorce from his wife was finalised.
21.
In June 2005 two significant events occurred. First, the deceased
divorced his wife according to South African Law. He however
felt
constrained not to marry Mrs Paixão before his divorce was
also concluded 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 provided that in the event of their
simultaneous deaths theirs assets are to
be consolidated and Mrs
Paixão’s daughters were to inherit in equal shares.
22.
In June 2007 the deceased’s divorce from his wife was
concluded. The deceased and Mrs Paixão began making
arrangements
to marry. They travelled to Portugal where he introduced
her to his family who approved of their relationship. The date for
the
wedding which was to be celebrated in Portugal was set and
flights details arranged. Unfortunately, the deceased died before
they
could make their journey.
23.
In
casu
, the only evidence to prove that there existed a
contractual reciprocal duty to support each other, or put
differently, that the
deceased had a legal duty to support the
plaintiff, is that: the couple stayed together in a flat and they
intended to get married
after the plaintiff obtain employment. Other
issues like paying rent and buying groceries can be regarded as
ordinary or normal
support.
24.
The plaintiff tried to establish that her cohabitation with the
deceased was known to the deceased’s family. To this end
she
called Dakalo to testify. Dakalo’s evidence does not take the
plaintiff’s case any further. He testified and confirmed
that
the couple stayed together. I am not sure whether he knew of their
plan to get married because he did not testify to that
effect.
25.
In my view, the facts in
casu
are distinguishable to the facts
in Paixão’s case in that:
(i) there is no evidence that the
deceased ever introduced the plaintiff to his family;
(ii) no evidence that the parties’
intention to marry each other was made known to any of their
families. One would have expected
the deceased to tell his parents
and/or his brother of his intention to marry the plaintiff if it is
was their intention to be
permanent life partners;
(iii) no arrangements were made for
the wedding or negotiations for lobola;
(iv) there is no evidence that the
parties made financial provision for each other in case of death;
(v) although the plaintiff stated that
she was not employed and therefore depended on the deceased’s
income, there is evidence
that she was actually employed at Sanlam
(her salary slip proves that her income during January 2016 had
doubled from what she
earned during July 2015. Therefore she was not
and is not solely depended on the deceased’s income, she has
qualifications
that can enable her to earn a decent salary.
26.
It is common cause that there was no express agreement between the
plaintiff and the deceased that created the reciprocal duty
of
support. The plaintiff relies on a tacit agreement. The conduct of
the parties must be such that it justifies an inference that
there
was consensus between them. In my view, there are no enough facts to
prove the existence of a permanent life partnership.
I am not
satisfied that the plaintiff discharged the onus in proving a legally
enforceable duty of support on the part of the deceased.
27.
In conclude this judgement I refer to another issue raised by the
defendant during argument relating to the plaintiff’s
failure
to allege her
locus standi
in both the particulars of claim
and section 19 (f) affidavit.
28.
Rule 17 4 (b)
[8]
provides that every summons shall set forth the full names, gender,
occupation and residence or place of business of the plaintiff.
In
principle, a plaintiff must aver and prove that she has
locus
standi
in
iudicio
.
The object of the subrule is to require a plaintiff to furnish
sufficient details to enable the court and the defendant to establish
whether or not the plaintiff has the requisite
locus
standi
to sue.
29.
In
casu
, the plaintiff stated her names, gender and residence
without stating in details her relationship with the deceased. It is
only
in the affidavit where she described herself as a spouse of the
deceased. During her testimony, the plaintiff denied residing
or having resided at the address stated in both her particulars of
claim and affidavit. She further denied knowing any person residing
at that address. However it turned out that this address is actually
the address of Dakalo. In my view, whether the plaintiff stayed
at
that address or not, is of no importance to the present proceedings.
Of importance is that she failed to establish in
her evidence
that there existed relationship which was a kin to a marriage and
which gave rise to a reciprocal duty to support
30.
In the circumstances, the following order is made:
1. The plaintiff in her personal
capacity has no locus standi to claim an amount for loss of support
from the defendant.
2. The plaintiff is ordered to pay
defendant’s costs.
MOKGOHLOA
DJP
REPRESENTATIONS
1.
For the
Plaintiff : Mr Rameetse
Instructed
by : Thobela Attorneys
2.
Counsel for
the defendant : Mr Mojamabu
Instructed
by : Rachoene Inc Attorneys
3.
Date of
hearing : 30 March 2017
4.
Date handed
down : 29 June 2017
[1]
Brook v Minister of Safety and Security
2009 (2) SA 94
(SCA) [6]
[2]
88 oF 1984
[3]
2012 (6) SA
377
(SCA)
[4]
Ibid at para 29
[5]
2002 (6) SA 1 (CC)
[6]
2004 (1) SA 359 (SCA)
[7]
2000 (2) SA 1 (CC)
[8]
Uniform Rules of Court