Brief Summary

Common law — Dependants’ action — Recognition of same-sex partner’s claim for loss of support — Appellant and deceased were partners in a same-sex union, with the deceased providing financial support until his death in a motor vehicle accident — Appellant claimed damages for loss of support and funeral expenses from the Road Accident Fund — Court a quo dismissed claims, leading to appeal — Court held that the common law should be developed to recognize a contractual duty of support owed by the deceased to the appellant, allowing the claim for loss of support to proceed.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were a delictual claim against the Road Accident Fund for compensation arising from the negligent driving of a motor vehicle that caused the death of a third party, with the claimant advancing a dependant’s action for loss of support and a related claim for funeral (burial/cremation) expenses under the Road Accident Fund Act 56 of 1996.

The parties were Antonie Michael du Plessis (plaintiff in the trial court and appellant on appeal) and the Road Accident Fund (defendant in the trial court and respondent on appeal). The deceased was Albert Ernest Clack, the appellant’s same-sex life partner, who was killed in a motor vehicle collision on 1 September 1999.

Procedurally, the parties agreed that if the appellant had a legally cognisable claim, the respondent would be liable to pay 75% of the legally recoverable damages proven. By consent, the trial court made an order under Rule 33(4) separating and referring for determination only the legal issues whether (i) the appellant’s loss-of-support claim was legally recognised and (ii) the appellant had a right to claim burial expenses. The court a quo dismissed both claims and refused leave to appeal. The appeal proceeded to the Supreme Court of Appeal with leave granted by that court.

The general subject-matter of the dispute concerned whether South African common law (as it interacts with the Road Accident Fund’s statutory liability) recognises a loss-of-support claim by a surviving partner in a permanent same-sex life relationship, and whether an heir has a recoverable claim for funeral expenses incurred as a consequence of a wrongful death.

Material Facts

It was common cause, for purposes of the separated issues, that the appellant and the deceased were partners in a same-sex union, and that the deceased died in a motor vehicle accident. It was also common cause that the respondent’s statutory liability depended on whether the loss claimed was legally recoverable at common law, because the statutory framework makes compensation subject to limitations including the exclusion in section 19(a) where there would have been no common-law liability.

On the facts relied upon by the Supreme Court of Appeal, the appellant and the deceased lived together continuously from March 1988. In August 1988, they participated in a ceremony intended to be as close as possible to a marriage ceremony, before numerous witnesses and conducted by a person who was a marriage officer (though not acting in that capacity). The evidence accepted by the Court included that they would have married had the law permitted it, that their relationship was stable and permanent, and that they were acknowledged by family and friends as a couple.

In September 1994, the appellant was medically boarded. Before boarding he earned approximately R800 per month less than the deceased. After boarding he received a disability pension insufficient for his needs. The couple continued to pool their incomes, and the deceased’s salary was considerably higher than the appellant’s pension. For approximately the five years before the deceased’s death, the deceased financially maintained the appellant to a large extent. The Court relied on the appellant’s evidence that the deceased promised to continue supporting him after the boarding and in fact did so until death.

The Court also relied on the fact that the partners agreed to make wills bequeathing their estates to each other and did so: the appellant executed his will on 28 July 1988 and the deceased on 31 July 1989, each appointing the other as sole heir. The evidence further established that the appellant was the deceased’s sole heir.

A disputed aspect in argument (rather than in factual evidence) was whether these facts could support an inference of a legally enforceable duty of support in the absence of a legally recognised marriage, and whether the appellant had proven a basis to claim funeral expenses personally paid. The Court treated the relationship facts as supporting an inference that the parties undertook reciprocal support, and addressed the funeral-expenses proof point by formulating relief in declaratory form.

Legal Issues

The central legal questions were whether the appellant, as the surviving partner in a permanent same-sex life partnership similar in other respects to marriage, could claim damages for loss of support from the Road Accident Fund, given that the Fund’s liability is limited by the requirement that the damages be legally recoverable and by the common-law requirement of a legally enforceable duty of support.

A related legal question was whether the appellant, as sole heir, had a right to recover funeral expenses incurred in burying the deceased, including how such a claim should be framed consistently with section 18(4) of the Road Accident Fund Act, which limits funeral compensation to necessary actual costs of cremation or interment.

The dispute was primarily one of law and the application of legal principles to established facts, with an additional component involving a value judgment (wrongfulness / legal convictions of the community / boni mores) as informed by constitutional norms in deciding whether the dependant’s interest was worthy of legal protection and whether the common law should be developed incrementally.

Court’s Reasoning

The Supreme Court of Appeal approached the loss-of-support claim through the established structure of the dependant’s action. It relied on authority that a dependant’s claim for loss of support constitutes pure economic loss and is valid where the deceased owed the claimant a legally enforceable duty of support, and where the claimant’s interest in receiving that support is worthy of legal protection against negligent interference. The Court treated Santam Beperk v Henery and Amod v Multilateral Motor Vehicle Accidents Fund as formulating and applying that approach, including the requirement that the right to support be one the law should protect by allowing a dependant’s action against the wrongdoer.

On the first requirement, the Court examined whether the appellant had shown a legally enforceable duty of support owed by the deceased. It accepted that while a reciprocal duty of support is a consequence of marriage, South African law at the time recognised marriage as a conjugal relationship between opposite-sex spouses, and the appellant did not ask the Court to expand the definition of marriage itself. Instead, the Court considered whether, on the facts, the same-sex partners had undertaken a contractual duty of support.

In determining this, the Court drew a factual inference from the totality of the relationship: the couple’s long-term cohabitation, the public “marriage-like” ceremony before witnesses, their mutual intention to approximate marriage “in all respects” available to them, their pooling of income, their mutual wills appointing each other as sole heirs, and the deceased’s express assurance and consistent performance of financial support after the appellant was medically boarded. The Court concluded that these facts supported the probability that the parties tacitly undertook reciprocal duties of support, and that the deceased undertook to support the appellant with the intention of being legally bound. The duty was characterised as contractual.

On the second requirement—whether the duty was worthy of protection—the Court framed the enquiry as a determination of wrongfulness in the sense used for pure economic loss: whether, in the light of prevailing boni mores (legal convictions of the community), the invaded interest should be protected. The Court adopted the view, articulated in delictual duty-of-care jurisprudence, that recognition of a legal duty involves a value judgment influenced by multiple factors and that those factors evolve with community attitudes.

The Court then situated that value judgment within the constitutional framework. Relying on Carmichele v Minister of Safety and Security and Another and Minister of Safety and Security v Van Duivenboden, it treated the “legal convictions of the community” as necessarily informed by the norms and values embodied in the Constitution, particularly equality and human dignity. It focused on sections 9 and 10 of the Constitution and noted the specific relevance of sections 9(4) and 9(5) regarding unfair discrimination on grounds including sexual orientation, with discrimination presumed unfair unless shown fair.

To assess whether exclusion of same-sex permanent partners from the dependant’s action could be constitutionally justified, the Court relied heavily on Satchwell v President of the Republic of South Africa, where the Constitutional Court held that denying benefits to same-sex partners in a permanent life relationship similar to marriage, including acceptance of a duty of support, constituted unfair discrimination. The Supreme Court of Appeal reasoned that if legislation conferring benefits on spouses but not on similarly situated permanent same-sex partners was unfairly discriminatory, then the common law’s conferral of a loss-of-support action on spouses while denying it to comparable same-sex partners likewise amounted to unfair discrimination. The Court noted that no argument was advanced that such discrimination could be justified under section 36 of the Constitution, and stated that such a contention would have been untenable.

The Court further addressed the institutional question whether development of the common law was a matter for the legislature rather than the courts. It rejected the trial court’s approach on this point. It reasoned, first, that the extension sought was consistent with the principles already articulated in Henery and Amod, and secondly that the Constitution empowers and in some circumstances obliges courts to develop the common law. The Court invoked section 173 (inherent power to develop the common law in the interests of justice), section 8 (duty to give effect to Bill of Rights and develop the common law where legislation does not), and section 39(2) (promotion of the spirit, purport and objects of the Bill of Rights when developing the common law). Consistently with Carmichele, the Court treated development as appropriate where the common law is deficient in promoting constitutional objectives, while acknowledging the caution that major law reform is primarily for the legislature and that judicial development should be incremental.

Applying that approach, the Court characterised recognition of the dependant’s action for a partner in a same-sex permanent life relationship, where the deceased undertook a contractual duty of support, as an incremental development that aligns the common law with constitutional values and with developments in legislation and constitutional jurisprudence acknowledging same-sex partnerships. It expressly confined its conclusion to the case before it, and explicitly left open whether the dependant’s action should be extended to unmarried heterosexual relationships or other relationships.

On funeral expenses, the Court accepted authority that a person who improperly causes another’s death is liable to the heir for funeral expenses, and that where heirs have laid out funeral expenses on their own account, an action lies at their suit. It considered the respondent’s argument that the appellant had not shown he personally incurred funeral costs, and held that an appropriately framed declaratory order would address that difficulty. The Court tailored the relief to the statutory limitation in section 18(4) of the Road Accident Fund Act, restricting recoverability to the “necessary actual costs” of cremation or interment incurred by the appellant.

Outcome and Relief

The Supreme Court of Appeal upheld the appeal and set aside the order of the court a quo. It declared that the Road Accident Fund was liable to compensate the appellant for 75% of (i) such damages for loss of support as the appellant proves he suffered in consequence of the deceased’s death in the collision of 1 September 1999, and (ii) such necessary actual costs to cremate the deceased or to inter him in a grave as were incurred by the appellant.

The respondent was ordered to pay the appellant’s costs of appeal, including the costs of two counsel. The respondent was also ordered to pay the costs of the hearing before the trial court, while the further costs of the action were reserved.

Cases Cited

Union Government v Warneke 1911 AD 657.

Abbott v Bergman 1922 AD 53.

Santam Beperk v Henery [1999] ZASCA 5; 1999 (3) SA 421 (SCA).

Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA 1319 (SCA).

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC).

National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC).

Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC).

Knop v Johannesburg City Council 1995 (2) SA 1 (A).

Minister of Law and Order v Kadir [1994] ZASCA 138; 1995 (1) SA 303 (A).

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) [2001] ZACC 22; 2001 (4) SA 938 (CC).

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA).

Brink v Kitshoff NO [1996] ZACC 9; 1996 (4) SA 197 (CC).

Fraser v Children’s Court, Pretoria North and Others 1997 (2) SA 261 (CC).

President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC).

Dawood, Shalabi, Thomas and Others v Minister of Home Affairs [2000] ZACC 8; 2000 (3) SA 936 (CC).

Olitzki Property Holdings v State Tender Board and Another 2001 (3) SA 1247 (SCA).

Premier of the Western Cape v Fair Cape Property Developers (Pty) Ltd [2003] 2 All SA 465 (SCA).

Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA).

Du Toit and Another v Minister of Welfare and Population Development and Others (Lesbian and Gay Equality Project as amicus curiae) [2002] ZACC 20; 2003 (2) SA 198 (CC).

J and Another v Director General, Department of Home Affairs and Others [2003] ZACC 3; 2003 (5) BCLR 463 (CC).

Young v Hutton 1918 WLD 90.

Rondalia Assurance Corporation of South Africa Limited v Britz 1976 (3) SA 243 (T).

Evins v Shield Insurance Company Limited 1980 (2) SA 814 (A).

Vaughan NO v South African National Trust and Assurance Company Limited 1954 (3) SA 667 (C).

Farr v Mutual and Federal Insurance Company Limited 2000 (3) SA 684 (C).

Ghaidan v Godin-Mendoza [2003] 2 WLR 478 (Court of Appeal of England and Wales).

Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 (House of Lords).

Bellinger v Bellinger (2003) BHRC 127 (House of Lords).

Goodwin v United Kingdom [2002] ECHR 588; (2002) 13 BHRC 120 (European Court of Human Rights).

Baehr and Others v Lewin 852 P2d 44 (1993) (Supreme Court of Hawaii).

Brause v Bureau of Vital Statistics 1998 WL 88743 (Alaska).

Baker v State 744 A2d 864 (1999) (Supreme Court of Vermont).

Quilter v Attorney-General [1998] 1 NZLR 523 (Court of Appeal of New Zealand).

Halpern v Canada (Attorney-General) (2003) 225 DLR (4th) 529 (Court of Appeal for Ontario).

Hendricks v Quebec (Procureur général) (Superior Court of Montreal, 6 September 2002, unreported as described in the judgment).

Lawrence et al v Texas (Supreme Court of the United States of America, “not yet reported” as described in the judgment).

Legislation Cited

Road Accident Fund Act 56 of 1996, sections 17, 18(4) and 19(a).

Divorce Act 70 of 1979, section 7(2).

Judges’ Remuneration and Conditions of Employment Act 47 of 2001, section 9.

Aliens Control Act 96 of 1991, section 25(5).

Child Care Act 74 of 1983.

Guardianship Act 192 of 1993.

Children’s Status Act 82 of 1987, section 5.

Constitution of the Republic of South Africa, 1996, sections 8, 9, 10, 36, 39(2) and 173.

Rules of Court Cited

Uniform Rules of Court, Rule 33(4).

Held

The Supreme Court of Appeal held that the appellant proved that the deceased undertook a contractual duty of support towards him arising from their permanent same-sex life relationship that was similar in other respects to marriage. The Court held further that the appellant’s right to such support was worthy of legal protection, and that limiting the dependant’s action to heterosexual spouses while excluding permanent same-sex partners with reciprocal duties of support constituted constitutionally unacceptable unfair discrimination, in the absence of justification.

The Court therefore held that the dependant’s action for loss of support extends to a surviving partner in a same-sex permanent life relationship similar in other respects to marriage where the deceased owed that partner a contractual duty of support. The Court also held that an heir has a right to recover funeral expenses expended by the heir, with the Fund’s liability limited to the necessary actual costs of cremation or interment as contemplated by the Road Accident Fund Act.

LEGAL PRINCIPLES

A dependant’s action for loss of support, being a claim for pure economic loss, is available where the deceased owed the claimant a legally enforceable duty of support and where the claimant’s interest in receiving that support is worthy of protection by imposing delictual liability on the wrongdoer.

A contractual duty of support may be inferred on the facts in a permanent, stable same-sex life partnership, including where the parties’ conduct and arrangements (such as a public commitment ceremony, pooling of income, mutual wills, and express undertakings of support) justify the inference that they undertook reciprocal support obligations with an intention to be legally bound.

The wrongfulness/value-judgment enquiry (the boni mores or legal convictions of the community) in determining whether an interest is worthy of legal protection must be informed by the norms and values of the Constitution, particularly the rights to equality and human dignity, and the constitutional prohibition of unfair discrimination on the ground of sexual orientation.

Courts have constitutional power and, where appropriate, an obligation to develop the common law to promote the spirit, purport and objects of the Bill of Rights, and such development may properly take the form of incremental change that aligns existing common-law principles with constitutional requirements.

An heir may recover funeral expenses occasioned by a wrongful death, and where the claim is advanced against the Road Accident Fund it must be confined to the necessary actual costs of cremation or interment, consistent with the statutory limitation.

Du Plessis v Road Accident Fund (443/2002) [2003] ZASCA 86 (19 September 2003)