Amod v Multilateral Motor Vehicle Accidents Fund

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Didcott J, Goldstone J, Kriegler J, Madala J, Mokgoro J, O'Regan J, Saches J, Yacoob J
• Judgment Date: 27 August 1998
• Citation: 1998 (4) SA 753 (CC)
• Docket Number: CCT 4/98
• Hearing Date: 21 May 1998
• Counsel: MS Omar for the applicant CJ Pammenter (with him PAC Rowan) for the respondent M Chaskalson for the amicus curiae (the Commission on Gender Equality)
• Court: Constitutional Court

Chaskalson P : H

[1] The applicant has applied for leave to appeal directly to this Court against a judgment delivered by Meskin J in the Durban and Coast High Court. [1] The applicant claimed damages in the High Court for loss of support arising out of the death of her husband in a motor vehicle collision in 1993. The matter was dealt with there as a special case in terms of Uniform Rule of Court 33(1). [2] I

Chaskalson P

Proceedings in the High Court A

[2] The applicant's action was based on the provisions of the Multilateral Motor Vehicle Accidents Fund Act ('the MVA Act'). [3] For the purposes of the special case the parties agreed inter alia that:

1.

The applicant and the deceased were married in accordance with Islamic law on 18 April 1987. B

2.

This union was not registered as a civil marriage in terms of the provisions of the Marriage Act. [4]

3.

In terms of the Islamic marriage, which is a contract, the deceased, as husband, was obliged to maintain and support the applicant during the course of the marriage and until termination thereof by death or C divorce; and in fact did so.

4.

The deceased died in a motor vehicle accident on 25 July 1993.

5.

The deceased's death was caused by the negligence of the driver of the other vehicle involved in the collision.

[3] The question which the High Court was asked to decide was whether the defendant was legally liable on the D basis of these facts to compensate the applicant for the loss of support which she had suffered as a consequence of her husband's death. The respondent would be liable only if the driver whose negligence caused the death of her husband would have been liable for such damages at common law if the MVA Act had not been passed. [5] E

[4] The Appellate Division [6] held in Suid-Afrikaanse Nasionale Trust en Assuransie Maatskappy Bpk v Fondo [7] that a claim for damages for loss of support caused by the death of a spouse was allowed by the common law only in cases where the union in question constituted a lawful marriage in terms of the common law. Unions which were polygamous or potentially polygamous were not lawful at common law. It followed that a F spouse married according to African customary law (which permitted polygamous marriages) was not entitled to claim damages for the loss of support which she suffered as a result of the death of her husband. The Court held further that the fact that the deceased spouse had been under a statutory duty to maintain his wife during the G subsistence of their customary marriage was not in itself sufficient to found a claim for such damages.

[5] The rule in Fondo was applied in Nkabinde v SA Motor & General Insurance Co Ltd [8] to a claim by a wife married according to African customary law. The wife sought unsuccessfully to avoid the consequences H

Chaskalson P

of that decision by relying on an agreement which she and her deceased husband had concluded prior to their A marriage, that the husband would be liable to maintain and support her in consideration for her marrying him. The Court declined to extend the Aquilian action (which forms the basis of the common law claim) to include claims for damages based solely on contract. [9] B

[6] In Ismail v Ismail [10] the Appellate Division reaffirmed the rule by holding that marriages contracted in accordance with Islamic law are not lawful marriages in terms of the common law, because such marriages are potentially polygamous.

[7] The applicant contended in the High Court that this line of authority was no longer good law since public C policy had evolved sufficiently in subsequent years for the Court to depart from these decisions. In particular it was submitted that the common law should now be developed in accordance with s 35(3) of the interim Constitution, [11] or s 39(2) read with s 8(3) of the 1996 Constitution, [12] to recognise that a duty of support which D flowed from an Islamic marriage was sufficient to found the liability for which the applicant contended. It was submitted further that the effect of this recognition should be retroactive in the sense that it should grant the applicant relief in spite of the fact that her cause of action arose prior to the commencement of the interim E Constitution on 27 April 1994.

Chaskalson P

[8] The events in the case spanned three constitutional orders. As indicated above the accident occurred before A the interim Constitution was in force. The action was instituted in the High Court during the lifespan of the interim Constitution but was heard and decided after the 1996 Constitution had come into effect. [13] Since legal proceedings were pending before the High Court on 4 February 1997, this is a matter governed by item 17 of B Schedule 6 of the 1996 Constitution [14] which provides that, unless it is in the interests of justice, the matter shall be disposed of as if the 1996 Constitution had not been enacted. Meskin J came to the conclusion that it would be in the interests of justice to deal with the matter in terms of the 1996 Constitution. [15] C

[9] Nonetheless Meskin J found that, on a proper construction of s 39(2) read with s 8(3) of the 1996 Constitution, Courts were empowered merely to amplify existing legal principles in circumstances where the common law was silent in giving effect to a particular right and where legislation did not make good this deficiency. In his view the 1996 Constitution did not authorise Courts to eliminate established rules from the D common law; this, he held, was the responsibility of the Legislature. [16] Hence Meskin J held that the respondent was not liable to compensate the applicant for the loss of support which she had suffered as a consequence of the death of her husband because their union had not constituted 'a lawful marriage'. [17] In the light of this conclusion it E is difficult to understand what 'interest of justice' was served by dealing with the matter in terms of the 1996 Constitution.

The application for leave to appeal

[10] The applicant initially applied to the High Court for leave to appeal to the Supreme Court of Appeal against F that judgment. Due to the untimely death of Meskin J the application was heard by Combrinck J. Apparently as a result of questions posed by the learned Judge during the course of the hearing as to whether the appeal should be noted to the Supreme Court of Appeal or to this Court, the applicant formulated a fresh application in which she sought a certificate in terms of Constitutional Court Rule 18. [18] The parties and Combrinck J were G apparently of the view that if there was to be an appeal it should be brought to this Court and not the Supreme Court of Appeal. The application for a 'positive' certificate was opposed, however, on the grounds that there were no reasonable prospects of success. Combrinck J, whilst noting that H

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he had not had the benefit of detailed argument on the matter, endorsed the views which had been expressed by A Meskin J and declined to furnish a 'positive' certificate. It was not likely, in his view, that this Court would reverse or materially alter the decision that had been given.

[11] Notwithstanding the 'negative' certificate the applicant applied to this Court in terms of Rule 18(f) for leave B to appeal (as she was entitled to do). [19] The application raised a number of important and difficult issues concerning the jurisdiction of the Supreme Court of Appeal and the Constitutional Court. In the light of these difficulties the application for leave to appeal was set down for hearing before this Court and directions were given requiring the parties to consider and to address argument to the Court on two principal issues: C

'(a)

Does the Constitutional Court have jurisdiction to hear an appeal in this matter? If so, does the Supreme Court of Appeal also have jurisdiction to hear the appeal?

(b)

If both the Constitutional Court and the Supreme Court of Appeal have jurisdiction, is this a matter in D which the appeal should be noted directly to the Constitutional Court?'

[12] The directions also called upon the parties to deal with the following matters in their arguments:

'(a)

In view of the fact that the accident on which the applicant's cause of action is based occurred on 25 E July 1993 is it contended that the Bill of Rights in either the interim Constitution or the 1996 Constitution is directly applicable to the applicant's claim, or does the claim depend entirely upon the development of the common law?

(b)

Insofar as the applicant's claim depends upon the development of the common law, is it to be dealt with F in terms of the interim Constitution, the 1996 Constitution, or the common law jurisdiction of the Courts which exists independently of the Constitution?

(c)

If the applicant relies on the development of the common law under the interim Constitution: G

1.

Is the question whether reliance can be placed on that Constitution in respect of a cause of action which arose before the Constitution was in force a matter relating to the...