Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening)

• Jurisdiction: South Africa
• Judge: Mahomed CJ; Olivier JA; Zulman JA; Farlam AJA; Madlanga AJA
• Judgment Date: 29 September 1999
• Citation: 1999 (4) SA 1319 (SCA)
• Docket Number: 444/98
• Hearing Date: 13 September 1999
• Counsel: M S Omar (Attorney) for the appellant. C J Pammenter SC (with him P A C Rowan) for the respondent. M Chaskalson (with him A Kalla) for amicus curiae (the Commission for Gender Equality).
• Court: Supreme Court of Appeal

Mahomed CJ:

[1] The appellant instituted an action against the respondent in the Court a quo for the payment of damages suffered by her as a result of the death of the deceased in a motor car accident. From the pleadings and J

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the agreed statement in terms of Rule 33(1) the following appear as common A cause between the parties:

(a)

The deceased died in a motor collision on 25 July 1993 between a Toyota 'bakkie' driven by one M Biyela and an Opel Monza driven by the deceased.

(b)

The sole cause of this collision was the negligent driving of Biyela. B

(c)

The deceased and the appellant were married according to Islamic law on 18 April 1987.

(d)

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

(e)

The Islamic marriage between the appellant and the deceased was not registered as a civil marriage in terms of the provisions of the Marriage Act of 1961.

(f)

The appellant duly lodged a claim against the D respondent for compensation for loss of support by reason of the death of the deceased pursuant to the provisions of Article 62 of the Agreement establishing the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989.

(g)

The respondent did not object to the procedural E validity of this claim or to the claim made on behalf of the children of the marriage but it nevertheless repudiated the appellant's own claim for loss of support.

[2] On these facts the Court a quo was required to resolve the following issue:

'Is the [respondent] legally liable to compensate [the F appellant] for loss of support of her deceased husband to whom she was married by Islamic Rites?'

[3] The Court a quo (per Meskin J) answered that question in the negative, but counsel appearing before us on appeal were agreed that, if it was wrong in that conclusion, the appellant was entitled to judgment in the sum of R250 000 which was the agreed sum of damages suffered by her in consequence of the loss of G her husband's support.

[4] Before the present appeal was heard, the Commission for Gender Equality applied to be and was admitted as an amicus curiae. It was represented at the hearing by Mr M Chaskalson (with him Miss A Kalla) both acting H pro amico and the Court wishes to express its appreciation to counsel for the full and competent arguments which they advanced in support of their submissions.

[5] Both Mr Omar who appeared for the appellant and Mr I Chaskalson contended that on a proper analysis of the existing relevant common law rules of application, a claim for loss of support made on behalf of a Muslim widow in the position of the appellant is sound in law. In the alternative it was submitted that, if the existing state of the common law did not support such a claim, the common law should properly be developed to accommodate the claim in terms of s 35(3) of the interim J

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Constitution (the Constitution of the Republic of South Africa Act 200 of A 1993) (which was of application when the action in the Court a quo commenced).

The historical origins and evolution of the dependant's action in the common law

[6] The death of a breadwinner who has a duty to support the B dependants of the breadwinner undoubtedly causes loss to such dependants. These dependants should in equity therefore be able to recover such loss from a party who has unlawfully caused the death of the breadwinner by any act of negligence or other wrongful conduct. This is the rationale for the dependant's action. That remedy was C unknown in Roman law. It came, however, to be recognised and firmly entrenched in Roman-Dutch law, under the influence of the Germanic custom concerning the institution of the 'zoengeld' and the philosophy of natural law as developed by medieval and sixteenth century theologians. [1] It constitutes the D juristic basis for any claim which the appellant might have against Biyela and therefore against the respondent which is only obliged to compensate the dependants of a deceased for losses suffered by them in consequence of a motor accident caused by the negligent or other unlawful conduct of the driver of the relevant motor vehicle, if such a driver would have been liable for such losses at common law. [2] E

[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 . . . .' [3] This and other passages in F 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. [4] 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 G 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'). [5]

[8] What the old writers appear anxious to recognise is that members of the family of the deceased had a right to enforce H a claim for the loss of

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such support resulting from the death of the deceased (or injury to him) A caused by the unlawful acts of the defendant. This was a right worthy of public recognition and protection by the law.

[9] For this reason the Court in Union Government B (Minister of Railways and Harbours) v Warneke [6] was able to recognise the dependant's claim of a husband for the loss of support of his wife. The Court recognised that no dependant's action at the instance of the husband was mentioned in the old authorities, but this was because 'it never occurred to the jurists of the seventeenth century to extend this remedy to a husband'. It was held that there was no reason why our Courts should not adapt the lex Aquilia to the conditions of modern life, in this respect 'as far as that can be done without doing violence to its principles'. [7] C

[10] Two important propositions appear clearly from the case of Union Government v Warneke. The first is that the dependant's action was a flexible remedy, which needed to be adapted to modern conditions. The second is that in determining the process of adaptation regard had to be had to the rationale for the remedy, which D was to afford relief to dependants whom the deceased had a legal duty to support, even if the duty arose out of natural law. Considerations of equity and decency informed the duty of support in Roman-Dutch law. [8]

[11] The flexibility of the dependant's action has, since the E case of Union Government v Warneke, repeatedly been utilized to afford the benefit of the remedy to classes not expressly mentioned in the old authorities. In Abbot v Bergman [9] it was extended to accommodate the claim of a husband for the loss of support of his injured wife. In Santam Bpk v Henery [10] it was used to F uphold the claim of a divorcee who was not even married to the deceased at the time of the death of the deceased but was receiving maintenance payments from him pursuant to an order of maintenance made in Court and in Zimnat Insurance Co Ltd v Chawanda [11] the Supreme Court of Zimbabwe held that a widow married to the deceased by African customary law was also entitled to the protection of the dependant's action. G

[12] Santam Bpk v Henery is the most recent reported decision of this Court relevant to the proper approach to be adopted in assessing the validity of a dependant's claim for loss of support. The judgment of Nienaber JA who wrote on behalf of a unanimous Court manifests the following: [12] H

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(a)

The claimant for loss of support resulting from the A unlawful killing of the deceased must establish that the deceased had a duty to support the dependant.

(b)

It had to be a legally enforceable duty.

(c)

The right of the dependant to such support had to be B worthy of protection by the law.

(d)

The preceding element had to be determined by the criterion of boni mores.

(e)

Thus approached, the claim of a widow who had been divorced at the date of the death of the deceased but who had been entitled to support from him, by virtue of an order of maintenance made by a court, could be accommodated within the legitimate parameters of C the dependant's action in the common law because:

(i)

the deceased had a duty to support the claimant who was his former wife;

(ii)

that duty was legally enforceable; D

(iii)

the right of the former wife to such support was a right which was worthy of protection by the law, for the purposes of the dependant's action; and

(iv)

the last assessment was justified by the criterion of boni mores.

[13] On the approach adopted above, it accordingly becomes E necessary to determine whether the claim of the appellant in the present matter satisfies the relevant tests which have to be applied in assessing its legal legitimacy.

[14] The first requirement in para [12] appears clearly to be F satisfied, because the agreed statement between the parties records that the deceased had a duty to support the appellant 'in terms of the Islamic marriage which is a contract'.

[15] Moreover, it was, in my view, a duty which was legally G enforceable and therefore satisfies the second requirement. In his fair and able argument, Mr Pammenter SC who appeared for the respondent properly conceded...