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

• Jurisdiction: South Africa

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

1999 (4) SA p1319

Citation	1999 (4) SA 1319 (SCA)
Case No	444/98
Court	Supreme Court of Appeal
Judge	Mahomed CJ; Olivier JA; Zulman JA; Farlam AJA; Madlanga AJA
Heard	September 13, 1999
Judgment	September 29, 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).

Flynote : Sleutelwoorde

Motor vehicle accidents — Compensation — Claim for in terms of G Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 — Dependants claiming for loss of breadwinner — Dependant widow married to breadwinner in terms of Islamic law — Marriage not registered as civil marriage in terms of Marriage Act 25 of 1961 — Marriage de facto monogamous — Right of spouse to support in such union worthy of public recognition and protection by law — Multilateral Motor Vehicle Accidents Fund liable to compensate widow for loss of support of husband. H

Negligence — Action for damages — For fatal injuries — Loss of support — Action by widow married to deceased breadwinner in terms of Islamic law — Marriage not registered as civil marriage in terms of Marriage Act 25 of 1961 — Marriage de facto monogamous — Right I of spouse to support in such union worthy of public recognition and protection by law — Dependant to show that (1) deceased had legally enforceable duty to support dependant, (2) that duty arose from solemn marriage in accordance with tenets of recognised and accepted faith and (3) duty deserved recognition and protection for purposes of dependant's action. J

1999 (4) SA p1320

Headnote : Kopnota

The appellant instituted an action against the respondent in a A Provincial Division for payment of damages suffered by her as a result of the death of her husband in a motor car accident. The deceased and the appellant were married according to Islamic law in April 1987. The marriage was not registered as a civil marriage in terms of the Marriage Act 25 of 1961. The appellant duly lodged a claim against the respondent for loss of support pursuant to the provisions of art 62 of the Agreement Establishing the Multilateral Motor Vehicle Accidents B Fund in the Schedule to the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989. The issue the Court a quo had to resolve was whether the respondent was bound to compensate the appellant in view of the fact that the appellant and the deceased were married according to Islamic rites. It was answered in the negative. Before the appeal to the Supreme Court of Appeal was heard, the second appellant, C the Commission for Gender Equality, was admitted as amicus curiae. Counsel for the respondent, though conceding that the appellant's claim for support against the deceased was not excipiable, nevertheless contended that her claim against the respondent had to fail because the marriage between her and the deceased, being 'potentially polygamous', did not enjoy the status of marriage in the D civil law and any legal duty to support was thus a contractual consequence of the union and not an ex lege consequence of the marriage per se. The Court set out the evolution of the dependant's action in the common law (paras [6] - [12] at 1324B-1326E) and

Held, that the correct approach was not to ask whether the marriage was lawful at common law or not but to enquire whether or not E the deceased had a legal duty to support the appellant during the subsistence of the marriage and if so whether the right of the widow was in the circumstances a right which deserved protection for the purposes of the dependant's action. (Paragraphs [19] and [21] at 1327E-G/H.)

Held, further, that, if regard was had to the fact that the marriage between the appellant and the deceased was a de facto monogamous marriage; that it was contracted according to the tenets of a major religion; and that it involved a public ceremony, F special formalities and onerous obligations for both parents in terms of the applicable principles of Islamic law, it indeed constituted a right that deserved such protection. (Paragraph [20] at 1327G/H-H/I.)

Held, further, that the insistence that the duty of support G which a serious de facto monogamous marriage imposed on the husband was not worthy of protection could only be justified on the basis that the only duty of support which the law will protect in such circumstances was a duty flowing from a marriage solemnised and recognised by one faith or philosophy to the exclusion of others. This was inconsistent with the new ethos of tolerance, pluralism and religious freedom which had consolidated itself even before the adoption of the Constitution of the Republic of South Africa Act 200 of 1993. (Paragraph [20] at 1327H/I-1328B/C.) H

Held, further, that the boni mores of the community at the time when the instant cause of action arose would have supported an approach which gave the duty of support flowing from the Muslim marriage the same protection as that accorded to the duty flowing from a Christian marriage. (Paragraph [23] at 1329H-I.) I

Held, further, that the issue of the dependant's action where the deceased had been party to a plurality of continuing unions as opposed to a monogamous one had to be left open. (Paragraph [24] at 1330B/C-C/D.)

Held, further, as to the argument that Muslim couples suffered no special discrimination because they were free to solemnise their marriages in terms of the Marriage Act and thus acquire for their relationship the status of a J

1999 (4) SA p1321

civil marriage, that for purposes of the dependant's action the decisive A issue was not whether the dependant concerned was or was not lawfully married to the deceased but whether the deceased was under a legal duty to support the dependant in a relationship which deserved recognition and protection at common law. Thus it did not follow that, if the marriage between the dependant and the deceased was not valid in terms of civil law, she would have no right to pursue a dependant's claim based on the duty of the deceased B to support her: she would indeed have such a right if the deceased was under a legally enforceable contractual duty to support her flowing from a de facto monogamous marriage in accordance with a recognised and acceptable faith such as Islam. (Paragraph [25] at 1330G/H-1331B.)

Held, accordingly, that the dependant had to prove the following: (1) that the deceased had a legally enforceable duty to support the dependant; (2) that it was a duty that arose from a solemn C marriage in accordance with the tenets of a recognised and accepted faith; and (3) it was a duty that deserved recognition and protection for the purposes of the dependant's action. (Paragraph [26] at 1331C-D.)

Held, further, as to the argument that the proper remedy was D for the Legislature to effect statutory redress as it had done in the case of widows who had been married according to African customary law, that though the Legislature was perfectly entitled to do so, it did not follow that the Court could not interpret and develop the common law to accommodate this need if it was consistent with the relevant common-law principles which regulated the objectives and the proper ambit of the dependant's action in Roman-Dutch law. (Paragraph [28] at 1331G-1332A.) E

Held, further, that there was no reason why the appellant should be denied the common-law relief to which she was entitled: she had after all waited for six years to obtain proper compensation and acted with vigour in seeking relief in the High Court and the Constitutional Court. It was not a case which involved difficult policy and political choices that was best left to the Legislature and there was no danger that by upholding the claim the Court might become F entangled in religiously controversial doctrines as the legal legitimacy of the claim could be assessed purely on the proper application of common-law principles. (Paragraph [28] at 1332A-D.) Appeal allowed.

The decision in the Durban and Coast Local Division in Amod v Multilateral Motor Vehicle Accidents Fund 1997 (12) BCLR 1716 reversed. G

Cases Considered

Annotations E

Reported cases

Abbot v Bergman 1922 AD 53: compared

Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A): referred to

Amod v Multilateral Motor Vehicle Accidents H Fund 1997 (12) BCLR 1716 (D): reversed on appeal

Amod v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 753 (CC): referred to

Baindail v Baindail [1946] 1 All ER 342 (CA) ([1946] P 122): dictum at 346 (All ER) and 128 (P) applied

Bronn v Fritz Bronn's Executors and I Others (1860) 3 Searle 313: compared

Chaudhry v Chaudhry [1975] 3 All ER 687 (Fam) ([1976] Fam 148): dictum at 690 (All ER) and 153 (Fam) applied

Din v National Assistance Board [1967] 2 QB 213 ([1967] 1 All ER 750 (QB)): dictum at 219 (QB) and 753 (All ER) applied

Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) (1196 (5) BCLR 658): dictum in para [86] applied J

1999 (4) SA p1322

Fraser v Children's Court, Pretoria North, A and Others 1997 (2) SA 261 (CC): referred to

Ismail v Ismail 1983 (1) SA 1006 (A): distinguished and not followed

Langemaat v Minister of Safety and Security and Others 1998 (3) SA 312 (T): dictum at 316E - F applied

Minister van Polisie v Ewels 1975 (3) SA 590 (A): referred to

Msilane v South African Eagle Insurance Co B Ltd 1996 (3) SA 36 (C): dictum at 40I - J applied

Nkabinde v SA Motor & General Insurance Co Ltd 1961 (1) SA 302 (D): not followed

Ryland v Edros 1997 (2) SA 690 (C): dicta at 707H and 710D approved and applied

Santam Bpk v Henery 1999 (3) SA 421 C (SCA): dicta at 425H - 426A...