Du Plessis v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Streicher JA, Farlam JA, Cloete JA, Lewis JA and Southwood AJA
• Judgment Date: 19 September 2003
• Citation: 2004 (1) SA 359 (SCA)
• Docket Number: 443/2002
• Hearing Date: 28 August 2003
• Counsel: J F Mullins SC (with him M J Fourie) for the appellants. B P Geach for the respondent.
• Court: Supreme Court of Appeal

Cloete JA:

Introduction

[1] The plaintiff (appellant in this court) and Albert Ernest Clack (the deceased) were partners in a same-sex union when the deceased was killed in a motor vehicle accident. The primary question on appeal is G whether the plaintiff should be entitled to claim damages for loss of support from the defendant (respondent in this Court), the Road Accident Fund, in terms of the provisions of the Road Accident Fund Act 56 of 1996 (the Act). A subsidiary question is whether the plaintiff has shown his entitlement to claim funeral expenses incurred in burying H the deceased.

[2] The Court a quo dismissed both of the plaintiff's claims and refused leave to appeal. The present appeal is with the leave of this Court.

The facts and issues I

[3] The plaintiff and the deceased had lived together continuously since March 1988. In August that year they went through a ceremony which was as close as possible to a marriage ceremony in the presence of numerous witnesses and which was conducted by a person who was a marriage officer (who obviously did not act in that capacity; but the J

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plaintiff said in evidence that he and the deceased would have married A had the law permitted it). The union between the plaintiff and the deceased was stable. They were acknowledged by family and friends as a couple.

[4] The plaintiff was medically boarded on 1 September 1994. Before that date he earned about R800 per month less than the deceased. Thereafter, the plaintiff received a disability pension which B was not sufficient for his needs and the deceased continued to earn a salary which was considerably in excess of the plaintiff's pension. They continued to pool their income. Accordingly, the deceased to a large extent maintained the plaintiff financially for the five years after the plaintiff was boarded and before the deceased was killed on C 1 September 1999. The deceased also promised to continue to support the plaintiff after he was boarded. The plaintiff's evidence on these aspects was the following:

'Nou toe u medies geraad was het dit beteken dat jou inkomste omtrent verminder het na 'n derde van jou inkomste voor dit? - Ja, dit het met 'n aansienlike bedrag gedaal. D

Daarna het Ernest jou finansieel ondersteun? - Ja, hy het my finansieel ondersteun. Ek het inteendeel op 'n stadium daaraan gedink om miskien vir my 'n ligter beroep te kry waarin ek ook iets ekstra kon bring, maar hy het vir my gesê daarvoor is hy daar en hy gaan nie toelaat dat ek enige beroep met my gesondheid verder beoefen nie. E

Waarvoor het hy gesê is hy daar? - Hy het gesê hy is daar om vir my finansieel te ondersteun en in my siektetoestand sal hy vir my emosioneel en moreel bystaan en dat hy nie sal toelaat dat ek enige beroep weer beoefen nie want ek kan, ek kan 100 jaar oud word en hy sal, hy sal persoonlik toesien dat ek nie my gesondheid verder sal benadeel nie.

. . . F

Mnr Du Plessis, het u ooit twyfel in u gemoed gehad oor of Ernest sou voortgaan om jou te onderhou? - Daar was geen twyfel aan nie. Hy het ook altyd vir my verseker hy is daar vir my en ek het nooit, geensins getwyfel aan sy ondersteuning en sy, en sy sorg nie.'

In addition the plaintiff and the deceased agreed to make wills, each bequeathing his estate to the other; and they did so - the plaintiff on 28 July 1988 and the deceased a G year later on 31 July 1989.

[5] The parties have agreed that the defendant is liable under the Act to pay to the plaintiff 75% of such legally recoverable damages as the plaintiff might prove he has suffered arising out of the death of the deceased. The Court a quo by consent made an order in terms of Rule 33(4) directing that the matter H proceed to trial only on the issues of whether the plaintiff's claim against the defendant for loss of support is legally recognised and the plaintiff's right to claim for burial expenses.

[6] In terms of s 17 of the Act the defendant or an agent is, subject to the provisions of the Act, obliged to compensate any person for any loss or damage which that person has suffered as a I result of the death of any other person caused by or arising from the driving of a motor vehicle if the death is due to the negligence of the driver or owner of the vehicle. Section 19(a) of the Act exempts the defendant from liability for loss or damage for which neither the driver nor the owner of the motor vehicle J

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which caused the deceased's death would have been liable at common law. A

[7] The defendant's case is that the plaintiff's claim for loss of support is not maintainable in law [1] and that the plaintiff has not established a right to claim any funeral costs expended in burying the deceased. It is important to emphasise that the submissions made on behalf of the plaintiff fell short of B requesting this Court to extend the common-law definition of marriage, which requires that the union be between a man and a woman, [2] to persons of the same sex. [3] The submissions on behalf of the plaintiff were rather directed towards the narrower question whether the common-law action for damages for loss of support should be developed C to include a person such as the plaintiff.

The dependant's action

[8] It is not necessary to embark upon a jurisprudential analysis of the origins of the common-law action for loss of support, or to investigate which dependants were entitled to bring the action. It is D trite that a widow who was legally married to the deceased is entitled to bring such an action for the unlawful killing of her husband. It is the plaintiff's case that the common law should be developed to place him in the same position. E

[9] In Union Government (Minister of Railways and Harbours) v Warneke 1911 AD 657 the action was extended so as to give an action to a husband who had suffered patrimonial loss through the death of his wife. In Abbott v Bergman 1922 AD 53 the principle laid down in Warneke was applied to enable a husband to sue for patrimonial loss sustained by him through non-fatal F injury to his wife. In Santam Bpk v Henery 1999 (3) SA 421 (SCA) the action was extended to cover a divorced woman entitled to maintenance from the deceased in terms of an order of Court granted in terms of s 7(2) of the Divorce Act 70 of 1979. Finally, a contractual right to support arising out of a marriage in terms of Islamic law was, G within defined parameters, recognised for purposes of the dependant's action in Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA 1319 (SCA). Amod was expressly decided without reference to either the interim Constitution or the present Constitution. [4] H

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[10] In Henery [5] and Amod [6] it was held that a dependant's claim for loss of support as a result of the unlawful killing of A another, being a claim for pure economic loss, will be valid if the deceased had a legally enforceable duty to support the dependant and if the right of the dependant to such support was worthy of protection by way of an action at the suit of the dependant against the wrongdoer. B

The duty of support

[11] The first issue to be decided is, therefore, whether the plaintiff proved a legally enforceable duty of support on the part of the deceased.

[12] A marriage gives rise to a reciprocal duty of support on the part of the parties to that marriage. However, the law currently only recognises marriages that are conjugal relationships between C people of the opposite sex. There is, nevertheless, in the words of Ackermann J in National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) in para [35] 'another form of life partnership which is different from marriage as recognised by law. This form of life D partnership is represented by a conjugal relationship between two people of the same sex.' [7]

[13] As regards the question whether two people of the same sex who entered into a conjugal relationship could owe a similar duty of support to one another, the Constitutional Court said in Satchwell v President of the Republic of South Africa and E Another 2002 (6) SA 1 (CC) in para [25]:

'The law attaches a duty of support to various family relationships, for example, husband and wife, and parent and child. In a society where the range of family formations has widened, such a duty of support may be inferred as a matter of fact in certain cases of persons involved in permanent, same-sex life partnerships. Whether such a duty of support exists or not will depend on the circumstances of F 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 G duties of support.'

[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 the 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 H 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 to publicise to the world that they intended their I

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relationship to be, and to be regarded as, similar in all respects to that...