Du Plessis v Road Accident Fund

• Jurisdiction: South Africa
• Citation: 2004 (1) SA 359 (SCA)

Du Plessis v Road Accident Fund
2004 (1) SA 359 (SCA)

2004 (1) SA p359

Citation	2004 (1) SA 359 (SCA)
Case No	443/2002
Court	Supreme Court of Appeal
Judge	Streicher JA, Farlam JA, Cloete JA, Lewis JA and Southwood AJA
Heard	August 28, 2003
Judgment	September 19, 2003
Counsel	J F Mullins SC (with him M J Fourie) for the appellants.; B P Geach for the respondent.

Flynote : Sleutelwoorde

Constitutional law — Common law — Development of — Duty of Courts to B develop common law 'in accordance with spirit, purport and objects of the Bill of Rights' as intended in s 39(2) of the Constitution of the Republic of South Africa Act 108 of 1996 — Implicit in s 39(2) of Constitution, read with ss 8 and 173, that where common law deficient in promoting s 39(2) objectives, Courts to develop it appropriately — Judges to keep in mind, however, that C major engine for law reform Legislature and not Judiciary — Judiciary to confine itself to such incremental changes as necessary for evolution of common law — Extension of action for loss of support to partners in same-sex permanent life relationship similar in other respects to marriage, who had contractual duty to support one another, constituting D necessary incremental step — Accordingly, same-sex partner of deceased in permanent life relationship similar in other respects to marriage in which deceased had undertaken contractual duty of support to partner, entitled to claim damages for loss of such support.

Constitutional law — Human rights — Right to equality before the law and not to be unfairly discriminated E against — Common law, insofar as it affording spouse action for loss of support against wrongdoer who unlawfully kills other spouse, but not to same-sex partner who establishes such relationship, discriminating unfairly against such same-sex partner — Such discrimination not reasonable and justifiable as intended in s 36 of Constitution of the Republic of South Africa Act 108 of 1996 — Same-sex partner in F permanent life relationship similar in other respects to marriage, in which deceased partner had undertaken contractual duty of support to partner, thus entitled to claim damages for loss of such support — Constitution, s 9.

Constitutional law — Human rights — Right to dignity — Common law, insofar G

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as it affording spouse action for loss of support against wrongdoer who unlawfully kills other A spouse, but not to same-sex partner who establishes such relationship, discriminating unfairly against such same-sex partner — Such discrimination not reasonable and justifiable as intended in s 36 of Constitution of the Republic of South Africa Act 108 of 1996 — Same-sex partner in permanent life relationship similar in other respects to marriage, in which deceased partner had undertaken contractual duty to support such B partner, thus entitled to claim damages for loss of such support — Constitution, s 10.

Motor vehicle accidents — Compensation — Claim for in terms of Road Accident Fund Act 56 of 1996 — Dependent plaintiff claiming for loss of breadwinner — Plaintiff being partner of deceased breadwinner in same-sex long term relationship similar in C other respects to marriage — Deceased partner having undertaken contractual duty of support to plaintiff — Plaintiff entitled to claim damages from Road Accident Fund for loss of such support — Extension of action for loss of support to partners in same-sex permanent life relationship similar in other respects to marriage, who had contractual D duty to support one another, constituting necessary incremental step in evolution of common law as intended in Constitution of the Republic of South Africa Act 108 of 1996, recent legislation and judicial pronouncements.

Negligence — Action for damages — For fatal injuries — Loss of support — Action by partner of deceased breadwinner in same-sex long term relationship E similar in other respects to marriage — Deceased partner having undertaken contractual duty of support to plaintiff — Plaintiff entitled to claim damages from Road Accident Fund for loss of such support — To extend action for loss of support to partners in same-sex permanent life relationship similar in other respects to marriage, who had contractual duty to F support one another, incremental step to ensure that common law accords with dynamic and evolving fabric of society as reflected in Constitution of the Republic of South Africa Act 108 of 1996, recent legislation and judicial pronouncements.

Births and deaths — Deaths — Funeral expenses — Who is entitled to recover such from wrongdoer responsible for deceased's death — Person improperly G causing death of another liable to heir of latter for funeral expenses — Where heir laying out funeral expenses at his own account, action to recover such expenses lying at his suit — In casu partner of deceased breadwinner in long-term same-sex relationship similar in other respects to marriage, and in which deceased had undertaken contractual duty of H support to him, instituting action against Road Accident Fund for loss of such support after death of deceased partner in motor vehicle accident — Court holding that Road Accident Fund liable to compensate plaintiff for loss of support — Plaintiff being deceased's sole heir — Road Accident Fund ordered to pay such necessary actual costs to cremate deceased or to inter him in grave as were incurred by plaintiff as provided for in s 18(4) of Road I Accident Fund Act 56 of 1996.

Headnote : Kopnota

The plaintiff and the deceased had been partners in a same-sex union. The deceased was killed in a motor vehicle accident in September 1999. The primary question in the present appeal was whether the plaintiff should J

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be entitled to claim damages for loss of support from the defendant in terms of the Road Accident Fund Act 56 of 1996. A A subsidiary question was whether the plaintiff had shown his entitlement to claim funeral expenses incurred in burying the deceased. The Court a quo dismissed both of the plaintiff's claims.

The plaintiff and the deceased had lived together continuously since March 1988. In that year they had gone through a ceremony which was as close as possible to a marriage ceremony in the presence of numerous B witnesses, conducted by a person who was a marriage officer (who did not act in that capacity, but the plaintiff and the deceased would have married had the law permitted it). The union between the plaintiff and the deceased had been stable. They had been acknowledged by family and friends as a couple. The plaintiff had been medically boarded in September 1994. Before then he had earned less than the deceased. C Thereafter he had received a disability pension which was not sufficient for his needs and the deceased had continued to earn a salary which was considerably in excess of the plaintiff's pension. They had continued to pool their income. The deceased had to a large D extent maintained the plaintiff financially for the five years after the plaintiff was boarded and before the deceased was killed. The deceased had also promised to continue to support the plaintiff after he was boarded. The plaintiff and the deceased had made wills, each bequeathing his estate to the other. The parties agreed that the defendant was liable under the Act to pay the plaintiff 75% of such legally recoverable damages as the plaintiff might prove he has suffered arising out of the death of the deceased. In terms of s 17 of the Act the defendant or an agent was, subject to the provisions of E the Act, obliged to compensate any person for any loss or damage which that person has suffered as a result of the death of any other person caused by or arising from the driving of a motor vehicle if the death was due to the negligence of the driver or owner of the vehicle. Section 19(a) of the Act exempted the defendant from liability for loss or damage for which neither the driver nor the owner of the motor vehicle which caused the deceased's death would have been F liable at common law. The defendant's case was that the plaintiff's claim for loss of support was not maintainable in law and that the plaintiff had not established a right to claim any funeral costs expended in burying the deceased. The plaintiff's submissions fell short of requesting the Court to extend the common-law definition of marriage which required that the union be between a man and a woman, to persons of the same sex. His submissions were rather directed to the G narrower question whether the common-law action for damages for loss of support should be developed to include a person such as the plaintiff. It was trite that a widow who was legally married to the deceased was entitled to bring an action for the loss of support for the unlawful killing of her husband. It was the plaintiff's case that the common law should be developed to place him in the same position. H

Held, that a dependant's claim for loss of support as a result of the unlawful killing of another, being a claim for pure economic loss, would 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. (Paragraph [10] at 367A - B.) I

Held, further, that the first issue that had to be decided was, therefore, whether the plaintiff had proved a legally enforceable duty of support on the part of the deceased. A marriage gave rise to a reciprocal duty of support on the part of the parties to that marriage. However, the law currently recognised only marriages that were conjugal relationships between people of the J

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opposite sex. There was, nevertheless, another form of life partnership which was different...