Paixão and Another v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Mthiyane DP, Cachalia JA, Tshiqi JA, Petse JA and Southwood AJA
• Judgment Date: 26 September 2012
• Citation: 2012 (6) SA 377 (SCA)
• Docket Number: 640/11 [2012] ZASCA 130
• Hearing Date: 10 September 2012
• Counsel: B Ancer SC for the appellants. S Budlender for the respondent.
• Court: Supreme Court of Appeal

Cachalia JA (Mthiyane DP, Tshiqi JA, Petse JA and Southwood AJA concurring):

[1] The main issue in this appeal concerns whether or not the common E law should be developed to extend the dependants' action to permanent heterosexual relationships.

[2] The appellants, Maria Angelina Paixão and her daughter Michelle Orlanda Santos, sued the respondent, the Road Accident Fund, under F s 17(1) of the Road Accident Fund Act 56 of 1996, for loss of maintenance and support arising from the death of José Adelino Do Olival Gomes in a motor vehicle collision on 2 January 2008. [1] The deceased had been living with the first appellant (Mrs Paixão) and her

Cachalia JA (Mthiyane DP, Tshiqi JA, Petse JA and Southwood AJA concurring)

children at the time and supported them financially. He had planned to A marry her, but had not yet done so. The South Gauteng High Court, Johannesburg (Mathopo J), [2] found that the deceased had supported the appellants out of 'gratitude', 'sympathy' and 'kindness' in return for their assistance during his illness, rather than from any legal duty, and also that it 'would be an affront to the fabric of our society . . . and seriously B erode the institution of marriage' if the dependants' action were to be extended to the appellants. It therefore dismissed their claims against the fund but granted them leave to appeal to this court.

[3] The essential facts pertaining to the nature of the relationship between the appellants and the deceased are not in dispute. They emerge C from the stated case and further evidence adduced by three witnesses who testified on behalf of the appellants — Mrs Paixão herself, Fatima Regina Santos Paixão (her eldest daughter) and Mrs Theresa Goncalves, a close family friend. The fund adduced no rebuttal evidence. Its cross-examination of the three witnesses was aimed at impugning the appellants' assertion that the deceased had had a legal duty rather than D merely a moral commitment to support them.

[4] The facts are these: Mrs Paixão was born in June 1957 on the Portuguese island of Madeira, where she received her primary school education up to standard four. It is not clear when she came to South Africa. She married Manuel Paixão in 1980. Three daughters were born E of this union: Fatima, Marlize and Michelle, the second appellant. She is the youngest and was born in February 1991. Manuel Paixão died in June 2000. After his death Mrs Paixão commenced formal employment for the first time as a chef in a transport company where her husband had previously been employed.

[5] Two years later, in 2002, she met the deceased whom she had F engaged to do maintenance work on her house. They became good friends. At the time he was married to Mrs Healdina De Jesus Carreira Melro according to Portuguese law. They were unhappy and had been living apart for some time.

[6] The relationship between the deceased and Mrs Paixão grew, as did G his bond with her daughters. In May 2003 Fatima married. The deceased paid for the wedding. Fatima testified that he told her that he wished to pay because 'he felt responsible for us (and) he wanted to be part of our family . . . of our lives'.

[7] In October 2003 the deceased fell ill and was hospitalised. Upon his H discharge from hospital Mrs Paixão offered to nurse and support him at her home until he was able to return to work. He accepted the offer and began living with her and her two unmarried daughters in a 'permanent life partnership'. He was not formally divorced from his wife at the time. But that marriage was, for all practical purposes, over. I

Cachalia JA (Mthiyane DP, Tshiqi JA, Petse JA and Southwood AJA concurring)

A [8] During their cohabitation the deceased paid for everything. Mrs Paixão was retrenched in February 2004, and his was the sole income of their household. The deceased did not want her to work and undertook to support her and the children. He assured her that he would marry her as soon as his divorce from his wife was finalised. He also took B care of her, as he had promised to do, by taking full responsibility for the family's food, holidays, university fees of the second daughter, Marlize, and Michelle's school fees. According to Mrs Goncalves he assumed this obligation 'because he was living with her (Mrs Paixão) and she was his wife'. By this she meant that the community acknowledged that they C were living together as if they were married.

[9] Two significant events occurred in June 2005. First, the deceased divorced Mrs Melro according to South African law. However, he felt constrained not to marry Mrs Paixão before his divorce was also concluded and recognised in Portugal. Second, he executed a joint will D with Mrs Paixão in which they nominated each other 'as the sole and universal heirs of our entire estate and effects of the first dying of us'. The will went on to say that in the event of their simultaneous deaths their assets were to be consolidated and Mrs Paixão's three daughters — referred to in the will as 'our daughters' — were to inherit in equal shares. If the event happened before the daughters turned 21, a trust was to be E created for their benefit.

[10] In June 2007 the deceased's divorce from his wife was concluded in Portugal. There were now no legal or practical impediments to his marrying Mrs Paixão and they began making arrangements to marry. They travelled to Portugal where he introduced her to his parents, who F apparently approved of their relationship. They planned to be married in Portugal on 12 April 2008. The date was chosen to coincide with his parents' 50th wedding anniversary, which was to be celebrated in Portugal. To this end, in November 2007, he asked Mrs Goncalves to assist with the flight details. Sadly, he died two months later, before they could make the journey. Mrs Paixão made arrangements for his body to G be flown to Portugal for burial according to his wishes.

[11] The appellants contend that before and during the period of cohabitation the deceased had contractually undertaken to maintain and support them, was legally obliged to do so and would have done so for the remainder of Mrs Paixão's life and until Michelle became H self-supporting. The fund maintains that the appellants did not establish a legally enforceable agreement between the deceased and Mrs Paixão, and, even if they did, the agreement is not enforceable against a third party such as the fund.

[12] A claim for maintenance and loss of support suffered as a result of I a breadwinner's death is recognised at common law as a 'dependants' action'. [3] The object of the remedy is to place the dependants of the deceased in the same position, as regards maintenance, as they would

Cachalia JA (Mthiyane DP, Tshiqi JA, Petse JA and Southwood AJA concurring)

have been had the deceased not been killed. [4] The remedy has been A described as 'anomalous, peculiar and sui generis' because the dependant derives her right, not through the deceased or his estate, but from the fact that she has suffered loss by the death of the deceased for which the defendant is liable. [5] However, only a dependant to whom the deceased, whilst alive, owed a legally enforceable duty to maintain and support B may sue in such an action. [6] Put differently, the dependant must have a right which is worthy of the law's protection to claim such support. [7] So, if a dependant institutes a claim under the Act, she would be entitled to compensation from the fund for her proven loss if she establishes this right. [8] C

[13] The existence of a dependant's right to claim support which is worthy of the law's protection, and the breadwinner's correlative duty of support, is determined by the boni mores criterion or, as Rumpff CJ in another context put it in Minister van Polisie v Ewels, [9] the legal D convictions of the community. This is essentially a judicial determination that a court must make after considering the interplay of several factors: 'the hand of history, our ideas of morals and justice, the convenience of administering the rule and our social ideas of where the loss should fall'. [10] In this regard considerations of 'equity and decency' E have always been important. [11] Underpinning all of this are constitutional norms and values. So the court is required to make a policy decision based on the recognition that social changes must be accompanied by legal norms to encourage social responsibility. [12] By making the boni mores the decisive factor in this determination, the dependants' action has had the flexibility to adapt to social changes and to modern F conditions.

[14] Although the precise scope of the dependants' action is unclear from the old Roman-Dutch jurists, there is a strong suggestion that it was not confined only to those classes of persons to whom the G breadwinner had a legal obligation to support, but was also available to those

Cachalia JA (Mthiyane DP, Tshiqi JA, Petse JA and Southwood AJA concurring)

A whom the deceased 'was accustomed to support from a sense of duty'. [13] In Amod v Multilateral Motor Vehicle Accidents Fund [14] Mahomed CJ put it thus:

'[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 B whom the deceased was accustomed to aliment ex officio, for example his parents, his widow, his children . . . . This and other passages in 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. The same uncertainty but tendency to extend the C dependant's action to any dependant enjoying a de facto close familial relationship with the breadwinner is also manifest in Voet 9.2.11 who seeks to accord the dependant's action to...