Van der Merwe v Road Accident Fund and Another (Women's Legal Centre Trust as Amicus Curiae)

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Mokgoro J, Ngcobo J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 30 March 2006
• Docket Number: CCT48/2005
• Hearing Date: 24 November 2005
• Counsel: B David for the applicant. Theoniel Potgieter SC (with him Mohamed Salie) for the first respondent. Krishna Pillay for the second respondent. O Mooki for the Amicus Curiae.
• Court: Constitutional Court

Moseneke DCJ:

Introduction I

[1] This case concerns the constitutional validity of legislative provisions that concern patrimonial arrangements between spouses married in community of property and of profit and loss. More pointedly, the provisions regulate the right of a spouse married in community of J

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property to recover delictual patrimonial damages arising from bodily injury inflicted by the other spouse. A

[2] The impugned provision is s 18(a) of the Matrimonial Property Act 88 of 1984 (the Act). It is, however, convenient to set out s 18(a) and (b):

'18 Certain damages excluded from the community and recoverable from the other spouse B

Notwithstanding the fact that a spouse is married in community of property -

(a)

any amount recovered by him by way of damages, other than damages for patrimonial loss, by reason of a delict committed C against him, does not fall into the joint estate but becomes his separate property;

(b)

he may recover from the other spouse damages, other than damages for patrimonial loss, in respect of bodily injuries suffered by him and attributable either wholly or in part to the fault of that spouse.'

[3] The provisions are said to be bad because they unjustifiably intrude upon the dignity [1] and non-discrimination [2] guarantees our Constitution affords everyone. Ndita AJ sitting in the Cape High Court [3] (High Court) upheld this contention in D relation only to s 18(b) of the Act and declared the provision to be inconsistent with the Constitution and invalid.

[4] In the result, the High Court made the following order:

'(1)

The inclusion of the words 'other than damages for patrimonial loss' in s 18(b) of the Matrimonial Property Act 88 of 1984 is declared to be inconsistent with the Constitution. E

(2)

The words 'other than damages for patrimonial loss' in s 18(b) should be removed and substituted with 'including damages for patrimonial loss'.

(3)

The order in para 2 only comes into effect from the moment of F the making of this order.

(4)

This order shall have no effect on judgments that have already been handed down.

(5)

There is no order as to the costs of these proceedings.'

[5] Before us are three matters. The first is an application brought by Mrs Vanessa van der Merwe (applicant) in terms of G s 172(2)(d) [4] of the Constitution for confirmation of the order of constitutional invalidity made by the High Court. She also seeks ancillary relief in the form of a variation of the Court order to be confirmed. The second is a direct H

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appeal by the Road Accident Fund (the Fund) against the order of constitutional A invalidity. [5] The third is an application for joinder of the Minister of Justice and Constitutional Development as a party to the proceedings. I propose to dispose of the joinder issue first.

[6] For some obscure reason, the Minister was not a party to the proceedings before the High Court. In her papers, the applicant attributes the omission to 'mutual error' of both parties. The B judgment of the High Court is silent on the issue of joinder. Be that as it may, now before us is an application for the joinder of the Minister. The application appears to have been compelled by the complaint in the Fund's notice of appeal that the High Court improperly granted an order of constitutional invalidity in respect of C an Act of Parliament in the absence of the responsible Minister. On receipt of the application, the Minister consented to the joinder. She also gave notice that she does not oppose the confirmation of the order of constitutional invalidity and that she will abide the decision of this Court.

[7] Wisely so, none of the other parties opposed her being made a party to these proceedings because the grievance of non-joinder of D the Minister before the High Court is a good one. On a number of occasions this Court [6] has emphasised that when the constitutional validity of an Act of Parliament is impugned the Minister responsible for its administration must be a party to the proceedings inasmuch as his or her views and evidence tendered ought to E be heard and considered. Rudimentary fairness in litigation dictates so. There is another important reason. When the constitutional validity of legislation is in issue, considerations of public interest and of separation of powers surface. Ordinarily courts should not pronounce on the validity of impugned legislation without the benefit of hearing the F State organ concerned on the purpose pursued by the legislation, its legitimacy, the factual context, the impact of its application, and the justification, if any, for limiting an entrenched right. The views of the State organ concerned are also important when considering whether, and on what conditions, to suspend any declaration of invalidity. G

[8] Similar considerations apply in confirmation proceedings before this Court. Rule 5(1) [7] enjoins the joinder of the authority of State responsible

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for the administration of the law whose constitutional validity is at issue. Rule A 5(2) [8] is explicit and peremptory in its terms. It provides that the Court shall not make an order of constitutional invalidity of legislation unless the authority concerned is joined as a party to the proceedings. It is indeed trite that the contentions and evidence, if any, advanced by the State functionary charged with the administration of legislation under scrutiny are vital, if not B indispensable, for proper ventilation and ultimate adjudication of the constitutional challenge to the validity of legislation.

[9] It is therefore appropriate and necessary to join the Minister as second respondent. I shall order so. Nothing more need to be said about the joinder.

[10] One observation may be made about the Minister's C participation in these proceedings. Even though the Minister supports the confirmation of the declaration of invalidity of the legislation and abides the decision of this Court, rightly so, she has caused to be submitted written and oral argument on behalf of the government. Both were indeed helpful. Being charged with the administration of the D legislation, it is salutary to hear the Minister on why the impugned provision is good or as in this case, on why and to what extent it falls short of the constitutional standard and on the remedy that might be appropriate. E

The facts

[11] The facts are simple and sparse, yet disturbing. On 24 October 1999 and at Pick 'n Pay in Goodwood, on a public road, a vehicle with registration letters and numbers BXW 288 F then driven by Mr David van der Merwe (the insured driver) collided with Mrs Vanessa van der Merwe. At the time of the collision the applicant and the F insured driver were married in community of property. It is common cause between the parties that the insured driver intentionally knocked his wife over with the motor vehicle and went on to reverse over her while she was lying on the ground. It comes as no surprise that their marriage has since ended. They are divorced. G

[12] Mrs Van der Merwe instituted action in the High Court against the

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Fund seeking to recover special and general damages arising from her bodily injuries. The Fund is the statutory body that is liable A to compensate the applicant for damages arising from bodily injuries caused by the driving of a motor vehicle. However, the Fund is liable to compensate the applicant only if she could institute a lawful claim against the driver of the motor vehicle that caused her bodily harm. [9] B

[13] In her particulars of claim, Mrs Van der Merwe specifies her bodily injuries to include a ruptured bladder, a fractured pelvis including fractures of the right acetabulum, right superior and inferior pubic rami and left inferior pubic ramus, skeletal fracture, severe contusions, soft tissue injury to her back, lacerations and permanent disfigurement of her buttocks and stomach. All of these C injuries resulted in her prolonged hospitalisation, suffering, pain and discomfort, loss of amenities of life, permanent disability and cosmetic disfigurement. On this account, she claims damages of nearly R500 000, consisting of special damages made up of past and future medical expenses and future loss of income earning capacity and general D damages for pain and suffering, loss of amenities of life and disfigurement.

[14] The Fund has pleaded that it has no knowledge of the nature and extent of the bodily injuries or the related damages alleged, but does not admit them. In addition, the Fund raised a special plea in which it E

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admitted that the applicant is entitled to claim 'non-patrimonial damages' such as 'general damages', but denied A liability to compensate the applicant for any 'patrimonial damages' by reason of the provisions of s 18(a) and (b) of the Act read with s 19(a) [10] of the Act which in effect prohibit claims for patrimonial damages between spouses married in community of property. B

[15] The applicant met the special plea with a replication that s 18(a) and (b) [11] of the Act discriminates unfairly on the ground of marital status [12] against persons married in community as opposed to persons married under other property regimes. She added that the legislative barrier to recovering delictual patrimonial loss also implicated her right to dignity [13] and C constituted an arbitrary deprivation of property. [14]

In the High Court

[16] The High Court heard the matter as a stated case in terms of Uniform Rules 33(1) [15] and (2) [16] and on a terse set of agreed facts D recounted in the preceding paragraphs. In essence, both parties invited the Court to decide whether s 18(a) and (b) had the effect of preventing

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