South Africa: Evolving Notion Of Mores Leads To Further Development Of South African Common Law

Last Updated: 5 December 2017
Article by Max Ebrahim and Kate MacKay

On 24 November 2017, the Supreme Court of Appeal ("SCA") ruled in favour of granting a loss of support claim to an aunt of the deceased. Whilst the judgment will probably not lead to a flurry of actions, it does signal the SCA's willingness to develop the common law in accordance with principles of customary law.

The South African common law principle underlying a dependant's claim for loss of support dates back several centuries and the duty of support was limited to the second degree of consanguinity, namely 2 ascending or descending generations (children and parents and/or grandchildren and grandparents).

The facts which gave rise to the action in the matter of Road Accident Fund v Mohohlo (882/16) [2017] SCA 155 are sumarised below:

  • Otshepeng Letshufi (the "deceased") died as a result of the injuries he sustained in a motor collision.
  • The plaintiff in the court a quo, was the deceased's aunt. She claimed damages, from the defendant (the Road Accident Fund), arising from her loss of support.
  • The plaintiff testified that although she did not adopt the deceased (a concept which does not exist in her culture), after family consultations, she undertook to care for the deceased (notwithstanding that his parents were alive).
  • She further testified that she cared for the deceased from when he was 3 months old and continued to treat him as her son.
  • Once the deceased entered the formal job market, he cared for the plaintiff who had become unemployed due to ill-health.
  • The Road Accident Fund disputed the plaintiff's right to damages.
  • The parties asked accordingly as the court a quo to determine, on a separated basis, whether the deceased owed the plaintiff a legal duty of support and whether she had the degree of indigence entitling her to enforce the duty (the latter aspect proved to be uncontroversial).
  • The court a quo found in favour of the plaintiff.

On appeal to the SCA, Rogers AJA, writing for the majority, concluded that the duty of support and correlative right to claim for loss of support should be extended in the circumstances.

In arriving at his conclusion, he reasoned that:

  1. The duty of support was not owed to the plaintiff merely by virtue of their blood relationship, pointing out that South African courts have extended the duty beyond the categories recognised at common law to include, for instance, life partners not married according to civil law [Paixão & another v Road Accident Fund 2012 (6) SA 377 (SCA)].
  2. The existence of the duty and correlative claim for loss of support is determined by the legal convictions of the community, which are not static and which takes account of history, morals, justice, social ideas, equity and decency and that the court is ultimately tasked with making a policy decision to reflect social changes and modern conditions.

It is the latter observation which merits greater scrutiny. In this regard, in determining what the legal convictions of the community are, Rogers had regard to the value of Ubuntu (a notion that "a person is a person through other people" and which he noted resonates with a large proportion of the population) and the prescripts of section 211(3) of the Constitution which place a duty on courts to apply customary law when applicable.

He reasoned it was clear that the plaintiff's behaviour in caring for the deceased from the time that he was an infant and her continued support together with the way the deceased reciprocated when he became an adult, gave expression to Ubuntu. He concluded, that for all practical purposes, the plaintiff adopted the deceased, and the de facto relationship between them was that of mother and child (much the same as the de facto relationship between life partners)[1].

In finding in favour of the plaintiff, Rogers AJA rejected the defendant's arguments that the extension of the duty would open the flood gates to similar claims and would place the defendant at an evidential disadvantage in determining whether a de facto relationship existed. He dismissed these arguments on the basis that the principle could not be determined with reference to the specific circumstances of the defendant and, secondly, that the liability would only be recognised where a de facto relationship of support existed.

As an aside, the SCA cautioned, as it has done so before, that parties should be slow to separate out issues without a clear identification of what the issues are, whether it is convenient in the circumstances and where the issues are nevertheless related (in this instance, Rogers AJA expressed the prima facie view that proving the extent of the plaintiff's claim would not have delayed the matter significantly).

This case demonstrates, again, the significant impact of the elastic principle of the "legal convictions of the community" and, in particular, the impact of African customary law (which relies heavily on oral traditions) and Ubuntu on this principle. Whilst the judgment is to be welcomed because of the court's deep commitment to constitutional values (and, ultimately, equity), it does highlight the transformative nature of the South African Constitution and its impact on centuries old common law. More significantly, it highlights the potential unpredicatability of litigating in the South African courts.


[1] Rogers went on further to draw on the explanation provided by Dlodlo J in Fosi v Road Accident Fund & another 2008 (3) SA 560 (C), as to what an African law perspective of the "duty of support". To summarise, Dlodlo explained that when an African person provides support and education to his/her son/daughter, it is provided not only in terms of a duty envisaged in the South African legal system, but that the obligation also exists in terms of customs. Dlodlo further explained that in the African tradition it was seen as an investment, as the child would, in the future, recognise the sacrifice made and reciprocate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Max Ebrahim
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