South Africa: Having A Claim For Loss Of Support No Longer Means Having To Say "I Do"

Last Updated: 3 January 2019
Article by Tarryn Venter

On 23 November 2018, Judge Collis of the Gauteng Provincial Division showed again, how progressive the South African judicial system can be. Although largely confirming and enforcing the case of Paixao v Road Accident Fund, Judge Collis made use of the Constitutional rights afforded to the judiciary and extended the common law in relation to maintenance claims for a deceased heterosexual life partner in the case of Jacobs v Road Accident Fund. This case will likely have implications for all persons in long-term relationships, irrespective of sexual orientation, who intend to claim for loss of support from other institutions, although the impact is yet to be seen.

Brenda Jacobs and Wesley Stevens had been in a relationship for six years during which time the two had moved in together. Brenda ("the plaintiff") was a stay-at-home-mom and Wesley ("the deceased") was the bread winner for Brenda and her two sons. The two were engaged and had set a wedding date for 15 September 2015. Wesley was involved in an accident on 12 August 2015 as a result of which he died on 14 September 2015.

As a result of the deceased's death, the plaintiff lodged a claim for loss of maintenance and support against the Road Accident Fund ("the Fund"). The Fund however, refused to recognise the plaintiff's claim for loss of maintenance and support. Accordingly the matter proceeded to court.

The Fund's defence

The plaintiff herself led evidence as to the nature of her relationship with the deceased. Although the Fund had no rebuttal testimony to lead, the Fund attempted to impugn the credibility of the relationship probing further into the aspect of the plaintiff's testimony that she had known that the deceased was still married during their relationship and despite the divorce not having been finalised, they had set a wedding date. The plaintiff conceded that after about a year in the relationship, she became aware that the deceased was still married but the marriage was for all intents and purposes, over. The wedding date was set on the condition that divorce was finalised in time.

Without any evidence to refute the testimony of the plaintiff, the Fund sought to rely on the Supreme Court ruling in Paixao v the Road Accident Fund. In the Paixao case, Maria Angelina Paixao ("Mrs Paixao"), a widow, met José Adelino Do Olival Gomes ("Mr Gomes") who did some maintenance work in her home. The two began a romantic relationship. Mr Gomes moved into Mrs Paixao's home after he had fallen ill and never moved out. The two cohabitated for approximately five years, prepared wills naming each other the sole beneficiary and had set a date to wed after Mr Gomes' divorce from his previous wife had been finalised. Although Mrs Paixao did work at the outset of the relationship, she was retrenched during the relationship and Mr Gomes advised that he did not want her to work and instead, she should stay at home and he would maintain her and the children. Mr Gomes assured Mrs Paixao that he would marry her as soon as his divorce from his wife was finalised, both in South Africa and in Portugal, where he was from. Unfortunately before they could make it to their wedding in Portugal which was scheduled for April 2008, Mr Gomes passed away as a result of an accident in November 2007.

The Supreme Court of Appeal overturned the judgment of South Gauteng High Court and found that the corresponding duty of the breadwinner to support and the dependant's right to claim for support is determined by the boni mores criterion. But this would have to be determined in conjunction with whether the dependant was owed a legally enforceable duty by the deceased to maintain and support him or her.

Although the Court ultimately found that the Mrs Paixao and her daughter did have a legally enforceable duty of support against the deceased (and therefore against the Fund) and found that the Court had the duty to develop the common law to protect it. Despite the Jacobs matter being largely similar to that of the Paixao matter, the Fund still sought to rely on an aspect of the Paixao matter, by arguing that should the Court find that there was a legally enforceable right that the Court would then have to apply the boni mores criterion.

The Court's Finding

Judge Collis found that, based on the unrefuted evidence presented by the plaintiff, that there was a legally enforceable duty of support arising out of the relationship which was akin to that of marriage.

Judge Collis then went on to assess the boni mores criterion. Whilst she recognised that marriage is a sacred bond that two people choose to enter into, she also indicated that the common law should be amended in order to keep it current and in sync with the changing times. In South Africa, millions of people enter into long-term relationships without the intention of getting married. She observed the judgment of Volks NO v Robinson 2005 (5) BCLR 466 BC (CC) wherein Justices O'Reagan and Mokgoro referred to life partnerships and stated " Some may be living together with no intention of permanence at all, others may be living together because there is a legal or religious bar to their marriage, others may be living together on the firm and joint understanding that they do not wish their relationship to attract legal consequences, and still others may be living together with the firm and shared intention of being permanent life partners."

The important point that Judge Collis makes is that the intimate decision of two people, irrespective of race, gender or sexual preference, should be respected and that legally enforceable rights may arise from these relationships, irrespective of the choice of the couple not to solemnise the union, should be protected. Judge Collis recognised that South Africa has a diverse composition of people and that our laws need to recognise and make allowances for different situations and that the law needs to protect legally enforceable rights, even those that are not established in a traditional way.


The background of this matter is a loss of support claim against the Fund. Judge Collis premised her judgment on the basis that people within South Africa may not be discriminated against by the State, on any grounds whatsoever, as provided for by section 9(3) of the Constitution. Should a claim be made against a private entity, it will likely be based on section 9(4) of the Constitution as opposed to section 9(3).

What we should recognise from this case, is that although the case seems to be entrenching the principles established in the Paixao matter, the case has developed the common law to a greater extent in that Judge Collis has taken cognisance of the reality of the situation, although the sanctity of marriage should continue to be respected, partners can be in a long-term relationship and establish a legal duty of support towards one another without having entered into a formal union. This may be as a result of certain constraints that prohibit them from getting married or it may be a personal choice between the couple. The fact that a party has not entered into marriage should not deny them the protection that the law affords other legally enforceable rights.

Whilst this case has application to all long-term partnerships irrespective of sexual orientation, Judge Collis made specific reference to heterosexual couples and stated that Ms Jacobs should not be discriminated against for being in a heterosexual life partnership. This was likely as a result of the fact that, it was assumed, that there was no legal hindrance for a heterosexual couple not to get married and therefore, it is expected that in order for a contractual duty of support to be created, the couple should be married. However, this concept is outdated. Given the modern day realities of communities, Judge Collis' finding is evidently reasoned and founded on the boni mores of our communities today. It ensures that common law is developed in accordance with society's evolution and does not maintain rigid notions of what can be ascribed to relationships of appreciated and understood reciprocal duties of support.

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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