It is trite law that upon the death of the breadwinner, the spouse can claim for loss of support from the Road Accident Fund (RAF). However, trite has never defined what the legal position is when it comes to cohabiting partners. As such, the Jacobs case is ground-breaking. Setting a new precedent, the case will help potential claimants going-forward. Needless to say, the circumstances surrounding each individual case will ultimately determine the outcome.

Case summary:

In the matter of Jacobs, the deceased, a married man, was involved in a motor vehicle accident (MVA) on 12 August 2015, succumbing to his injuries on 14 September 2015.

Having been romantically involved for some time, the deceased had proposed to the claimant, and had been date set to solemnise their union. However, this was subject to the finalisation of the deceased's divorce from his wife.

While married, the deceased had moved into the claimant's house, living together with the claimant's minor children.

Unemployed and solely dependent on the deceased for the entire duration of their relationship, the claimant and her children received on-going financial support from the deceased.

In coming to a conclusion, the court considered the couple's plans and intent to wed, as well as the pertinent fact that the deceased supported the claimant and her children, willingly while alive. Therefore, the claimant was eligible to claim for loss of support.

In arriving at its conclusion, the court considered various factors, such as the equality clause of the Constitution of the Republic of South Africa, and particularly the fact that the Constitution expressly prohibits discrimination on the basis of marital status. The court also took cognisance of the tacit agreement between the deceased and the claimant that created a legal obligation on the deceased to maintain the claimant. The court further highlighted that for six years, the deceased had been the sole breadwinner, financially supporting the claimant and her minor children, therefore fulfilling this obligation. Furthermore, the parties had committed to wed once the deceased's existing marriage was officially dissolved.

As expected, a court debate delved into the boni mores discussion. One would argue that it is against public policy for court to allow someone, who had been cohabiting with a married man, to claim for loss of support. The court, however, concentrated on its inextricable and inherent constitutional duty, such as developing the common law in a manner that promotes the spirit, purport and objects of the Bill of Rights, as enshrined in the Constitution.

The court opportunely reflected on the Constitutional Court's case of Du Plessis v De Klerk where Kentridge AJ highlighted the point that "Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country." Kentridge AJ warned Judges to avoid perpetuating certain public rules whose social foundation has long melted.

Judgement pro's and con's

From the onset, it is important to reflect on the significance of marriage. It is common knowledge that the coming into existence of marriage brings about socially accepted legal duties/obligations and corresponding rights. Additionally, marriage legitimises certain forms of conduct which would otherwise be generally be frowned upon if manifested by unmarried couples. It also establishes critical legal certainty. Therefore, there is significant room at which to argue that the Jacobs case would surely fly on the face of the institution of marriage.

Furthermore, a valid argument one may present is that it perpetuates cohabitation, which is still frowned upon by many in society and, even more so in the African communities. It also places many people, more so African women, in a perilous situation. For example, you find that most married African men in South Africa move to the urban areas where there are job opportunities. Once settled in a city, many cohabit with other women. As a result, women cohabiting will be able to claim from the RAF if men are found to be financially supporting them. Although the widow can obviously still claim, there is an added burden on the RAF – especially considering the RAF's financial predicaments of late.

On the other side of the coin, this judgement is indeed a momentous win for some. The reality is, for many in It today's society, getting married poses a challenge as a result of financial constraints – the unemployment statistics speak for themselves. Therefore, for many, the win means they are not able to cohabit, and should the breadwinner die, they can claim for loss of support.

The case will help future potential claimants who find themselves in the same predicament as did Ms Jacobs.

The case will help future potential claimants who find themselves in the same predicament as did Ms Jacobs.

In addition, in reality many cohabit and therefore, to deprive them of an opportunity where they can claim for loss of support, based on their marital status, would be unfair and contrary to the values of the Constitution.

Furthermore, this judgement will bring about certainty as to the legal position for cohabiting partners.

As indicated above, the circumstances of each case will determine whether the claimant is entitled to compensation or not and, at this juncture, it is worth noting the sentiments shared by Mokgoro J and O'Reagan J in the matter of Volks NO v Robinson, where the court noted various reasons why some partners decide to cohabit. It held that some may be living together and have no intention of permanence at all; some may be living together because there are legal or religious impediments to their marriage; others as a means to circumvent legal consequences that are inherent to marriage; and some cohabit with the intention of permanently being together with the view of getting married.


Legal practitioners will need to seriously and thoroughly consider and investigate the circumstances of a potential claimant before deciding whether to pursue a claim or not. Undoubtedly, the Jacobs case will be of a stern persuasive value to other courts, however, they – the courts – will not be oblivious to the peculiar circumstances of Jacobs case. Therefore, the enormous risk that legal practitioners run if they do not do their homework thoroughly, is a Locus Standi Special Plea – which means that the payment by the RAF cannot be made until the Locus Standi has been established (simply because lack of Locus Standi, strictly speaking, does not invalidate the claim). Jacobs case has indeed opened a wide room for similar cases and it will certainly be interesting to see how and what other courts rule in cases of this nature.

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.