South African common law was recently aligned with the dynamic and ever-evolving values of South African society. More specifically, the availability of the "dependents action" was extended to unmarried persons in permanent heterosexual life partnerships where a legally enforceable reciprocal duty of support has been established.
This was documented in a Supreme Court of Appeal (SCA) ruling released on 26 September 2012 in the matter: Paixão v Road Accident Fund (640/11)  ZASCA 130 (Paixão v RAF).
Previous legal position
The object of the dependent's action is to place the dependents of a deceased in the same position, as regards to maintenance and support, as they would have been had the deceased not been killed.
The dependent's action is only available to dependents to whom the deceased owed a legally enforceable duty to maintain and support while he or she was alive. Traditionally this was only available to persons married in accordance with the Marriage Act, No. 25 of 1961 and later to persons who concluded and registered a civil union in terms of section 13 of the Civil Union Act No.17 of 2006.
The availability of the dependent's action was extended to persons in permanent homosexual relationships in Du Plessis v Road Accident Fund 32003 (11) BCLR 1220 (SCA). This is provided that they had established a reciprocal legal duty to support each other. More specifically, it was held that such a duty of care in a permanent homosexual relationship was worthy of protection as determined by the boni mores of the South African society and the principles laid down in the Bill of Rights.
Prior to the decision in Paixão v RAF, however, the dependent's action was not available to unmarried persons in permanent heterosexual life partnerships.
Paixão v RAF - the facts
The plaintiffs, Maria Angelina Paixão (Paixão) and her daughter Michelle Orlanda Santos (the Plaintiffs), sued the defendant, the Road Accident Fund, under section 17(1) of the Road Accident Fund Act, No. 56 of 1996, for loss of maintenance and support arising from the death of José Adelino Do Olival Gomes (Gomes) in a motor vehicle collision on 2 January 2008.
The deceased had been living with Paixão and her children at the time of his death and supported them financially. Gomes intended to marry Paixão, although he had not done so at the time of his death. Gomes had also formed a close bond with Paixão's children. This is evident from a joint will executed by Gomes and Paixão in terms of which they referred to Paixão's daughters as "our daughters". Gomes, Paixão and her daughters were accepted by their relatives, community and friends as a family unit.
The claim by the Plaintiffs raised the legal question of whether the dependent's action is available to an unmarried dependent in a permanent heterosexual life partnership (ie is it possible for an unmarried dependent in a permanent heterosexual life partnership to claim damages for loss of support from the wrongdoer who caused the death of the dependent's breadwinner?). This issue was taken to South Gauteng High Court (SGHC) for resolve.
Judgment of the SGHC
The SGHC determined that the question of whether the dependent's action is available to the Plaintiffs is to be resolved with reference to two issues of law, namely:
After considering the matter, the SGHC concluded that the deceased had promised to take care of the Plaintiffs, but had not undertaken a legally enforceable obligation to do so.
With regard to the second issue, the SGHC held that no duty of care can arise in the case of unmarried co-habitants. In fact, the SGHC specifically recorded that the extension of the dependent's action to unmarried co-inhabitants would be "an affront to the fabric of our society … and seriously erode the institution of marriage".
The SGHC, therefore, dismissed the Plaintiffs' claim, but granted leave to appeal to the SCA.
Judgment of the SCA
With regard to the first issue, the SCA concluded that, through their actions, the deceased and the Plaintiffs tacitly created a legally enforceable agreement involving reciprocal duties of care towards each other. The first issue is a factual consideration based upon the relevant facts of the matter.
After considering the boni mores of South African society in relation to the second issue, the SCA concluded that the "general sense of justice of the community" requires that the common law be developed so as to award the dependent's action to unmarried persons in permanent heterosexual life partnerships, where they have established a reciprocal duty of care.
Thus, the SCA held that the nature of an unmarried permanent heterosexual life partnership is such that the boni mores of society warrants its protection by law. It must be noted that the SCA made this finding without reference to the principles laid down in the Bill of Rights.
Current legal position
The effect of the decision in Paixão v RAF is that the unmarried dependant in a permanent heterosexual life partnership will now be able to claim damages for his or her loss of support from the wrongdoer who caused the death of the dependant's breadwinner. This is provided that the dependant can show that the deceased breadwinner had a legally enforceable duty of care towards the dependant.
The SCA was not prepared to limit the extension of the dependant's action only to permanent heterosexual relationships where there is an agreement to marry. It stated that the question to ask is whether the facts establish a legally enforceable duty of support arising out of a relationship akin to marriage. Evidence of an intention to marry will be one fact relevant to the duty to support.
This case once again shows the ever-evolving nature of South Africa's common law.
It follows a line of previous judgments where the highest courts in South Africa have moved away from only allowing a dependent's action for persons married in accordance with the Marriage Act, No. 25 of 1961.
First there was Amod v Multilateral Motor Vehicle Accident Fund 1999 (4) SA 1319 where a dependent's action was extended to persons married under Islamic law. Next came, Du Plessis v Road Accident Fund where permanent homosexual relationships were recognised for the purposes of a dependent's action. Now this judgment extends the action to unmarried persons in permanent heterosexual relationships.
This alert was drafted by Rashad Ismail, partner and Hannes Marais, candidate attorney.