Uncategorized30 April 20200 comments

The rights of fiancés and loss of maintenance and support claims against the Road Accident Fund

Are dependants of deceased breadwinners entitled to claim from the Road Accident Fund in the form of loss of support?

Section 17(1) of the Road Accident Fund Act 56 of 1996 makes provision for claims for loss of support against the Road Accident Fund where the breadwinner passed away as a result of a motor vehicle accident which resulted in the dependant’s loss of support provided by the breadwinner.

To claim from the RAF, a third party must be responsible for the motor vehicle accident that caused the death of the deceased. A dependant will not be able to claim loss of support from the RAF where the breadwinner was the sole cause of the accident and therefore the dependant will need to prove the proverbial 1% negligence on the part of the third party – the so-called insured driver.

The legal basis for a claim against the RAF due to the death of any other person, is the existence of a legal duty of the deceased to support the claimant, without which the RAF would not be held liable for such a claim.

To be successful with a claim for loss of support the dependant needs to prove:

the deceased had a duty or legal obligation to support the dependant;
the deceased indeed supported the dependant at the time of his or her demise; and
the dependant was deprived of support due to the death of the deceased.

It is trite that a reciprocal duty of support between spouses is one of the invariable consequences of marriage that arises by operation of law.

The question that now arises – does the reciprocal duty to support also rest on unmarried parties in heterosexual relationships?

The locus classicus on the reciprocal duty of support in permanent life partnerships is Paixão v Road Accident Fund 2012 (6) SA 377 (SCA) where the appellant’s claim rested on two legs as recorded by the SCA, to wit: “first that an express or tacit agreement existed between the appellants and the deceased which created a binding obligation upon him to maintain and support them, and second, that the nature of the relationship, being akin to a family relationship, was such that it is deserving of the law’s protection.”

In light of the above, two questions need to be answered.

Firstly, was there an agreement creating a binding legal obligation to maintain and support between the claimant and the deceased?

Agreements may be made expressly (orally or in writing) or tacitly (inferred from the surrounding circumstances and conduct of the parties).

In Paixão v Road Accident Fund the parties began living together in October 2003, they were accepted by their relatives, community and friends as a family unit and they pooled their resources. When the plaintiff was retrenched, the deceased supported her and her children financially as if they were his own. The judge found that the most plausible probable inference from the facts was that the deceased undertook the duty to support and maintain the Paixão family before formally entering into a marriage contract.

Secondly, did the nature of the relationship between the parties gave rise to a reciprocal duty of support, which the law must protect?

Section 173 of the Constitution states that “The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice”.

The courts have the task to develop the common law with specific reference to the boni mores criterion or the legal convictions of the community.

In Paixão v Road Accident Fund the facts showed that the community accepted the deceased, Mrs Paixão and her children as a family and did not regard their cohabitation as opprobrious. The judge noted that cohabitation outside of a formal marriage is now widely practised and accepted by many communities universally.

The judge in Paixão v Road Accident Fund had to decide whether the evolution of our society required the common law to undergo an incremental change to extend a claim for loss of support to unmarried parties in heterosexual relationships or to any other relationships. He was of the view that the incremental extension of the appellant’s action through the times, our ideas of morals and justice, and of equity and decency, did not prevent the extension of the protection of the common law to heterosexual relationships. He extended the protection afforded to the appellants because of the fact that their relationship was similar to a family relationship that arose from a legally recognised marriage.

In Paixão v Road Accident Fund the right to claim loss of support was extended to include unmarried persons in permanent heterosexual relationships who have established a reciprocal duty to support.

In the recent matter of Kriek v Road Accident Fund (529/2019) [2020] ZAFSHC 42 (5 March 2020), the plaintiff instituted a claim against the RAF for loss of support following upon the death of her fiancé (life partner).

The plaintiff testified that they have been staying together as life partners from the beginning of 2012 until the deceased passed away in 2018 and that they maintained each other financially. She further testified that the deceased took her, and from time to time also her children, on vacation to places, he took out cell phone contracts for her and the children which he paid for, he paid for internet connection, the gardener and the domestic servant. The plaintiff contributed an amount of R1 500 per month to the deceased to assist with the financial obligations of the couple.

The facts showed that the plaintiff and the deceased stayed together as life partners for nearly seven years, together with the plaintiff’s two children from a previous relationship. They operated as a family unit and was accepted as such by the community and family of the deceased.

The Judge was satisfied that although no written agreement was entered into between the plaintiff and the deceased pertaining to their reciprocal duties to maintain each other, the uncontested facts testified to by plaintiff served as proof of a tacit agreement to support each other and the claimant proved her case in respect of the deceased’s duty to support on a balance of probabilities.

A fiancé will have a claim for loss of maintenance and support against the RAF if he or she can prove that a contractual reciprocal duty to support existed at the time of the deceased’s death.