THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 640/11
Reportable
In the matter between:
MARIA ANGELINA PAIXÃO
FIRST APPELLANT
MICHELLE ORLANDA SANTOS PAIXÃO
SECOND APPELLANT
v
ROAD ACCIDENT FUND
RESPONDENT
Neutral citation:
Paixão v Road Accident Fund (640/2011) [2012] ZASCA 130
(26 September 2012).

Coram:
Mthiyane DP, Cachalia, Tshiqi, Petse JJA and Southwood AJA
Heard:
10 September 2012
Delivered:
26 September 2012

Summary:
Dependants’ action – Permanent heterosexual life partnership –
reciprocal duty of support established by tacit agreement – Common law
extended to afford protection to dependants.

___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: South Gauteng High Court, Johannesburg (Mathopo J sitting as
court of first instance):
The appeal succeeds with costs. The decision of the high court is set aside and
replaced with the following:
‗(a)
The respondent is ordered to pay to the first appellant the sum of R1 707 612
million.
(b)
The respondent is ordered to pay the second appellant the sum of R 451 626.
(c)
The respondent is ordered to pay the appellants‘ taxed or agreed costs of the
action which costs are to include the costs of the actuaries, Clemans, Murfin &
Rolland.‘
___________________________________________________________________
JUDGMENT
___________________________________________________________________
CACHALIA JA (Mthiyane DP, Tshiqi, Petse JJA and Southwood AJA concurring):

[1] The main issue in this appeal concerns whether or not the common law
should be developed to extend the dependants‘ action to permanent heterosexual
relationships.

[2] The appellants, Maria Angelina Paixão and her daughter Michelle Orlanda
Santos, sued the respondent, the Road Accident Fund, under s 17(1) of the Road
Accident Fund Act 56 of 1996, for loss of maintenance and support arising from the
death of José Adelino Do Olival Gomes in a motor vehicle collision on 2 January

2008.1 The deceased had been living with the first appellant (Mrs Paixão) and her
children at the time and supported them financially. He had planned to marry her, but
had not yet done so. The South Gauteng High Court, Johannesburg (Mathopo J)2
found that the deceased had supported the appellants out of ‗gratitude‘, ‗sympathy‘
and ‗kindness‘ in return for their assistance during his illness rather than from any
legal duty, and also that it ‗would be an affront to the fabric of our society . . . and
seriously erode the institution of marriage‘ if the dependants‘ action were to be
extended to the appellants. It therefore dismissed their claims against the fund but
granted them leave to appeal to this court.

[3] The essential facts pertaining to the nature of the relationship between the
appellants and the deceased are not in dispute. They emerge from the stated case
and further evidence adduced by three witnesses who testified on behalf of the
appellants – Mrs Paixão herself, Fatima Regina Santos Paixão, her eldest daughter
and Mrs Theresa Goncalves, a close family friend. The fund adduced no rebuttal
evidence. It‘s cross-examination of the three witnesses was aimed at impugning the
appellants‘ assertion that the deceased had had a legal duty rather than merely a
moral commitment to support them.

[4] The facts are these: Mrs Paixão was born in June 1957 on the Portuguese
Island of Madeira, where she received her primary school education up to standard
four. It is not clear when she came to South Africa. She married Manuel Paixão in

1 Section 17 of the Act provides: ‗(1) The Fund or an agent shall—
(a)
subject to this Act, in the case of a claim for compensation under this section arising from
the driving of a motor vehicle where the identity of the owner or the driver thereof has been
established;
(b)
subject to any regulation made under section 26, in the case of a claim for compensation
under this section arising from the driving of a motor vehicle where the identity of neither
the owner nor the driver thereof has been established,
be obliged to compensate any person (the third party) for any loss or damage which the third party
has suffered as a result of any bodily injury to himself or herself or the death of or any bodily injury to
any other person, caused by or arising from the driving of a motor vehicle by any person at any place
within the Republic, if the injury or death is due to the negligence or other wrongful act of the driver or
of the owner of the motor vehicle or of his or her employee in the performance of the employee‘s
duties as employee: Provided that the obligation of the Fund to compensate a third party for non-
pecuniary loss shall be limited to compensation for a serious injury as contemplated in subsection
(1A) and shall be paid by way of a lump sum.‘
2 Paixão and another v Road Accident Fund [2011] ZAGPJHC 68 (1 July 2011).

1980. Three daughters were born of this union: Fatima, Marlize and Michelle, the
second appellant. She is the youngest and was born in February 1991. Manuel
Paixão died in June 2000. After his death Mrs Paixão commenced formal
employment for the first time as a chef in a transport company where her husband
had previously been employed.

[5] Two years later, in 2002, she met the deceased who she had engaged to do
maintenance work on her house. They became good friends. At the time he was
married to Mrs Healdina De Jesus Carreira Melro according to Portuguese law. They
were unhappy and had been living apart for some time.

[6] The relationship between the deceased and Mrs Paixão grew as did his bond
with her daughters. In May 2003, Fatima married. The deceased paid for the
wedding. Fatima testified that he told her that he wished to pay because ‗he felt
responsible for us (and) he wanted to be part of our family . . . of our lives‘.

[7] In October 2003, the deceased fell ill and was hospitalised. Upon his
discharge from hospital Mrs Paixão offered to nurse and support him at her home
until he was able to return to work. He accepted the offer and began living with her
and her two unmarried daughters in a ‗permanent life partnership‘. He was not
formally divorced from his wife at the time. But that marriage was, for all practical
purposes, over.

[8] During their cohabitation, the deceased paid for everything. Mrs Paixão was
retrenched in February 2004, and his was the sole income of their household. The
deceased did not want her to work and undertook to support her and the children. He
assured her that he would marry her as soon as his divorce from his wife was
finalised. He also took care of her, as he had promised to do, by taking full
responsibility for the family‘s food, holidays, university fees of the second daughter,
Marlize, and Michelle‘s school fees. According to Mrs Goncalves he assumed this
obligation ‗because he was living with her (Mrs Paixão) and she was his wife‘. By this

she meant that the community acknowledged that they were living together as if they
were married.

[9] Two significant events occurred in June 2005. First, the deceased divorced
Mrs Melro according to South African law. However, he felt constrained not to marry
Mrs Paixão before his divorce was also concluded and recognised in Portugal.
Second, he executed a Joint Will with Mrs Paixão in which they nominated each
other ‗as the sole and universal heirs of our entire estate and effects of the first dying
of us‘. The Will went on to say that in the event of their simultaneous deaths their
assets were to be consolidated and Mrs Paixão‘s three daughters – referred to in the
Will as ‗our daughters‘ – were to inherit in equal shares. If the event happened
before the daughters turned 21, a trust was to be created for their benefit.

[10] In June 2007 the deceased‘s divorce from his wife was concluded in Portugal.
There were now no legal or practical impediments to his marrying Mrs Paixão and
they began making arrangements to marry. They travelled to Portugal where he
introduced her to his parents, who apparently approved of their relationship. They
planned to be married in Portugal on 12 April 2008. The date was chosen to coincide
with his parents‘ 50th wedding anniversary, which was to be celebrated in Portugal.
To this end, in November 2007, he asked Mrs Goncalves to assist with the flight
details. Sadly, he died two months later before they could make the journey.
Mrs Paixão made arrangements for his body to be flown to Portugal for burial
according to his wishes.

[11] The appellants contend that before and during the period of cohabitation the
deceased had contractually undertaken to maintain and support them, was legally
obliged to do so and would have done so for the remainder of Mrs Paixão‘s life and
until Michelle became self-supporting. The fund maintains that the appellants did not
establish a legally enforceable agreement between the deceased and Mrs Paixão,
and even if they did, the agreement is not enforceable against a third party such as
the fund.

[12] A claim for maintenance and loss of support suffered as a result of a
breadwinner‘s death is recognised at common law as a ‗dependants‘ action‘.3 The
object of the remedy is to place the dependants of the deceased in the same
position, as regards maintenance, as they would have been had the deceased not
been killed.4 The remedy has been described as ‗anomalous, peculiar and sui
generis‘ because the dependant derives her right not through the deceased or his
estate but from the fact that she has suffered loss by the death of the deceased for
which the defendant is liable.5 However, only a dependant to whom the deceased,
whilst alive, owed a legally enforceable duty to maintain and support may sue in
such an action.6 Put differently the dependant must have a right, which is worthy of
the law‘s protection, to claim such support.7 So if a dependant institutes a claim
under the Act, she would be entitled to compensation from the fund for her proven
loss if she establishes this right.8

[13] The existence of a dependant‘s right to claim support which is worthy of the
law‘s protection, and the breadwinner‘s correlative duty of support, is determined by
the boni mores criterion or, as Rumpff CJ in another context put it in Minister van
Polisie v Ewels,9 the legal convictions of the community. This is essentially a judicial
determination that a court must make after considering the interplay of several
factors: ‗the hand of history, our ideas of morals and justice, the convenience of
administering the rule and our social ideas of where the loss should fall‘.10 In this
regard considerations of ‗equity and decency‘ have always been important.11
Underpinning all of this are constitutional norms and values. So the court is required
to make a policy decision based on the recognition that social changes must be
accompanied by legal norms to encourage social responsibility.12 By making the boni

3 Amod v Multilateral Vehicle Accidents Fund 1999 (4) SA 1319 (A) para 6.
4 Legal Insurance Company Ltd v Botes 1963 (1) SA 608 (A) at 614D-F.
5 Santam Bpk v Henery 1999 (3) SA 421 (SCA) at 429E-I.
6 Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838A-B.
7 J Neethling, J M Potgieter and P J Visser The Law of Delict 5 ed at 257 n 39; Santam Bpk v Henery
1999 (3) SA 421 (SCA) at 429C-D; Amod v Multilateral Vehicle Accidents Fund 1999 (4) SA 1319
(SCA) para 12. See the commentary on these cases by J Neethling and J M Potgieter ‗Uitbreiding van
die Toepassingsgebied van die Aksie van Afhanklikes‘ (2001) THRHR 484.
8 Section 17(1) of the Road Accident Fund Act 56 of 1996.
9 Minister van Polisie v Ewels 1975 (3) SA 590 (A).
10 Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 27G-I.
11 Amod v Multilateral Vehicle Accidents Fund 1999 (4) SA 1319 (A) para 10.
12 Cf P Q R Boberg The Law of Delict: Aquilian Liability vol 1 at 214.

mores the decisive factor in this determination, the dependants‘ action has had the
flexibility to adapt to social changes and to modern conditions.

[14] Although the precise scope of the dependants‘ action is unclear from the old
Roman-Dutch jurists, there is a strong suggestion that it was not confined only to
those classes of persons to whom the breadwinner had a legal obligation to support,
but was also available to those whom the deceased ‗was accustomed to support
from a sense of duty‘.13 In Amod v Multilateral Vehicle Accidents Fund14 Mahomed
CJ put it thus:
‗[7]
The precise scope of the dependant's action is unclear from the writings of the old
Roman-Dutch jurists. De Groot extends it to ―those whom the deceased was accustomed to
aliment ex officio, for example his parents, his widow, his children . . . .‖ This and other
passages in De Groot's writings perhaps support his suggestion that the action was
competent at the instance of any dependant within his broad family whom he in fact
supported whether he was obliged to do so or not but this is unclear. The same uncertainty
but tendency to extend the dependant's action to any dependant enjoying a de facto close
familial relationship with the breadwinner is also manifest in Voet 9.2.11 who seeks to accord
the dependant's action to the breadwinner's, ―wife, children and the like‖ (―uxori, liberis,
similibusque‖).‘

[15] However, as this court observed in Amod, the old authorities appeared to be
anxious to recognise the existence of a dependants‘ action for the ‗family‘ members
of the deceased.15 But it cannot be stated conclusively that they intended only
relationships by blood or marriage to fall within its ambit.16 And given the sui generis
character of the remedy there seems to be no proper reason to restrict it only to
family or blood relationships when social changes no longer require this.

[16] I mentioned earlier that the remedy was given only to dependants to whom
the deceased owed a legal duty to support or maintain, the courts nevertheless
applied it flexibly. So, even though it did not occur to the jurists of the seventeenth

13 Amod para 7 n 3.
14 Amod para 7.
15 Amod para 8.
16 Santam Bpk v Henery 1999 (3) SA 421 (SCA) at 426F-G.

century to extend the remedy to a husband, the court in Union Government (Minister
of Railways and Harbours) v Warneke17 was able to do so by adapting it to
‗conditions of modern life‘. The remedy was thus gradually extended to include new
classes of persons that fell within its rationale. Hence the courts have recognised a
husband‘s claim for the loss of his injured wife‘s support;18 a claim of a divorcee, who
had been receiving maintenance payments from her erstwhile husband pursuant to a
court order at the time of his death;19 a widow‘s claim arising from a marriage under
African customary law;20 a claim of a Muslim widow whose marriage under Islamic
law had not been registered as a civil marriage under the Marriage Act 25 of 1961;21
and a claim by a partner of a same-sex permanent life relationship, who had tacitly
undertaken reciprocal duties of support with the deceased.22 In extending the
remedy to same sex partnerships Cloete JA said that this ‗would be an incremental
step to ensure that the common law accords with the dynamic and evolving fabric of
our society as reflected in the Constitution, recent legislation and judicial
pronouncements‘.23

[17] The case for the appellants rests on two legs: 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 this regard, Mr Ancer, who appears for the
appellants, submits that their constitutional right to equality and dignity would be
violated if a duty of support is not recognised for permanent life partnerships, but is
in the case of formal marriages.24 Mr Steven Budlender, who appears for the fund,
takes issue with both contentions.

17 Ibid para 9;Union Government (Minister of Railways and Harbours) v Warneke 1911 AD 657 at 665.
18 Abbott v Bergman 1922 (AD) 53 at 55-56.
19 Santam Bpk v Henery 1999 (3) SA 421 (SCA).
20 Zimnat Insurance Co Ltd v Chawanda 1991 (2) SA 825 (ZS).
21 Amod v Multilateral Vehicle Accidents Fund 1999 (4) SA 1319 (SCA).
22 Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA).
23 Ibid para 37.
24 Section 9 of the Constitution provides:
‗(1)
Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative and other measures designed to protect or advance
persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

[18] First it must be decided whether there was an agreement creating a binding
legal obligation between the appellants and the deceased. An agreement may be
made expressly or tacitly. An express agreement may be made orally or in writing. A
tacit agreement is inferred from the surrounding circumstances and conduct of the
parties. In either case it is for the court to decide whether a contract probably came
into existence. The high court came to the conclusion that the deceased had merely
promised to take care of the Paixão family, but had not undertaken a legally
enforceable obligation to do so.25

[19] I disagree with this conclusion. In my view, the evidence indicating that the
deceased and the Paixão family had, at least tacitly, undertaken a reciprocal duty of
support is compelling. They began living together in October 2003 when Mrs Paixão
had offered to nurse him at her home after his discharge from hospital. He accepted
the offer and continued living with her after his recovery. The high court held that ‗the
inference that can be drawn from [her] gesture is that after [Mrs Paixão] and her
children looked after him after his discharge from hospital, he felt obliged to repay
their kindness by assisting them with monthly expenses‘. I do not think that this is the
‗most plausible probable inference‘ from a fair reading of all the evidence. 26

[20] The evidence shows that after his recovery he lived with the Paixão family in a
mature, committed and loving ‗family‘ relationship. They were accepted by their
relatives, community and friends as a family unit. They pooled their resources and,
when she was retrenched, he supported the family financially as if they were his
own. Indeed the evidence establishes that he expressly said that he regarded them

(3)
The state may not unfairly discriminate directly or indirectly against anyone on one or more
grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and
birth.
(4)
No person may unfairly discriminate directly or indirectly against anyone on one or more
grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit
unfair discrimination.
(5)
Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is
established that the discrimination is fair.‘ (Emphasis added.)
Section 10 provides: ‗Everyone has inherent dignity and the right to have their dignity respected and
protected.‘
25 Paixão and another v Road Accident Fund [2011] ZAGPJHC 68 (1 July 2011) paras 31-33.
26 Joel Melamed and Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A) at 164G-165G;
R H Christie and G B Bradfield Christie‘s Law of Contract in South Africa 6 ed 86-87.

as his family. There can be no stronger indication that he regarded Mrs Paixão and
her daughters as his family than from the content of their Joint Will – he not only
made her the sole heir of his estate but provided for the massing of their estates in
the event of simultaneous death and nominated ‗our children‘ as their heirs also
making provision for them to benefit from a trust. These provisions are common in
wills of married people with children. The facts here are remarkably similar to those
in Du Plessis where the court held that that the plaintiff had proved that the parties
had tacitly undertaken a reciprocal duty of support to one another.27

[21] It is significant that the deceased assumed these obligations while planning to
marry Mrs Paixão as soon as it was practically possible to do so. They would have
married earlier if they were not confronted with the obstacle of his first having to be
officially divorced in Portugal. Put another way there was clearly a tacit agreement
that he would assume the obligation to support the family before the marriage – the
marriage would change nothing except for the relationship being formally
recognised.

[22] The court below held that a mere promise to marry did not attract any legal
obligation on the deceased‘s part. This is correct.28 However, this case does not
concern breach of a promise to marry, but requires us to consider whether or not the
nature of the relationship between the parties gave rise to a reciprocal duty of
support, which the law must protect. In my view the obligations undertaken by the
deceased were akin to a pactum de contrahendo, which is an agreement to make a
contract in the future.29 This is different from a mere promise to contract, which is not
binding. In a case of a pactum de contrahendo one or both parties may undertake to
perform certain duties before the ‗main agreement‘ comes into effect. Such
undertakings are enforceable.30 I find that the most plausible probable inference from
the facts is that the deceased undertook to support and maintain the Paixão family
before formally entering into a marriage contract.

27 Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) paras 14-16.
28 Van Jaarsveld v Bridges 2010 (4) SA 558 (SCA) para 8.
29 Per Corbett JA in Hirchowitz v Moolman 1985 (3) SA 739 (A) at 765I.
30 R H Christie and G B Bradfield Christie‘s Law of Contract in South Africa 6 ed 39-40.

[23] Of course the mere fact that the parties had a binding agreement inter se
does not mean that it was enforceable against third parties such as the fund. Put
another way the appellants had to establish not only that they had an enforceable
agreement against the deceased but that the obligations created by the nature of
their relationship were worthy of the law‘s protection.31 As I have said this must be
determined by reference to the boni mores criterion.

[24] Before I consider this question it is necessary to review the cases that have
dealt with problems concerning the duty of support in permanent life partnerships. In
Du Plessis v Road Accident Fund,32 which concerned a dependant‘s action, this
court said that to the extent that the common law denies a survivor of a permanent
life relationship similar to marriage the right to claim support from the fund, but allows
the claim for a spouse of a marriage, the differentiation unfairly discriminates against
him and unjustifiably infringes his right to equality in s 9 of the Constitution.33 It thus
concluded that where same-sex partners have established a reciprocal legal duty of
support that duty was worthy of protection,34 but left open the question whether the
dependants‘ action should be extended generally to unmarried parties in
heterosexual relationships or to any other relationships.35 In extending the protection
of the common law to same-sex partnerships, the court found support in the
judgment of the Constitutional Court in Satchwell v President of the Republic of
South Africa36 which had held that it was unfairly discriminatory to afford statutory
benefits to spouses in heterosexual marriages but not to same-sex partners who had
established a permanent life relationship similar to marriage. The Constitutional
Court, however, emphasised that this did not mean that benefits provided to spouses
in legally recognised marriages should be extended to same sex partners who had
not undertaken reciprocal duties of support37 – an issue that arose in Volks NO v
Roberson.38

31 Neethling et al The Law of Delict at 259.
32 Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA).
33 Ibid para 25.
34 Ibid para 33.
35 Ibid para 43.
36 Satchwell v President of the Republic of South Africa 2002 (6) SA 1 (CC) para 25.
37 See generally D S P Cronje and J Heaton South African Family Law 3 ed at 249-252, which
discusses the legal protection the courts have given to same-sex life partnerships. Parliament has
since enacted the Civil Union Act 17 of 2006. This Act puts same-sex and heterosexual unions on the

[25] Here the Constitutional Court was concerned with whether the protection
given to a ‗survivor‘ of a marriage under the Maintenance of Surviving Spouses Act
27 of 1990 (the Maintenance Act), which grants to surviving spouses the right to
claim maintenance from the estates of deceased spouses, should also be afforded to
survivors in heterosexual permanent life partnerships. In this regard the court had to
consider whether by excluding survivors of permanent life partnerships from such
protection, the Maintenance Act unfairly discriminated against them on the ground of
their marital status. The court concluded that it was not unfair to distinguish between
survivors of marriage and survivors of heterosexual cohabitation.39 It arrived at this
conclusion because of the importance it attached to ‗the legal privileges and
obligations‘ by the law of marriage which accords benefits to married people but not
to unmarried people. The maintenance benefit in s 2(1) of the Maintenance Act,40 the
court said, was one such benefit.41 In coming to this conclusion the court said the
following:
‗There are a wide range of legal privileges and obligations that are triggered by the contract
of marriage. In a marriage the spouses‘ rights are largely fixed by law and not by agreement,
unlike in the case of parties who cohabit without being married.
. . . The distinction between married and unmarried people cannot be said to be unfair when
considered in the larger context of the rights and obligations uniquely attached to marriage.
Whilst there is a reciprocal duty of support between married persons, no duty of support
arises by operation of law in the case of unmarried cohabitants. The maintenance benefit in
section 2(1) of the Act falls within the scope of the maintenance support obligation attached
to marriage. The Act applies to persons in respect of whom the deceased person (spouse)
would have remained legally liable for maintenance, by operation of law, had he or she not
died.
. . . [I]t is not unfair to make a distinction between survivors of a marriage on the one hand,
and survivors of a heterosexual cohabitation relationship on the other. In the context of the
provision for maintenance of the survivor of a marriage by the estate of the deceased, it is

same footing by allowing both to formalise their unions the effect of which is that they have the same
legal consequences as a civil marriage concluded under the Marriage Act 25 of 1961.
38 Volks NO v Robinson 2005 (5) BCLR 466 BC (CC).
39 Ibid para 60.
40 Section 2(1) provides:
‗If a marriage is dissolved by death after the commencement of this Act the survivor shall have a claim
against the estate of the deceased spouse for the provision of his reasonable maintenance needs
until his death or remarriage in so far as he is not able to provide therefor from his own means and
earnings.‘
41 Ibid Volks paras 57-60.

entirely appropriate not to impose a duty upon the estate where none arose by operation of
law during the lifetime of the deceased. Such an imposition would be incongruous, unfair,
irrational and untenable.‘

[26] For present purposes I make two observations about this judgment: First,
although the court stated that no reciprocal duty of support arises by operation of law
in the case of unmarried cohabitants it also said that this does not preclude such a
duty from being fixed by agreement42 – the case advanced by the appellants.
Second, the purpose of the Maintenance Act43 is very different from the rationale and
development of the dependants‘ action at common law, which is sui generis. In the
case of the former s 2(1) of the Maintenance Act provides for the reasonable
maintenance needs of a party to a marriage from the estate of a deceased spouse.
The issue before the court was therefore whether a spousal benefit arising from a
legally recognised marriage should also be available to a surviving partner of a life
partnership. The object of the remedy in a dependants‘ action, on the other hand, is
to place the dependants of the deceased, to whom the deceased owed a legally
enforceable duty to support and maintain, in the same position as they would have
been, as regards support and maintenance, had the deceased not been unlawfully
killed by a wrongdoer. The right of a dependant to sue for this loss arises because
the wrongdoer unlawfully caused the termination of a legally enforceable duty of
support – it is not a spousal benefit that accrues to a dependant only by virtue of a
formally recognised marriage.44

[27] Volks, therefore, does not stand in the way of the appellants‘ submission that
the common law may be developed to extend the dependants‘ action generally to
unmarried parties in heterosexual relationships or to any other relationships – the
question left open in Du Plessis v Road Accident Fund.45 It is to this question that I
must now turn.

42 Ibid para 58.
43 Ibid paras 36-39.
44 B Smith and J Heaton ‗Extension of the dependant‘s action to heterosexual life partners after Volks
NO v Robinson and the coming into operation of the Civil Union Act – thus far and no further?‘ (2012)
THRHR 472 at 479.
45 Du Plessis v Road Accident Fund 2004 (1) 359 (SCA) para 43. It follows too that to the extent that
the court in Susara Meyer v Road Accident Fund (Unreported) Case No: 29950/2004 28/3/2006,
found that Volks supported its rejection of a dependant‘s claim of a permanent life partnership, it
erred.

[28] Mr Budlender submits that it is inappropriate for this court to develop the
common law to include unmarried heterosexual relationships within its remit for two
reasons: first, because of practical problems for defendants such as the fund to
refute a plaintiff‘s reliance on a life partnership to support the assertion of a
reciprocal duty of support; second, because the extension of legal protection to
unmarried heterosexual partners should be dealt with comprehensively by
parliament instead of the courts doing so thereby opening the floodgates to
indeterminate liability.

[29] I appreciate that it is not always easy for defendants in the fund‘s position to
refute evidence of a plaintiff dependant‘s assertion that the deceased had
undertaken a duty to support him or her. But this concern, I think, is overstated. A
plaintiff‘s assertion, without more, that he or she was in life partnership, cannot be
taken as sufficient proof of this fact. (In this case the fund conceded that the
relationship was a life partnership.) Proving the existence of a life partnership entails
more than showing that the parties cohabited and jointly contributed to the upkeep of
the common home. It entails, in my view, demonstrating that the partnership was
akin to and had similar characteristics – particularly a reciprocal duty of support – to
a marriage.46 Its existence would have to be proved by credible evidence of a
conjugal relationship in which the parties supported and maintained each other. The
implied inference to be drawn from these proven facts must be that the parties, in the
absence of an express agreement, agreed tacitly that their cohabitation included
assuming reciprocal commitments – ie a duty to support – to each other. Courts
frequently undertake this exercise without much difficulty – as this and other cases
such as Amod, Satchwell and Du Plessis demonstrate. Life partnerships therefore do
not present exceptional evidential difficulties for defendants.47

[30] Mr Budlender‘s second reason, that the courts should not develop the
common law to include heterosexual life partnerships, but rather leave their
regulation to the lawmaker, is also not persuasive. We are not here embarking on an
exercise that impinges on the lawmaker‘s responsibility for law reform in this area,
which has commenced with the South African Law Commission‘s draft Domestic

46 See D S P Cronje and J Heaton (above) at 243.
47 Cf McDonald v Young 2012 (3) SA 1 (SCA) para 14.

Partnerships Bill, 2008;48 we are performing a duty that falls properly within the
province of the courts ie to decide ‗on incremental changes which are necessary to
keep the common law in step with the dynamic and evolving fabric of our society‘.49
The courts have always had this duty and s 173 of the Constitution now explicitly
recognises it.50 What we are required to decide here is whether the evolving fabric of
our society requires the common law to undergo an incremental change to extend
the dependants‘ action to include heterosexual life partners. A failure to confront this
question squarely, when the circumstances of this case and the interests of justice
so require, would be an abdication of our judicial responsibility.

[31] Our courts have emphasised the importance of marriage and the nuclear
family as important social institutions of society, which give rise to important legal
obligations, particularly the reciprocal duty of support placed upon spouses.51 The
fact is, however, that the nuclear family has, for a long time, not been the norm in
South Africa. South Africans have lower rates of marriage and higher rates of extra-
marital child-bearing than found in most countries.52

[32] Millions of South Africans live together without entering into formal marriages.
This is simply a fact of life, although, as Mokgoro J and O‘Regan J observed in
Volks, their circumstances differ significantly:
‗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.‘53
I would add that in addition to legal or religious constraints that the learned judges
mention, many others are unable to marry for social, cultural or financial reasons.

48 For a critical discussion of this Bill see the LLD Thesis of Bradley Shaun Smith ‗The development of
South African Matrimonial Law with specific reference to the need for and application of a domestic
partnership rubric‘ University of the Free State (2009).
49 Du Plessis & others v De Klerk & another 1996 (3) SA 850 (CC) para 61.
50 Section 173 of the Constitution provides:
‗The Constitutional Court, Supreme Court of Appeal and High Courts have the inherent power to
protect and regulate their own process, and to develop the common law, taking into account the
interests of justice.‘
51 Volks NO v Robinson 2005 (5) BCLR 466 BC (CC) para 52.
52 D Budlender and F Lund ‗South Africa: A Legacy of Family Disruption‘ (2011) Development and
Change 925 at 927-932.
53 Volks NO v Robinson 2005 (5) BCLR 466 BC (CC) para 120.

[33] Among the reasons for the decline in formal marriages is ‗the legacy of family
disruption‘ caused by apartheid‘s migrant labour system,54 which remains a feature
of South Africa‘s current economy. Many migrant workers enter into permanent
relationships and have families, outside of their formal marriages, that they support
and maintain.

[34] Life partnerships have therefore increasingly received legislative and judicial
recognition reflecting the changing boni mores.55 In line with this trend, in Verheem v
Road Accident Fund,56 the North Gauteng High Court recently extended the scope of
the dependants‘ action to cohabiting partners in a heterosexual permanent life
partnership in circumstances remarkably similar to those in this case.57 I pause to
mention that in the present case, Mathopo J held himself not bound by Verheem
because the facts differed. But without considering and deciding that Verheem was
clearly wrong, this was an incorrect basis to distinguish the cases.58

[35] I revert to the circumstances of this case. The facts show that the community
accepted the deceased, Mrs Paixão and her children as a family and did not regard
their cohabitation as opprobrious. Indeed, as I have shown, cohabitation outside of a
formal marriage is now widely practised and accepted by many communities
universally.59 They had, however, chosen to get married, were committed to this
course, and had commenced plans to this end. Crucially they had already
undertaken reciprocal duties of support, agreed to formalise their relationship
through marriage and executed a family will as evidence of their commitment to each
other.

54 D Budlender and F Lund ‗South Africa: A Legacy of Family Disruption‘ (2011) Development and
Change 925 at 927-932.
55 See D S P Cronje and J Heaton (above) Chapter 20 para 20.3.1.
56 Verheem v Road Accident Fund 2012 (2) SA 409 (GNP).
57 Ibid para 12.
58 See generally B S Smith ‗Extension of the dependant‘s action to heterosexual life partners after
Volks NO v Robinson and the coming into operation of the Civil Union Act – thus far and no further?‘
(2012) THRHR 472; ‗The dependant‘s action in the context of heterosexual life partnerships: A
consideration of the Verheem and Paixão cases‘. Paper presented at the Society of Law Teachers of
Southern Africa Conference on 10 July 2012.
59 Volks NO v Robinson 2005 (5) BCLR 466 (CC) para 119.

[36] I mentioned earlier there is some suggestion in the old authorities that the
dependants‘ action was available even to persons to whom the breadwinner felt a
‗sense of duty‘ to support and not only to those to whom a legal duty was owed. The
deceased in this case undertook a duty to maintain and support his adopted ‗family‘
out of a profound, deep and loving sense of duty, and did so. I have found that the
appellants tacitly established the existence of legally enforceable duty of support.
Having regard to the incremental extension of the dependants‘ action through the
times, our ideas of morals and justice, and of equity and decency, I can see no
reason of principle or policy not to extend the protection of the common law to the
appellants here. In my view, the ‗general sense of justice of the community‘ demands
this.60

[37] Having come to this conclusion I need not consider the constitutional question
referred to earlier in para 17 – whether it would amount to unfair discrimination for
the law to give protection to the duty of support arising from a marital relationship but
not to a relationship where the duty arises in the context of heterosexual permanent
life partnerships.

[38] Mr Budlender submits further that if we are inclined to develop the common
law so as to extend its protection to the appellants in the circumstances of this case,
we should limit its effect only to instances where there is an agreement to be
married. In considering this submission I am mindful of the cautionary remarks made
by Corbett JA (as he then was), on the occasion of the Third Oliver Schreiner
Memorial Lecture, that when developing the common law the court should confine
itself to the particular legal problem under consideration rather than expound the law
generally on the topic.61

[39] The difficulty I have with Mr Budlender‘s submission is that extending the
protection of the dependants‘ action only to permanent heterosexual relationships
where there is an agreement to marry requires us to draw an arbitrary line between

60 Schultz v Butt 1986 (3) SA 667 (A) 679B-C.
61 M M Corbett ‗Aspects of the Role of Policy in the Evolution of our Common Law‘ (1987) SALJ 52 at
57.

those relationships and most others where there is no such agreement. The proper
question to ask is whether the facts establish a legally enforceable duty of support
arising out of a relationship akin to marriage. Evidence that the parties intended to
marry may be relevant to determining whether a duty of support exists, as in this
case. But it does not mean that there must be an agreement to marry before the duty
is established. And once a dependant establishes the duty, the law ought to protect
it.

[40] By coming to this conclusion I do not intend to demean the value or
importance that our society places on marriage as an institution as the high court
feared.62 On the contrary, I am extending the protection afforded to the dependants
of the deceased precisely because the nature of their relationship is similar to a
family relationship arising from a legally recognised marriage. I therefore hold that
the dependants‘ action is to be extended to unmarried persons in heterosexual
relationships who have established a contractual reciprocal duty of support.

[41] Mr Budlender also contends that even if Mrs Paixão succeeds in her claim,
her daughter, Michelle, should not. But once it is established that the deceased had
undertaken to support Mrs Paixão and her children, including Michelle, and did so, I
cannot see any reason why Michelle‘s claim should fail. Her claim, like her mother‘s,
arose from the same ‗family relationship‘.

[42] The parties have agreed on the extent of the appellants‘ losses. In the result
the appeal succeeds with costs. The decision of the high court is set aside and
replaced with the following:
‗(a)
The respondent is ordered to pay to the first appellant the sum of R1 707 612
million.
(b)
The respondent is ordered to pay the second appellant the sum of R 451 626.

62 Above para 2.

(c)
The respondent is ordered to pay the appellants‘ taxed or agreed costs of the
action which costs are to include the costs of the actuaries, Clemans, Murfin &
Rolland.‘

__________________
A CACHALIA
JUDGE OF APPEAL

APPEARANCES

For Appellant:
B Ancer SC

Instructed by:

Norman Berger & Partners Inc, Johannesburg

Lovius Block, Bloemfontein

For Respondent:
S Budlender

Instructed by:

Lindsay Keller, Johannesburg

Matsepes Inc, Bloemfontein

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY
MEDIA SUMMARY – JUDGMENT DELIVERED IN COURT OF
26 September 2012

STATUS: Immediate

Paixão v Road Accident Fund (640/2011) [2012] ZASCA 130 (26 September 2012)

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal (SCA) handed down judgment today in an appeal
from the South Gauteng High Court, Johannesburg (High Court). The matter
concerned the common law dependent’s action and, specifically, whether the
common law protection it affords should be available to parties in a permanent
heterosexual life partnership.

Mrs Paixão and her daughter sued the Road Accident Fund for loss of maintenance
and support as a result of the death of Mr Gomes. They contended that Mr Gomes
had contractually undertaken to maintain and support them, was legally obliged to
so, and would have done so for the remainder of Ms Paixão’s life and until her
daughter became self-supporting.

Mrs Paixão and Mr Gomes had been living together and had planned to marry. Mr
Gomes supported Mrs Paixão and her children financially, had formed a strong bond
with the children, and had a joint will wherein they referred to “our daughters”. On
her part, Ms Paixão nursed and supported Mr Gomes when he was unable to work.
They were accepted by their relatives, community and friends as a family unit.

The High Court, in a judgment wherein it was said that it “would be an affront to the
fabric of society” and “seriously erode the institution of marriage” if the dependants’
action would be extended to Ms Paixão and her daughter, found that no legal duty of
support had been owed to them. It dismissed their claims.

The SCA recognised that only those with a legally enforceable duty to maintain and
support could successfully institute the dependant’s action. A dependant must have
a right which is worthy of the law’s protection to claim support. Whether that is so is
determined by the legal convictions of the community, which is in turn determined by
among other things society’s history, its ideas of morals and justice, its perception of
where the loss should fall, and the convenience of administering the rule. The court
found that, as the legal convictions of the community is the decisive factor in the
determination, the dependents’ action has always had the flexibility to adapt to social
changes and modern conditions. It held that there is no reason to restrict the action
to traditional family and blood relationships when social change does not require it.
The SCA recognised that the nuclear family has, for a long time, not been the norm
in South Africa and that millions of South Africans live together without entering into
formal marriages. This was so for religious, legal, social, cultural and financial
reasons. What is more,  South Africa’s inherited legacy of family disruption caused
by apartheid’s migrant labour system

On the facts, it found that there was a tacit agreement creating a binding and legal
obligation between Mrs Paixão and her daughter, and Mr Gomes. It found further
that Mrs Paixão and her daughter had established that they had an enforceable
agreement with Mr Gomes and that the obligations created by the nature of their
relationship was worthy of the law’s protection. In coming to this conclusion it found
that the Road Accident Fund would not have undue practical problems in refuting
claims and that not recognising the claim, in deference to the legislator, would be an
abdication of judicial responsibility.

Thus, held the court, where an agreement between parties to a permanent
heterosexual life partnership establishes a reciprocal duty of support it should be
afforded the protection of the common law dependants’ action. The general sense of
justice of the community demanded it. Accordingly, the appeal was upheld.