THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case number : 443/2002
Reportable

In the matter between :

ANTONIE MICHAEL DU PLESSIS

APPELLANT

and

ROAD ACCIDENT FUND

RESPONDENT

CORAM :  STREICHER, FARLAM, CLOETE, LEWIS JJA,

SOUTHWOOD AJA

HEARD :
28 AUGUST 2003

DELIVERED :  19 SEPTEMBER 2003

Summary: Common law dependant’s action extended to cover partner in a same-sex
permanent life relationship similar in other respects to marriage where the deceased owed
that partner a contractual duty of support. Heir has a right to recover funeral expenses
expended by him.
_________________________________________________________

JUDGMENT

CLOETE JA/

CLOETE JA :
INTRODUCTION
[1] The plaintiff (appellant in this court) and Albert Ernest Clack (‘the
deceased’) were partners in a same-sex union when the deceased was
killed in a motor vehicle accident. The primary question on appeal is
whether the plaintiff should be entitled to claim damages for loss of
support from the defendant (respondent in this court), the Road Accident
Fund, in terms of the provisions of the Road Accident Fund Act 56 of 1996
(‘the Act’). A subsidiary question is whether the plaintiff has shown his
entitlement to claim funeral expenses incurred in burying the deceased.

[2] The court a quo dismissed both of the plaintiff’s claims and refused
leave to appeal. The present appeal is with the leave of this court.

THE FACTS AND ISSUES
[3] The plaintiff and the deceased had lived together continuously since
March 1988. In August that year they went through a ceremony which was
as close as possible to a marriage ceremony in the presence of numerous
witnesses and which was conducted by a person who was a marriage
officer (who obviously did not act in that capacity; but the plaintiff said in

evidence that he and the deceased would have married had the law
permitted it). The union between the plaintiff and the deceased was stable.
They were acknowledged by family and friends as a couple.

[4] The plaintiff was medically boarded on 1 September 1994. Before
that date he earned about R800,00 per month less than the deceased.
Thereafter, the plaintiff received a disability pension which was not
sufficient for his needs and the deceased continued to earn a salary which
was considerably in excess of the plaintiff’s pension. They continued to
pool their income. Accordingly, the deceased to a large extent maintained
the plaintiff financially for the five years after the plaintiff was boarded and
before the deceased was killed on 1 September 1999. The deceased also
promised to continue to support the plaintiff after he was boarded. The
plaintiff’s evidence on these aspects was the following:
‘Nou toe u medies geraad was het dit beteken dat jou inkomste omtrent verminder het
na ‘n derde van jou inkomste voor dit? --- Ja, dit het met ‘n aansienlike bedrag gedaal.
Daarna het Ernest jou finansieel ondersteun? --- Ja, hy het my finansieel ondersteun.
Ek het inteendeel op ‘n stadium daaraan gedink om miskien vir my ‘n ligter beroep te
kry waarin ek ook iets ekstra kon bring, maar hy het vir my gesê daarvoor is hy daar en
hy gaan nie toelaat dat ek enige beroep met my gesondheid verder beoefen nie.
Waarvoor het hy gesê is hy daar? --- Hy het gesê hy is daar om vir my finansieel te
ondersteun en in my siektetoestand sal hy vir my emosioneel en moreel bystaan en dat

hy nie sal toelaat dat ek enige beroep weer beoefen nie want ek kan, ek kan 100 jaar
oud word en hy sal, hy sal persoonlik toesien dat ek nie my gesondheid verder sal
benadeel nie.
…
Mnr Du Plessis, het u ooit twyfel in u gemoed gehad oor of Ernest sou voortgaan om
jou te onderhou? --- Daar was geen twyfel aan nie. Hy het ook altyd vir my verseker hy
is daar vir my en ek het nooit, geensins getwyfel aan sy ondersteuning en sy, en sy
sorg nie.’
In addition the plaintiff and the deceased agreed to make wills, each
bequeathing his estate to the other; and they did so – the plaintiff on 28
July 1988 and the deceased a year later on 31 July 1989.

[5] The parties have agreed that the defendant is liable under the Act to
pay to the plaintiff 75 per cent of such legally recoverable damages as the
plaintiff might prove he has suffered arising out of the death of the
deceased. The court a quo by consent made an order in terms of Rule
33(4) directing that the matter proceed to trial only on the issues of
whether the plaintiff’s claim against the defendant for loss of support is
legally recognised and the plaintiff’s right to claim for burial expenses.

[6] In terms of s 17 of the Act the defendant or an agent is, subject to the
provisions of the Act, obliged to compensate any person for any loss or

damage which that person has suffered as a result of the death of any
other person caused by or arising from the driving of a motor vehicle if the
death is due to the negligence of the driver or owner of the vehicle. Section
19(a) of the Act exempts the defendant from liability for loss or damage for
which neither the driver nor the owner of the motor vehicle which caused
the deceased’s death, would have been liable at common law.

[7] The defendant’s case is that the plaintiff’s claim for loss of support is
not maintainable in law1 and that the plaintiff has not established a right to
claim any funeral costs expended in burying the deceased. It is important
to emphasize that the submissions made on behalf of the plaintiff fell short
of requesting this court to extend the common law definition of marriage,
which requires that the union be between a man and a woman2, to
persons of the same sex.3 The submissions on behalf of the plaintiff were
rather directed towards the narrower question whether the common law
action for damages for loss of support should be developed to include a
person such as the plaintiff.

1Evins v Shield Insurance Company Limited 1980 (2) SA 814 (A) at 838A: ‘ Only a dependant to whom
the deceased was under a legal duty to provide maintenance and support may sue …’ and see Vaughan
NO vs SA National Trust and Assurance Co Limited 1954 (3) SA 667 (C) at 669F-670C and authorities
there quoted.
2 An element of the definition which has long been part of the common law  - see eg Inst.1.9.1: ‘Marriage,
or matrimony, is a joining together of a man and woman, carrying with it a mode of  life in which they are
inseparable’ (Sandars’ translation  8th ed 29).
3 As was done by the Ontario Court of Appeal in Halpern v Canada  (Attorney General) (2003) 225 DLR
(4th) 529.

THE DEPENDANT’S ACTION
[8] It is not necessary to embark upon a jurisprudential analysis of the
origins of the common law action for loss of support, or to investigate
which dependants were entitled to bring the action. It is trite that a widow
who was legally married to the deceased is entitled to bring such an action
for the unlawful killing of her husband. It is the plaintiff’s case that the
common law should be developed to place him in the same position.

[9] In Union Government v Warneke 1911 AD 657 the action was
extended so as to give an action to a husband who had suffered
patrimonial loss through the death of his wife. In Abbott v Bergman 1922
AD 53 the principle laid down in Warneke was applied to enable a
husband to sue for patrimonial loss sustained by him through non-fatal
injury to his wife. In Santam Beperk v Henery 1999 (3) SA 421 (SCA) the
action was extended to cover a divorced woman entitled to maintenance
from the deceased in terms of an order of court granted in terms of s 7(2)
of the Divorce Act 70 of 1979. Finally, a contractual right to support arising
out of a marriage in terms of Islamic law was, within defined parameters,
recognised for purposes of the dependant’s action in Amod v Multilateral
Motor Vehicle Accidents Fund (Commission for Gender Equality

Intervening) 1999 (4) SA 1319 (SCA). Amod was expressly decided
without reference to either the interim Constitution or the present
Constitution.4

[10] In Henery5 and Amod6 it was held that a dependant’s claim for loss
of support as a result of the unlawful killing of another, being a claim for
pure economic loss, will be valid if the deceased had a legally enforceable
duty to support the dependant and if the right of the dependant to such
support was worthy of protection by way of an action at the suit of the
dependant against the wrongdoer.

THE DUTY OF SUPPORT
[11] The first issue to be decided is, therefore, whether the plaintiff
proved a legally enforceable duty of support on the part of the deceased.

[12] A marriage gives rise to a reciprocal duty of support on the part of
the parties to that marriage. However, the law currently only recognises
marriages that are conjugal relationships between people of the opposite
sex. There is, nevertheless, in the words of Ackermann J in National

4 See Amod at 1332G-I, para [30].
5 At 427H-J, 429C-D and 430D-I.
6 Para [12] at 1326A and para [14].

Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2)
SA 1 (CC) para [35] ‘another form of life partnership which is different
from marriage as recognised by law. This form of life partnership is
represented by a conjugal relationship between two people of the same
sex.’7

[13] As regards the question whether two people of the same sex who
entered into a conjugal relationship could owe a similar duty of support to
one another, the Constitutional Court said in Satchwell v President of the
Republic of South Africa 2002 (6) SA 1 (CC) para [25]:
‘The law attaches a duty of support to various family relationships, for example,
husband and wife, and parent and child. In a society where the range of family
formations has widened, such a duty of support may be inferred as a matter of fact in
certain cases of persons involved in permanent, same-sex life partnerships. Whether
such a duty of support exists or not will depend on the circumstances of each case. In
the present case the applicant and Ms Carnelley have lived together for years in a
stable and permanent relationship. They have been accepted and recognised as
constituting a family by their families and friends and have shared their family
responsibilities. They have made financial provision for one another in the event of
their death. It appears probable that they have undertaken reciprocal duties of

7  See also Dawood, Shalabi and Thomas v Minister of Home Affairs 2000 (3) SA 936 (CC)  paras
[31]-[33].

support.’

[14] In the present case the case for drawing an inference that the
plaintiff and the deceased undertook reciprocal duties of support is even
stronger.The plaintiff and the deceased would have married one another if
they could have done so.  As this course was not open to them, they went
through a ‘marriage’ ceremony which was as close as possible to a
heterosexual marriage ceremony. The fact that the plaintiff and the
deceased went through such a ‘marriage’ ceremony and did so before
numerous witnesses gives rise to the inference that they intended to do
the best they could to publicise to the world that they intended their
relationship to be, and to be regarded as, similar in all respects to that of a
heterosexual married couple i.e. one in which the parties would have a
reciprocal duty of support. That having been their intention, it must be
accepted as a probability that they tacitly undertook a reciprocal duty of
support to one another.

[15] Further support for this finding is the fact that the plaintiff and the
deceased thereafter lived together as if they were legally married in a
stable and permanent relationship until the deceased was killed some 11
years later; they were accepted by their family and friends as partners in

such a relationship; they pooled their income and shared their family
responsibilities; each of them made a will in which the other partner was
appointed his sole heir; and when the plaintiff was medically boarded, the
deceased expressly stated that he would support the plaintiff financially
and in fact did so until he died.

[16] In the light of the aforegoing I am satisfied that the plaintiff proved
that the deceased undertook to support him with the intention of being
legally bound by such undertaking. The deceased, therefore, owed the
plaintiff a contractual duty of support.

IS THE DUTY WORTHY OF PROTECTION?
[17] The next question to be decided is whether the right of the plaintiff to
such support is worthy of protection by way of an action against the
defendant, or, put differently, whether the killing of the deceased should be
considered to have been a wrongful act as against the plaintiff. In Amod8,
relying on Henery, it was said that the question had to be answered in the
light of prevailing boni mores. In Knop v Johannesburg City Council 1995
(2) SA 1 (A) at 27G-I Botha JA adopted the following formulation9 of the

8 Para [12] at 1326B.
9 In Fleming The Law of Torts 4th ed at 136.

nature of the enquiry:
‘In short, recognition of a duty of care is the outcome of a value judgment, that the
plaintiff’s invaded interest is deemed worthy of legal protection against negligent
interference by conduct of the kind alleged against the defendant. In the decision
whether or not there is a duty, many factors interplay; the hand of history, our ideas of
morals and justice, the convenience of administering the rule and our social ideas as to
where the loss should fall. Hence, the incidence and extent of duties are liable to
adjustment in the light of the constant shifts and changes in community attitudes.’
The same approach was followed by Hefer JA in Minister of Law and
Order v Kadir 1995 (1) SA 303 (A) at 318D-H.

[18] In Carmichele v Minister of Safety and Security and Another  (Centre
for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) the
Constitutional Court said (para [43]):
‘This is a proportionality exercise with liability depending upon the interplay of various
factors. Proportionality is consistent with the Bill of Rights, but that exercise must now
be carried out in accordance with the “spirit, purport and objects of the Bill of Rights”
and the relevant factors must be weighed in the context of a constitutional State
founded on dignity, equality and freedom and in which government has positive duties
to promote and uphold such values.’
Nugent JA said in Minister of Safety and Security v Van Duivenboden
2002 (6) SA 431 (SCA) para [17] ‘the “legal convictions of the community”
must necessarily now be informed by the norms and values of our society

as they have been embodied in the 1996 Constitution. The Constitution is
the supreme law, and no norms or values that are inconsistent with it can
have legal validity – which has the effect of making the Constitution a
system of objective, normative values for legal purposes.’10

[19] The constitutional values relevant to the extension of the common
law sought by the plaintiff are those contained in ss 9 and 10 of the
Constitution, namely, equality and human dignity. Those sections provide:
‘9.
(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 taken.

(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.

10 See also Olitzki Property Holdings v State Tender Board and Another 2001 (3) SA 1247 (SCA) para
[12]; Premier of the Western Cape v Fair Cape Property Developers (Pty) Ltd [2003] 2 All SA 465 (SCA)
para [33]; Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) para [12].

(5)
Discrimination on one or more of the grounds listed in subsection (3) is

unfair unless it is established that the discrimination is fair.
10.
Everyone has inherent dignity and the right to have their dignity respected

and protected.’

[20] The importance of the right to equality has been repeatedly
emphasized by the Constitutional Court, eg Brink v Kitshoff NO 1996 (4)
SA 197 (CC) para [33]; Fraser v Children’s Court, Pretoria North & Others
1997 (2) SA 261 (CC) para [20]; President of the Republic of South Africa
& Another v Hugo 1997 (4) SA 1 (CC) para [41].

[21] The right to dignity is also important, as emphasized in Dawood,
Shalabi, Thomas & Others v Minister of Home Affairs11 para [35]:
‘The value of dignity in our Constitutional framework cannot therefore be doubted. The
Constitution asserts dignity to contradict our past in which human dignity for black
South Africans was routinely and cruelly denied. It asserts it too to inform the future, to
invest in our democracy respect for the intrinsic worth of all human beings. Human
dignity therefore informs constitutional adjudication and interpretation at a range of
levels. It is a value that informs the interpretation of many, possibly all, other rights…
Section 10, however, makes it plain that dignity is not only a value fundamental to our
Constitution, it is a justiciable and enforceable right that must be respected and
protected.’ (Emphasis in the original judgment.)

11 Para [12] above.

[22] In this case, as in National Coalition for Gay and Lesbian Equality &
Another v Minister of Justice & Others 1999 (1) SA 6 (CC) and in National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs and
Others 2000 (2) SA 1 CC, the rights of equality and dignity are closely
related. The Constitutional Court said in the latter case (paras [38] and
[42]):
‘The respondent’s submission that gays and lesbians are free to marry in the sense
that nothing prohibits them from marrying persons of the opposite sex, is true only as a
meaningless abstraction. This submission ignores the constitutional injunction that
gays and lesbians cannot be discriminated against on the grounds of their own sexual
orientation and the constitutional right to express that orientation in a relationship of
their own choosing.
…
The sting of past and continuing discrimination against both gays and lesbians is the
clear message that it conveys, namely, that they, whether viewed as individuals or in
their same sex relationships, do not have the inherent dignity and are not worthy of the
human respect possessed by and accorded to heterosexuals and their relationships.
This discrimination occurs at a deeply intimate level of human existence and
relationality. It denies to gays and lesbians that which is foundational to our
Constitution and the concepts of equality and dignity, which at this point are closely
intertwined, namely that all persons have the same inherent worth and dignity as
human beings, whatever their other differences may be.’

[23] The provisions of ss 9(4) and (5) of the Constitution are of particular

relevance in this case. They provide that no person may unfairly
discriminate against anyone on the ground of sexual orientation and that
discrimination on this ground is presumed to be unfair unless it is
established that the discrimination is fair.

[24] In Satchwell12 the Constitutional Court had occasion to consider the
constitutional validity of s 9 of the Judges’ Remuneration and Conditions of
Employment Act 47 of 2001. The section accords certain benefits to a
surviving spouse of a judge who dies. The Constitutional Court stated13:
‘The benefits accorded to spouses of Judges by the legislation are accorded to them
because of the importance of marriage in our society and because Judges owe a legal
duty of support to their spouses. In terms of our common law, marriage creates a
physical, moral and spiritual community of law which imposes reciprocal duties of
cohabitation and support. The formation of such relationships is a matter of profound
importance to the parties, and indeed to their families and is of great social value and
significance.’

[25] The Constitutional Court held that the section discriminated against
same-sex partners on the ground of sexual orientation which is in terms of
s 9(5) presumed to be unfair. It was of the view that our law, in only
recognizing marriages between heterosexual spouses, displayed a

12 Para [13] above.
13 Para [23].

narrowness of focus which excluded ‘many relationships which create
similar obligations and have a similar social value’. It concluded14
‘Inasmuch as the provisions in question afford benefits to spouses but not to same-sex
partners who have established a permanent life relationship similar in other respects to
marriage, including accepting the duty to support one another, such provisions
constitute unfair discrimination.’

[26] If s 9 of the Judges’ Remuneration and Conditions of Employment Act
unfairly discriminates against same-sex partners who have established a
permanent life relationship similar in other respects to marriage, including
accepting the duty to support one another, it follows logically that the
common law, insofar as it affords to a spouse an action for loss of support
against a wrongdoer who unlawfully killed the other spouse but not to a
same-sex partner who has established such a relationship, unfairly
discriminates against such same-sex partners.

[27] The common law would, nevertheless, not be in  conflict with the
Constitution if the discrimination is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom (s
36 of the Constitution). As in Satchwell15 it was not contended that this is

14 Para [24].
15 Para [13] above at para [26].

the case. Such a contention would have been untenable.

[28] Legislative developments in Europe relevant to the question under
discussion have recently been summarized and discussed in the Harvard
Law Review (vol 116, 2003) p1999, at pp2007─2012 and by Elsa Steyn,
‘On the International Recognition of Gay Love’ 2003 TSAR p340 at
pp340-1. In essence, some countries no longer require that marriage be
between a man and a woman; and some countries have introduced
various forms of registered partnerships which, at the one end of the
spectrum, treat the partners as if they are married persons and at the other,
extend benefits to them similar to the benefits enjoyed by married persons.
Significant decisions by courts in other countries include the following.

[29] In England, in Ghaidan v Godin-Mendoza [2003] 2 WLR 478 (CA) the
Court of Appeal revisited the decision of the House of Lords in Fitzpatrick v
Sterling Housing Association Ltd [2001] 1 AC 27 (HL), in which it was held
that a same-sex partner could qualify as a member of a deceased tenant’s
‘family’16 but not as his ‘spouse’ for the purposes of a tenancy protected by

16 Compare Farr v Mutual & Federal Insurance Co Ltd 2000 (3) SA 684 (C) , where an exclusion of
liability by the insurer for bodily injuries to ‘a member of the policy holders’ family normally resident with
him’ was held to apply to a person who had been in a same-sex relationship with the policy holder for the
10 years preceding the accident in which such person had been injured.

Schedule 1 to the Rent Act of 1977; and because of the provisions of the
Convention for the Protection of Human Rights and Fundamental
Freedoms, 1950, read with s 3 of the Human Rights Act 1998, held that a
same-sex partner could qualify as a ‘spouse’ of the deceased tenant. In
Bellinger v Bellinger  (2003) BHRC 127 the House of Lords made a
declaration that s 11(c) of the Matrimonial Causes Act is incompatible with
the Convention because it does not make provision for the recognition of
gender reassignment. More fundamental change in the law was left for
Parliament which is in the process of reacting17 to the decision of the
European Court of Human Rights in Goodwin v UK (2002) 13 BHRC 120
in which it was held that United Kingdom legislation should provide for a
transsexual to marry a person of the same sex.

[30] In the United States of America, three State Supreme Courts have
held that limiting the right to marry to opposite-sex couples violates the
Constitutions of those states: Baehr and Others v Lewin 852 P2d 44 (1993,
Hawaii), Brause v Bureau of Vital Statistics 1998 WL 88743 (Alaska); and
Baker v State 744 A2d 864 (1999, Vermont). The decisions in Hawaii and
Alaska have subsequently been nullified by State legislation but in
Vermont, legislation has now extended to same-sex couples virtually all of

17 Bellinger at 147b-d, para [78].

the rights and responsibilities which opposite-sex couples are granted
through marriage.18 More limited domestic partnership registries are also
available in a few states and several municipalities.19 The US Supreme
Court, by a majority, only two months ago in Lawrence et al v Texas20
struck down State legislation criminalizing sodomy between two adults
who, with full and mutual consent, engaged in sexual practices common to
a homosexual lifestyle.

[31] In New Zealand the Court of Appeal (Wellington) in Quilter v
Attorney-General [1998] 1 NZLR 523 held that the wording and scheme of
the Marriage Act 1955 could not accommodate marriages between
persons of the same sex and that the  subsequent enactment of the New
Zealand Bill of Rights Act 1990 could not alter the position as Parliament
was entitled to discriminate, if it so wished. By way of contrast, in Canada
the Ontario Court of Appeal held in June this year in Halpern v Canada
(Attorney-General)21 that the common law definition of marriage as ‘the
voluntary union for life of one man and one woman to the exclusion of all
others’ violated the couple’s equality rights on the basis of sexual

18 These decisions and the subsequent legislative history are discussed in the volume of the Harvard
Law Review referred to in para [28] above at p2005 and pp2015-2020.
19 A list appears in Lambda Legal Defense and Education Fund, Partial Summary of Domestic Partner
Registry Listings at http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=403.
20 Not yet reported. The decision may be found at
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=02-102.
21 Above footnote 3.

orientation under s 15(1) of the Canadian Charter of Rights and Freedoms
and that the violation could not be justified in a free and democratic society
under s 1 of the Charter.22 Quebec appears to be going the same way as
Ontario : Hendricks v Quebec (Procureur général).23

[32] It is no exaggeration to say that whilst there is (not surprisingly) no
uniform trend and whilst different attitudes prevail in different countries
(and even in the same country), there have been  increasing moves by
legislatures and by courts internationally to confer greater rights on, and to
recognise greater rights in favour of, parties to same-sex partnerships.

[33] In the light of the aforegoing the legal duty owed by the deceased to
the plaintiff is in my view clearly worthy of protection as is required in terms
of Henery24 and Amod.25

DEVELOPMENT OF THE COMMON LAW
[34] The learned judge a quo nevertheless held, and counsel for the
defendant submitted, that it was for the legislature and not the courts to

22 The Canadian government has apparently decided not to appeal: see the dissenting judgment of
Scalia J in Lawrence et al v Texas, above para [30].
23 A decision of the Superior Court of Montreal given on 6 September 2002 but not yet reported. The
judgment may be found at http://www.canlii.org/qc/jug/qccs/2002/2002qccs14544.html.
24 Para [9] above.
25 Para [9] above.

decide whether and how the common law should be extended. In my view
the learned judge a quo erred in this regard for the following reasons: First,
the extension is in line with the common law principles formulated in
Henery and Amod. Second, the extension is in accordance with the
behests of the Constitution.

[35] Section 173 of the Constitution provides that the Constitutional Court,
this court and the High Courts have the inherent power to develop the
common law, taking into account the interests of justice. In terms of s 8 of
the Constitution a court, in order to give effect to a right in the Bill of Rights,
must develop the common law to the extent that legislation does not give
effect to that right. A court should in terms of s 39(2), when developing the
common law, promote the spirit, purport, and objects of the Bill of Rights.

[36] In Carmichele26 the Constitutional Court stated that it is implicit in s
39(2) read with s 173 that where the common law as it stands is deficient
in promoting the s 39(2) objectives, the courts are under a general
obligation to develop it appropriately and should not hesitate to ensure that
it is developed to reflect the spirit, purport and objects of the Bill of Rights.
That court nevertheless warned that judges should be mindful of the fact

26 Para [19] above at paras [33], [34] and [39].

that the major engine for law reform should be the legislature and not the
judiciary. In this regard it quoted with approval a passage to the effect that
the judiciary should confine itself to those incremental changes which are
necessary to keep the common law in step with the dynamic and evolving
fabric of our society.

[37] To extend the action for loss of support to partners in a same-sex
permanent life relationship similar in other respects to marriage, who had
a contractual duty to support one another, 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. In this regard I have already referred to Satchwell. In
addition I refer to the following.

[38] In National Coalition for Gay and Lesbian Rights v Minister of Home
Affairs and Others27 Ackermann J (para [37]) pointed out that:
‘A notable and significant development in our statute law in recent years has been the
extent of express and implied recognition the Legislature has accorded same-sex
partnerships’
and detailed in footnote 41 a number of statutory provisions which have

27 Para [22] above.

included such unions. More examples were given in Du Toit and Another
v Minister of Welfare and Population Development and Others (Lesbian
and Gay Equality Projects as amicus curiae) 2003 (2) SA 198 (CC)
footnote 33. The examples range through statutes dealing with
employment, the media, lotteries, pensions, medical schemes, housing,
civil aviation, road traffic, domestic violence and estate duty.

[39] In National Coalition for Gay and Lesbian Equality v Minister of Home
Affairs 28 the Constitutional Court held that s 25(5) of the Aliens Control
Act 96 of 1991, by omitting to confer on persons who are partners in
permanent same sex life partnerships the benefits it extends to spouses,
unfairly discriminates, on the grounds of their sexual orientation and
marital status, against partners in such same sex partnerships who are
permanently and lawfully resident in the Republic; that such unfair
discrimination limits the equality rights of such partners guaranteed to
them by s 9 of the Constitution and their right to dignity under s 10; and
that the limitation is not reasonable or justifiable in an open and
democratic society based on human dignity, equality and freedom and
accordingly did not satisfy the requirements of s 36(1) of the Constitution.

28 Para [22] above.

[40] In Du Toit v Minister of Welfare and Population Development and
Others (Lesbian and Gay Equality Project as amicus curiae) 2003 (2) SA
198 (CC) the Constitutional Court held that sections of the Child Care Act
74 of 1983 and the Guardianship Act 192 of 1993 did not provide for
partners in same-sex life partnerships adopting and being joint guardians
of minor children, and unjustifiably infringed the rights to equality and
human dignity.

[41] In J and Another v Director General, Department of Home Affairs and
Others 2003 (5) BCLR 463 (CC) the Constitutional Court confirmed  that s
5 of the Children’s Status Act 82 of 1987 was unconstitutional in that it
unfairly discriminated on the basis of sexual orientation in violation of the
equality provisions in the Constitution; and made an order having the
effect that the section was to be read so as to provide the same status to
children born from artificial insemination to same-sex permanent life
partners, as it provided to children born to heterosexual married couples.

CONCLUSION : DEPENDANT’S ACTION
[42] I conclude that the plaintiff, as a same-sex partner of the deceased in
a permanent life relationship similar in other respects to marriage, in which
the deceased had undertaken a contractual duty of support to him, is

entitled to claim damages from the defendant for loss of that support.

[43] It is not necessary for purposes of this judgment to consider whether
the dependant’s action should be extended to unmarried persons in a
heterosexual relationship or to any other relationship; and I expressly
leave those questions open.

FUNERAL EXPENSES
[44] The evidence establishes that the plaintiff was the deceased’s sole
heir. It was held in Young v Hutton 1918 WLD 90 at 91, on the strength of
Grotius’ Introduction,29 that a person improperly causing the death of
another is liable to the heir of the latter for funeral expenses. In Rondalia
Assurance Corporation of SA Ltd v Britz 1976 (3) SA 243 (T) at
245H-246E Margo J, after surveying the authorities, came to the
conclusion that where the heirs have laid out funeral expenses on their
own account, an action to recover such expenses lies at their suit. The
correctness of this conclusion was not attacked on appeal and I see no

29 The reference was to 3.32.2 and should have been to 3.33.2, which reads to the extent relevant
(Maasdorp’s translation 318): ‘Commencing then with crimes against life, which are called homicide,
which include everything whereby one person improperly causes the death of another, and for which, for
reasons stated above, the person causing the death is not liable to the heirs, except for funeral
expenses and any other expenses which may have been caused by the crime.’

reason to differ from it.

[45] The submission made on behalf of the defendant was that the plaintiff
had not shown that he had incurred any funeral expenses himself and that
the court below was accordingly correct in dismissing his claim under this
head. In my view a declaratory order in appropriate terms would address
the problem. The terms of the order will also be dictated by the provisions
of s 18(4) of the Act which limit the liability of the defendant in respect of
funeral expenses to ‘the necessary actual costs to cremate the deceased
or to inter him or her in a grave.’30

COSTS
[46] The plaintiff asked for the costs of two counsel. This was opposed by
the defendant. In my view it was a wise and reasonable precaution for the
plaintiff to retain two counsel albeit that this was done at a late stage.

0RDER
(1)  The appeal is upheld, with costs, which shall include the costs of two

30 The legislative history of claims for funeral expenses in third party matters is set out in Klopper, Law of
Third Party Compensation 68.

counsel.

(2)   The order of the court below is set aside and the following order
substituted:

‘(a)
It is declared that the defendant is liable to compensate the

plaintiff for 75 per cent:

(i)
of such damages for loss of support as the plaintiff

proves he has suffered in consequence of the death of

Albert Ernest Clack (‘the deceased’) in the motor

vehicle collision which took place on 1 September

1999; and

(ii)
of such necessary actual costs to cremate the

deceased or to inter him in a grave as were incurred by

the plaintiff.

(b)
The defendant is ordered to pay the costs of the hearing

before this court.

(c)
The further costs of the action are reserved.’

________________

T D CLOETE

JUDGE OF APPEAL
Concur:  Streicher JA

Farlam JA

Lewis JA

Southwood AJA