Antonie Michael Du Plessis v Road Accident Fund

The plaintiff and the deceased, Albert Ernest Clack, were partners in a same-sex relationship from March 1988 until the deceased's death in a motor vehicle accident on 1 September 1999. In August 1988, they held a ceremony resembling a marriage before numerous witnesses, conducted by a marriage officer (though not in official capacity). They would have legally married if permitted by law. The plaintiff was medically boarded on 1 September 1994, after which his income was substantially reduced to a disability pension. The deceased continued to earn a significantly higher salary and promised to support the plaintiff financially, which he did for five years until his death. They pooled their income, were acknowledged as a couple by family and friends, and each made wills appointing the other as sole heir (plaintiff on 28 July 1988, deceased on 31 July 1989). The parties agreed the defendant Road Accident Fund was liable for 75% of legally recoverable damages. The trial was limited to two issues: (1) whether the plaintiff's claim for loss of support was legally recognized, and (2) whether the plaintiff had a right to claim burial expenses.

• Whether a partner in a same-sex permanent life relationship similar to marriage can claim damages for loss of support from the Road Accident Fund where the deceased owed a contractual duty of support
• Whether the common law dependant's action should be developed to include same-sex partners in permanent life relationships
• Whether the deceased owed the plaintiff a legally enforceable duty of support
• Whether such a duty of support is worthy of legal protection against a wrongdoer who unlawfully killed the supporter
• Whether the heir of a deceased person can recover funeral expenses incurred by him
• Whether the court or legislature should develop the common law to extend the dependant's action

The appeal was upheld with costs, including costs of two counsel. The court a quo's order was set aside and substituted with a declaratory order that: (a) the defendant is liable to compensate the plaintiff for 75%: (i) of damages for loss of support proved by the plaintiff arising from the deceased's death; and (ii) of necessary actual costs to cremate or inter the deceased incurred by the plaintiff; (b) the defendant must pay costs of the hearing; (c) further costs of the action were reserved.

A partner in a same-sex permanent life relationship similar in other respects to marriage, where the deceased partner owed a contractual duty of support to the surviving partner, is entitled to claim damages for loss of support from a wrongdoer who unlawfully killed the deceased. The common law dependant's action extends to such relationships because: (1) the contractual duty of support is legally enforceable; (2) such duty is worthy of protection in light of constitutional values of equality (s 9) and dignity (s 10); (3) denying the action to same-sex partners in such relationships while granting it to married spouses constitutes unfair discrimination on grounds of sexual orientation; and (4) courts have a constitutional obligation under ss 8, 39(2), and 173 to develop the common law incrementally to promote the spirit, purport and objects of the Bill of Rights and to reflect the dynamic and evolving fabric of society. The heir of a deceased person who incurs funeral expenses is entitled to recover such expenses (limited to necessary actual costs of cremation or burial) from the wrongdoer who unlawfully caused the death.

The court expressly stated (para [43]) that it was not necessary to consider whether the dependant's action should be extended to unmarried persons in heterosexual relationships or any other relationships, and it left those questions open. The court emphasized that its submissions fell short of extending the common law definition of marriage itself to include same-sex couples; rather, it extended only the dependant's action for loss of support. The court discussed extensively (paras [28]-[32]) international legislative and judicial developments regarding same-sex relationships in Europe, the United States, New Zealand, and Canada, noting increasing moves to confer greater rights on same-sex partners, though with no uniform trend. The court warned (para [36], citing Carmichele) that while courts have a duty to develop the common law in accordance with the Constitution, judges should be mindful that the major engine for law reform should be the legislature, and the judiciary should confine itself to incremental changes necessary to keep the common law in step with society.

This is a landmark case in South African law as it represents the first judicial extension of the common law dependant's action to same-sex partners in permanent life partnerships. The judgment demonstrates the constitutional obligation of courts to develop the common law in accordance with ss 8, 39(2), and 173 of the Constitution to promote equality and dignity. It established that courts, not only the legislature, have a role in incrementally developing the common law to reflect constitutional values and the evolving fabric of society. The case followed and applied the principles in Satchwell and the National Coalition cases regarding unfair discrimination on grounds of sexual orientation. It reflects international trends toward recognizing same-sex partnerships and is consistent with subsequent Constitutional Court jurisprudence in Du Toit and J v Director General, Department of Home Affairs. The judgment is carefully limited to same-sex partners with a contractual duty of support in relationships similar to marriage, expressly leaving open the question of unmarried heterosexual couples and other relationships.