Van der Merwe v Road Accident Fund

On 24 October 1999, Mrs Vanessa van der Merwe was intentionally run over by her husband, Mr David van der Merwe, with his motor vehicle at Pick 'n Pay in Goodwood. At the time, they were married in community of property. He reversed over her while she lay on the ground. She sustained serious bodily injuries including a ruptured bladder, fractured pelvis, skeletal fractures, severe contusions, soft tissue injuries, lacerations and permanent disfigurement. They subsequently divorced. Mrs Van der Merwe sued the Road Accident Fund (RAF) for special and general damages. The RAF pleaded that while she could claim non-patrimonial damages (general damages), she could not claim patrimonial damages (special damages) by reason of section 18(a) and (b) of the Matrimonial Property Act 88 of 1984, which prevented spouses married in community of property from claiming patrimonial loss from each other arising from delict. Mrs Van der Merwe challenged the constitutional validity of section 18(b), arguing it unfairly discriminated on the grounds of marital status, violated her dignity, and constituted arbitrary deprivation of property.

• Whether section 18(b) of the Matrimonial Property Act 88 of 1984 prevents claims for patrimonial damages arising from bodily injury between spouses married in community of property
• Whether the differentiation created by section 18(b) between spouses married in community of property and those married out of community of property violates the equality guarantee in section 9(1) of the Constitution
• Whether the differentiation bears a rational connection to a legitimate government purpose
• Whether section 18(b) constitutes unfair discrimination on the ground of marital status under section 9(3) of the Constitution
• Whether the limitation of equality rights is justifiable under section 36 of the Constitution
• Whether section 18(b) violates the right to dignity under section 10 of the Constitution
• Whether section 18(b) constitutes indirect discrimination against women
• What is the appropriate remedy, including whether severance and reading-in should be ordered

1. The Minister of Justice and Constitutional Development was joined as second respondent. 2. The High Court's order of constitutional invalidity of section 18(b) was confirmed with variations. 3. It was declared that the inclusion of the words "other than damages for patrimonial loss" in section 18(b) of the Matrimonial Property Act 88 of 1984 is inconsistent with the Constitution and invalid, and those words were severed. 4. It was declared that the omission from section 18(b) of the words "[s]uch damages do not fall into the joint estate but become the separate property of the injured spouse" after "either wholly or in part to the fault of that spouse" is inconsistent with the Constitution and invalid, and those words were read in. 5. The order operates retrospectively except for claims in which final judgments had been handed down. 6. The Road Accident Fund was ordered to pay the applicant's costs in the High Court and Constitutional Court. 7. The RAF's appeal was dismissed with costs.

Section 18(b) of the Matrimonial Property Act 88 of 1984, insofar as it includes the words "other than damages for patrimonial loss," violates the right to equal protection and benefit of the law under section 9(1) of the Constitution because the differentiation it creates between spouses married in and out of community of property does not bear a rational connection to a legitimate government purpose. The purported purpose of preserving the unity of the joint estate and avoiding futility has fallen away due to the Act's own provisions creating separate property and allowing recovery of non-patrimonial damages. There is no rational distinction between patrimonial and non-patrimonial damages in bodily injury claims, as both serve to provide full compensation for loss. The limitation cannot be justified under section 36 of the Constitution because there is no legitimate purpose to validate the law. The appropriate remedy is severance of the offending words and reading-in language to ensure patrimonial damages recovered become the separate property of the injured spouse. Declarations of constitutional invalidity ordinarily operate retrospectively except where the court orders otherwise; here, the order applies retrospectively except to claims where final judgments had already been handed down.

The Court noted, without finally deciding, that there are compelling arguments that section 18(b) may also constitute indirect discrimination against women, given the gendered nature of domestic violence and economic vulnerability within marriage, which means women are more likely to be victims of spousal violence and thus more adversely affected by the prohibition on claiming patrimonial damages. The Court also observed that the prohibition may be inconsistent with the right to freedom from violence under section 12(1)(c) of the Constitution, as it effectively immunizes spouse batterers from making good patrimonial damages. However, these issues were not finally determined because the Court's finding on section 9(1) equality was sufficient to dispose of the matter. The Court noted that the specified ground of "marital status" in section 9(3) has, in previous jurisprudence, related to the distinction between married and unmarried persons, rather than distinctions between different property regimes within marriage. A generous interpretation of "marital status" to include all differences in proprietary consequences of marital regimes might be untenable, as it would render all such distinctions presumptively unfair discrimination. The Court expressed doubt about whether the choice to marry under a particular regime could amount to a waiver of constitutional rights (Moseneke DCJ at para 61; Yacoob J disagreed in a separate concurrence at paras 81-82, stating the choice argument might have been relevant to justification if there had been a legitimate governmental purpose).

This case is a landmark decision on equality in matrimonial property law. It confirms that legislative differentiation must have a legitimate purpose and bear a rational connection to that purpose to comply with section 9(1) of the Constitution. The judgment demonstrates that historical common law rationales (such as the unity and indivisibility of the joint estate in marriages in community of property) cannot justify continued discrimination once those rationales have been undermined by legislative reforms. The case illustrates the Court's remedial powers under section 172, particularly the use of severance and reading-in to cure constitutional defects while minimizing interference with legislative schemes. It also clarifies the law on retrospective operation of declarations of invalidity. The judgment has important implications for gender equality, noting that while section 18(b) was facially gender-neutral, its effect was likely to be more devastating on women due to their greater vulnerability to domestic violence and economic dependency within marriage. The case reaffirms that constitutional rights cannot be waived by personal choice (such as choice of marital regime), and that the objective constitutional validity of legislation does not depend on the conduct or preferences of affected persons. The decision ensures that victims of spousal violence or negligence married in community of property have full access to compensation, including patrimonial damages.