Van der Merwe v Road Accident Fund and Another

The applicant, Mrs Vanessa van der Merwe, was intentionally run over and seriously injured by her husband while they were married in community of property. She instituted a claim against the Road Accident Fund (RAF) for both patrimonial and non‑patrimonial damages arising from her bodily injuries. The RAF raised a special plea relying on section 18(b) of the Matrimonial Property Act 88 of 1984, which permits spouses married in community of property to claim only non‑patrimonial damages from each other for bodily injury, thereby excluding claims for patrimonial loss. The applicant challenged the constitutionality of this exclusion, arguing that it unfairly discriminated on the ground of marital status and impaired dignity. The High Court declared section 18(b) unconstitutional to the extent that it excluded patrimonial damages and referred the matter to the Constitutional Court for confirmation.

The Constitutional Court confirmed the order declaring section 18(b) of the Matrimonial Property Act 88 of 1984 unconstitutional to the extent that it excluded damages for patrimonial loss, with the offending words replaced by the phrase “including damages for patrimonial loss,” operating prospectively and without affecting finalised judgments.

This case is significant for affirming that matrimonial property regimes cannot be used to deny spouses substantive equality and dignity, particularly in delictual claims arising from bodily injury. It advanced constitutional equality jurisprudence by recognising the gendered impact of seemingly neutral family‑law rules and ensured that spouses married in community of property have full delictual remedies against each other.