Du Plessis v Road Accident Fund

The plaintiff (appellant) and Albert Ernest Clack (the deceased) were partners in a same-sex union from March 1988 until the deceased was killed in a motor vehicle accident on 1 September 1999. In August 1988 they underwent a ceremony as close as possible to a marriage ceremony. Their relationship was stable and permanent, and they were acknowledged by family and friends as a couple. They pooled their income, made mutual wills appointing each other as sole heir, and shared family responsibilities. The plaintiff was medically boarded in September 1994 and thereafter earned less than the deceased; the deceased expressly undertook to support the plaintiff financially and in fact did so until his death. The plaintiff claimed damages from the Road Accident Fund (RAF) for loss of support and funeral expenses. The parties agreed that the RAF was liable for 75% of any legally recoverable damages proved. The High Court dismissed both claims and refused leave to appeal. The plaintiff appealed with the leave of the Supreme Court of Appeal.

• Whether the common law dependant's action for damages for loss of support should be developed to include a same-sex partner in a permanent life relationship similar to marriage where the deceased owed a contractual duty of support.
• Whether the plaintiff established that the deceased owed him a legally enforceable contractual duty of support.
• Whether such a duty of support is 'worthy of protection' by an action against the wrongdoer (wrongfulness).
• Whether the extension of the common law should be effected by the courts under the Constitution or left to the legislature.
• Whether the plaintiff, as sole heir, had a right to claim funeral expenses from the wrongdoer and whether he had established that he incurred such expenses.

The appeal was upheld with costs, including the costs of two counsel. The order of the High Court was set aside and substituted with an order declaring that the Road Accident Fund is liable to compensate the plaintiff for 75% of such damages for loss of support as the plaintiff proves he suffered, and for 75% of such necessary actual costs to cremate the deceased or inter him in a grave as were incurred by the plaintiff. The RAF was ordered to pay the costs of the hearing before the SCA; further costs were reserved.

1. The common law dependant's action for damages for loss of support must be developed to include a same-sex partner in a permanent life relationship similar in other respects to marriage, where the deceased owed that partner a contractual duty of support. 2. A contractual duty of support between same-sex life partners may be inferred as a matter of fact from circumstances including a commitment ceremony, cohabitation, pooling of resources, mutual wills, and express undertakings of support. 3. The exclusion of same-sex partners from the dependant's action constitutes unfair discrimination on the ground of sexual orientation in terms of s 9 of the Constitution and unjustifiably limits the right to dignity under s 10; it is not a reasonable and justifiable limitation under s 36. 4. Courts have the inherent power under s 173 and the obligation under s 39(2) of the Constitution to develop the common law incrementally to promote the spirit, purport and objects of the Bill of Rights. 5. An heir has a right to recover from the wrongdoer who caused the death the necessary actual funeral expenses incurred.

The court expressly left open whether the dependant's action should be extended to unmarried partners in heterosexual relationships or to any other relationships (para [43]). The court noted that the plaintiff's case did not require it to extend the common law definition of marriage itself to same-sex unions, but concerned only the narrower question of the dependant's action (para [7]). The extensive survey of international legislative and judicial developments in foreign jurisdictions regarding same-sex partnerships (paras [28]–[32]) was provided as comparative context and was not strictly necessary for the decision. The court's broader observations that the judiciary should confine itself to incremental changes while the legislature remains the major engine for law reform were general remarks not essential to the final order.

This is a landmark decision in which the Supreme Court of Appeal extended the common law dependant's action for loss of support to same-sex partners in permanent life relationships similar to marriage, provided there is a contractual duty of support. It affirmed the judiciary's constitutional mandate under ss 8, 39(2) and 173 to develop the common law incrementally to eradicate unfair discrimination based on sexual orientation and to uphold equality and human dignity, without waiting for legislative intervention. The judgment reinforced that the Constitution is a system of objective normative values that must inform the 'legal convictions of the community' in determining delictual liability. It also confirmed the heir's right to recover funeral expenses from the wrongdoer.