Paixão v Road Accident Fund

The appellants, Maria Angelina Paixão and her daughter Michelle, sued the Road Accident Fund under section 17(1) of the Road Accident Fund Act 56 of 1996 for loss of maintenance and support arising from the death of José Adelino Do Olival Gomes in a motor vehicle collision on 2 January 2008. The deceased had been living with Mrs Paixão and her children and supporting them financially. He had planned to marry her but had not yet done so. Mrs Paixão was born in Madeira, Portugal, and married Manuel Paixão in 1980. Three daughters were born of this union: Fatima, Marlize and Michelle. Manuel Paixão died in June 2000. In 2002, Mrs Paixão met the deceased who she had engaged to do maintenance work on her house. At the time he was married but unhappy and living apart from his wife. In May 2003, the deceased paid for Fatima's wedding. In October 2003, the deceased fell ill and was hospitalized. Upon discharge, Mrs Paixão offered to nurse and support him at her home. He accepted and began living with her in a permanent life partnership. During their cohabitation, the deceased paid for everything. In June 2005, the deceased divorced his wife according to South African law. He and Mrs Paixão executed a Joint Will in which they nominated each other as sole and universal heirs. In June 2007, the deceased's divorce was concluded in Portugal. They planned to marry in Portugal on 12 April 2008. Sadly, the deceased died two months later before they could marry. The South Gauteng High Court found that the deceased had supported the appellants out of gratitude, sympathy and kindness rather than any legal duty, and dismissed their claims.

• Whether the common law should be developed to extend the dependants' action to permanent heterosexual life partnerships
• Whether a legally enforceable duty of support existed between the deceased and the appellants by way of an express or tacit agreement
• Whether the nature of the relationship between the deceased and the appellants was such that it was deserving of the law's protection
• Whether the second appellant (the daughter) had a claim independent of her mother's claim

The appeal succeeded with costs. The decision of the high court was set aside and replaced with an order that: (a) The respondent pay the first appellant R1,707,612; (b) The respondent pay the second appellant R451,626; (c) The respondent pay the appellants' taxed or agreed costs of the action including the costs of the actuaries.

The binding legal principle is that the common law dependants' action extends to unmarried persons in permanent heterosexual life partnerships who have established, by express or tacit agreement, a contractual reciprocal duty of support. Where such a duty of support has been established and is akin to a family relationship arising from a legally recognized marriage, it is worthy of the law's protection applying the boni mores criterion. The existence of a reciprocal duty of support in a life partnership must be proved by credible evidence of a conjugal relationship in which the parties supported and maintained each other. The mere fact of cohabitation is not sufficient; there must be evidence that the partnership had characteristics similar to marriage, particularly reciprocal commitments to support. A pactum de contrahendo (agreement to contract in the future) may create enforceable obligations to support before the formal marriage takes place. Once a dependant establishes a legally enforceable duty of support arising from a relationship akin to marriage, the law ought to protect it through the dependants' action, regardless of whether the relationship was formalized through legal marriage.

The court made several non-binding observations: (1) It noted that evidence of an intention to marry may be relevant to determining whether a duty of support exists, but it does not mean there must be an agreement to marry before the duty is established. (2) The court observed that extending the dependants' action to permanent heterosexual life partnerships does not demean the value or importance of marriage as an institution; rather, it extends protection precisely because the nature of such relationships is similar to family relationships arising from legally recognized marriages. (3) The court noted that South Africans have lower rates of marriage and higher rates of extra-marital child-bearing than most countries, and that the nuclear family has not been the norm in South Africa for a long time. (4) It observed that the circumstances of people cohabiting differ significantly - some with no intention of permanence, others due to legal or religious bars to marriage, others with a shared intention not to attract legal consequences, and still others with a firm shared intention of being permanent life partners. (5) The court stated it need not consider the constitutional question of whether it would amount to unfair discrimination to protect marital relationships but not heterosexual permanent life partnerships, having resolved the matter on common law grounds. (6) It cautioned that courts should confine themselves to the particular legal problem under consideration rather than expound the law generally on the topic when developing the common law.

This case is a landmark judgment in South African law as it developed the common law to extend the dependants' action to permanent heterosexual life partnerships where a reciprocal duty of support has been established by agreement (express or tacit). It represents an incremental extension of the dependants' action in line with the evolving social fabric of South African society and constitutional values. The judgment recognizes the social reality that millions of South Africans live in permanent relationships outside formal marriage for various reasons including the legacy of apartheid's migrant labour system. It affirms that the common law must keep pace with social changes and that relationships akin to marriage deserve legal protection regardless of formal marital status. The judgment clarifies the distinction between Volks NO v Robinson (which dealt with statutory spousal benefits) and the sui generis common law dependants' action. It confirms that proving a life partnership requires demonstrating characteristics similar to marriage, particularly reciprocal duties of support. The case extends protection to vulnerable dependants who would otherwise be left without remedy despite being maintained and supported by a deceased breadwinner.