Santam Beperk v Henery

The respondent, Margarita Anne Henery, married her husband on 22 January 1983 in community of property. Two children were born from the marriage. On 20 September 1991, they were divorced. In terms of section 7(2) of the Divorce Act 70 of 1979, a court order granted her maintenance of R1000 per month for herself (and R800 per month per child). On 2 October 1991, twelve days after the divorce, the parties entered into a written agreement providing for division of their joint estate and suspending the maintenance order for as long as the respondent and children continued to live in the common residence at 24 Flamboyant Street, Witkoppe, Klerksdorp. For purposes of the stated case, it was accepted that after divorce the parties continued to live together as husband and wife in a customary union, maintaining their marital relationship and household without interruption, and that the deceased continued to maintain the respondent and children according to the same standard of living as before divorce, exceeding his obligations under the divorce order. On 6 October 1992, almost a year later, the deceased husband was killed in a motor vehicle collision caused by the negligent driving of the insured vehicle's driver. The appellant was the third-party insurer (a "nominated agent" under the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989). The children's claim was settled; the respondent's claim was not.

• Whether a divorced wife with a court order for maintenance in her favour has a claim for damages against the wrongdoer (or third-party insurer) responsible for the death of her former husband who was obligated to maintain her
• Whether such a divorced wife who continued to cohabit with the deceased in a customary union and was fully maintained by him at the time of his death is entitled to damages as a party to such union, even exceeding the maintenance order amount
• Whether, based on a formal settlement agreement in which the deceased undertook to fully maintain her and she agreed not to enforce the court order while cohabiting, she has a claim based solely on interference with her contractual right to maintenance

The appeal was dismissed with costs, including costs of two counsel. The cross-appeal failed with costs.

A divorced wife who holds a court order for maintenance against her former husband in terms of section 7(2) of the Divorce Act 70 of 1979 is entitled, in principle, to bring an action for damages against a wrongdoer (or third-party insurer) who negligently causes the death of her former husband, thereby depriving her of the maintenance to which she was legally entitled. The statutory source of the maintenance obligation does not preclude recognition of such a claim - the maintenance right is legally protectable applying the boni mores/reasonableness test of wrongfulness. There is no logical, policy-based, or equitable reason to distinguish her position from that of other recognized dependants. The fact that the claim is for pure economic loss does not preclude it where, as here, there is a legally enforceable maintenance obligation and the traditional concerns about indeterminate liability do not arise. The quantification of damages in such cases involves consideration of the maintenance order amount as a primary but not sole or decisive factor, along with the range of considerations applicable to all dependants' claims.

The court noted, without deciding, questions about whether anomalies inherent in the dependant's action as such should be eliminated from South African law for the sake of legal elegance and future legal development, stating these were not properly argued and would be addressed when determinative of a case outcome. The court observed that the obiter dictum in Fondo 1960 (2) SA 467 (A) at 472H-473A, suggesting a divorced wife with a maintenance order would have no claim, was clearly obiter and not essential to that decision. The court noted extensive academic criticism of the Fondo decision generally (by Boberg, Van der Merwe and Olivier, Neethling, Potgieter and Visser, and Davel) and that it was not followed in Zimbabwe (Chawanda cases). Regarding the two alternative claims raised by cross-appeal (based on customary union cohabitation and contractual agreement), the court noted that on the agreed facts there appeared to be conclusive answers against these claims, but did not elaborate given counsel's abandonment of these issues during argument.

This landmark judgment extended the common law dependant's action to include divorced spouses who hold court orders for maintenance under section 7(2) of the Divorce Act 70 of 1979. It represents a significant development in South African delict law concerning pure economic loss and the protection of maintenance rights. The judgment effectively overruled the obiter dicta in Fondo that would have excluded such claims. It illustrates the proper application of the boni mores test of wrongfulness in cases of pure economic loss, demonstrating judicial willingness to adapt common law principles to contemporary social conditions and statutory developments. The case affirms that the source of a legal duty (whether common law or statute) is irrelevant to whether an interest is legally protectable - what matters is the community's sense of justice and reasonableness. It contributes to the ongoing development of the anomalous but effective sui generis action available to dependants following wrongful death of a breadwinner. The judgment is important for family law, delict, and insurance law practitioners.