Paixão v Road Accident Fund (640/2011)  ZASCA 130
The main issue in this appeal was whether or not the common law should be developed to extend the dependents’ action to permanent heterosexual relationships.
The appellants sued the Road Accident Fund 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 the first appellant (Mrs Paixão) and her children at the time and supported them financially. He had planned to marry her, but had not yet done so.
The South Gauteng High Court found that the deceased had supported the appellants out of ‘gratitude’ in return for their assistance during his illness rather than from any legal duty, and also that it ‘would be an affront to the fabric of our society . . and seriously erode the institution of marriage’ if the dependents’ action were to be extended to the appellants. It therefore dismissed their claims but granted them leave to appeal to the SCA.
In its judgement the SCA stated that a plaintiff’s assertion that he or she was in life partnership, cannot be taken as sufficient proof of the fact. Proving the existence of a life partnership entails more than showing that the parties cohabited and jointly contributed to the upkeep of the common home. It entails demonstrating that the partnership had similar characteristics to a marriage.
The implied inference to be drawn from the proven facts must be that the parties, in the absence of an express agreement, agreed tacitly that their cohabitation included assuming reciprocal commitments – ie a duty to support – to each other.
The facts showed that the community accepted the deceased, Mrs Paixão and her children as a family and did not regard their cohabitation as opprobrious. Cohabitation outside of a formal marriage is now widely practiced and accepted by many communities universally and therefore not against the boni mores.
Evidence that the parties intended to marry may be relevant to determining whether a duty of support exists, as in this case. But it does not mean that there must be an agreement to marry before the duty is established.
The court held that the dependents’ action is to be extended to unmarried persons in heterosexual relationships who have established a contractual reciprocal duty of support.
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