Kekana obo Motshwaede v Road Accident Fund (2019/26724) [2023] ZAGPJHC 495 (16 May 2023)

Loss of support: the application of an additional contingency for remarriage or re-partnering should not be applied in a discriminatory manner. Instead, a single general contingency for the vicissitudes of life should be applied to all dependants' claims, ensuring equality and fairness in line with constitutional values.

Author

Ross Shepstone
June 05, 2024

The matter of Kekana obo Motshwaede v Road Accident Fund involves a claim for loss of support arising from a motor vehicle collision that resulted in the death of the deceased, who was the unmarried cohabiting partner of the plaintiff and the biological father of their minor child. The plaintiff lodged a claim under the Road Accident Fund Act in her personal capacity as the deceased's partner and in her representative capacity as the mother of their minor child. The defendant, the Road Accident Fund, disputed both liability and the quantum of the claim.



The court was tasked with determining both liability and the quantum of the claim. To establish liability, the plaintiff needed to prove that she and the minor child had a legally enforceable right to claim financial support from the deceased. This duty of support was recognised based on the relationship between the deceased and the plaintiff and the minor child. The court considered the duty to support the minor child until the age of 18 or 21 years, as well as the duty to support the plaintiff, taking into account the possibility of remarriage or re-partnering.

"One of the hallmarks of our Constitution, is equality. The additional remarriage or re-partnering contingency deduction is in effect a mechanism for direct or indirect discrimination of dependant claims arising from marriage or relationships akin to marriage. I am not convinced that overcompensation is a reasonable and justifiable limitation in terms of section 36(1) of the Bill of Rights. Section 39(2) of the Constitution enjoins courts to develop the common law to align with the normative grid of the Constitution to suit the demands of our evolving society and give effect to the Bill of Rights. I highlight the application of the remarriage or re-partnering contingency to dependants’ claims arising from marriage or relationship 'akin to marriage' in the hope of bringing about its demise as offending the equality clause contained in section 9(3) of the Bill of Rights in our Constitution."

Mayet AJ

The court delved into the historical background of the Road Accident Fund Act, which is designed to assist dependants by placing them in a similar position to that which they would have been in had the deceased not died. The Act provides for compensation to dependants who have a legally enforceable right of support and who suffer harm due to

The ratio decidendi of the case, particularly with reference to remarriage contingencies, revolves around the application of contingency deductions for the possibility of remarriage or re-partnering in claims for loss of support. The core legal principles underlying the decision are as follows:

1. Legally Enforceable Duty of Support: The court affirmed that a legally enforceable duty of support exists when the relationship between the dependant and the deceased is recognized by law as giving rise to a right to be supported. This includes relationships akin to marriage, such as unmarried cohabiting partners.

2. Application of Contingencies: The court discussed three approaches to applying contingencies for remarriage or re-partnering:
**Attributes Approach**: This approach considers the specific attributes of the claimant, such as attractiveness and social skills, to determine the likelihood of remarriage or re-partnering.
**Actuarial Calculation Approach**: This approach relies on general statistical norms to determine the financial implications of potential remarriage or re-partnering.
**One General Contingency Approach**: This approach applies a single general contingency for the vicissitudes of life, including the possibility of remarriage or re-partnering, unless special circumstances warrant a higher contingency.

3. Equality and Non-Discrimination: The court highlighted that the application of an additional contingency for remarriage or re-partnering to dependants' claims arising from marriage or relationships akin to marriage, but not to other dependants with a legally enforceable right of support, constitutes unfair discrimination. The court emphasised that the potential danger of overcompensation applies equally to all dependant claims for loss of support.

4. Judicial Discretion and Constitutional Alignment: The court exercised judicial discretion to align the common law with the normative grid of the Constitution, emphasising equality and non-discrimination. The court concluded that only one general contingency for the vicissitudes of life should be applied to all dependants' claims arising from a legally enforceable right of support.

In summary, the core legal principle is that the application of an additional contingency for remarriage or re-partnering should not be applied in a discriminatory manner. Instead, a single general contingency for the vicissitudes of life should be applied to all dependants' claims, ensuring equality and fairness in line with constitutional values.

The court relied on several key cases in its reasoning process regarding remarriage contingencies. Here are the specific cases and their neutral citations:

1. Hulley v Cox 1923 AD 234
Reference: The court in Hulley v Cox held that allowance must be made for factors such as the possibility of remarriage when assessing compensation for loss of support.

2. Peri-Urban Areas Health Board v Munarin 1965 (3) SA 367 (A)
Reference: Holmes JA in this case agreed that marriage prospects are relevant because marriage would reinstate the right of support. The court emphasized that the possibility of remarriage should be considered in the assessment of damages.

3. Ongevallekommissaris v Santam Bpk 1999 (1) SA 251 (SCA)
Reference: The Supreme Court of Appeal held that the contingency of remarriage is usually taken into account in South Africa. The court noted that allowing for the contingency of remarriage is realistic and necessary to avoid overcompensation.

4. Members of the Executive Council Responsible for the Department of Road and Public Works, North West Province v Oosthuizen (A671/07) [2009] ZAGPPHC 16 (2 April 2009)
Reference: The full bench cited Ongevallekommissaris v Santam Bpk with approval and held that the possibility of remarriage must be taken into account as a simple actuarial contingency.

5. Esterhuizen and Others v Road Accident Fund (26180/2014) [2016] ZAGPPHC 1221; 2017 (4) SA 461 (GP) (6 December 2016)
Reference: Tolmay J approved reliance on actuarial calculations for the remarriage contingency and emphasised that no reliance should be placed on factors such as appearance.

6. LD v Road Accident Fund (14606/2016) [2018] ZAGPPHC 181 (5 February 2018)
Reference: The court held that the determination of a remarriage contingency is a discretionary matter for the trial court, and unless special circumstances warrant a higher than normal contingency, only one general contingency for the vicissitudes of life should be applied.

7. MV and Others v Road Accident Fund (1705/2017) [2019] ZAFSHC 131 (25 July 2019)
Reference: The court concluded that remarriage is part of the vicissitudes of life and should not be considered separately unless special circumstances are demonstrated.