Du Plessis v Road Accident Fund (443/2002) [2003] ZASCA 86; 2004 (1) SA 359 (SCA); 2003 (11) BCLR 1220 (SCA) (19 September 2003)

Du Plessis v Road Accident Fund (443/2002) [2003] ZASCA 86; 2004 (1) SA 359 (SCA); 2003 (11) BCLR 1220 (SCA) (19 September 2003)

The Supreme Court of Appeal held that the common law action 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 a contractual duty of support. The court found that the plaintiff and the deceased had a stable, permanent relationship, publicly acknowledged, and had undertaken reciprocal duties of support. Excluding same-sex partners from the dependant's action constituted unfair discrimination on the ground of sexual orientation, contrary to constitutional values of equality and dignity. The extension of the common law was incremental and consistent with both constitutional...

Citation
[2003] ZASCA 86
Parties
Appellant: Antonie Michael Du Plessis; Respondent: Road Accident Fund
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
19 September 2003
Case Number
443/2002
Procedural Posture
Civil Appeal / Appeal From High Court; Judgment Delivered
Outcome
Appeal upheld; order of court below set aside; substituted order granted.
Judges
Streicher, Farlam, Cloete, Lewis, Southwood
Legal Topics
Loss of Support, Same Sex Relationships, Constitutional Equality, Duty of Support, Funeral Expenses, Development of Common Law
Delict Civil Procedure Constitutional Law Loss of Support Same Sex Relationships Constitutional Equality Duty of Support Funeral Expenses +1 more

Case Brief

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Parties

Antonie Michael Du Plessis

Appellant

Road Accident Fund

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court; Judgment Delivered

Legal Issues

  1. 1 Whether a same-sex partner in a permanent life relationship similar to marriage, where the deceased owed a contractual duty of support, is entitled to claim damages for loss of support under the Road Accident Fund Act.
  2. 2 Whether the plaintiff, as sole heir, is entitled to recover funeral expenses incurred in burying the deceased.

Ratio Decidendi

The Supreme Court of Appeal held that the common law action 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 a contractual duty of support. The court found that the plaintiff and the deceased had a stable, permanent relationship, publicly acknowledged, and had undertaken reciprocal duties of support. Excluding same-sex partners from the dependant's action constituted unfair discrimination on the ground of sexual orientation, contrary to constitutional values of equality and dignity. The extension of the common law was incremental and consistent with both constitutional...

Court Disposition

Appeal upheld; order of court below set aside; substituted order granted.

Orders

  • It is declared that the defendant is liable to compensate the plaintiff for 75 per cent of such damages for loss of support as the plaintiff proves he has suffered in consequence of the death of Albert Ernest Clack in the motor vehicle collision on 1 September 1999.
  • It is declared that the defendant is liable to compensate the plaintiff for 75 per cent of such necessary actual costs to cremate the deceased or to inter him in a grave as were incurred by the plaintiff.