Van der Merwe v Road Accident Fund and Another (CCT48/05) [2006] ZACC 4; 2006 (4) SA 230 (CC); 2006 (6) BCLR 682 (CC) (30 March 2006)

Van der Merwe v Road Accident Fund and Another (CCT48/05) [2006] ZACC 4; 2006 (4) SA 230 (CC); 2006 (6) BCLR 682 (CC) (30 March 2006)

Section 18(b) of the Matrimonial Property Act 88 of 1984 is inconsistent with section 9(1) of the Constitution because it irrationally and arbitrarily prohibits spouses married in community of property from claiming patrimonial damages for bodily injury inflicted by the other spouse, while permitting such claims in other marital regimes. The distinction between patrimonial and non-patrimonial damages is not rationally related to any legitimate government purpose, as the proceeds of patrimonial damages can accrue to the separate estate of the injured spouse, avoiding the supposed futility of claims within a joint estate. The legislative scheme has evolved to allow for separate property and...

Citation
[2006] ZACC 4
Parties
Applicant: Vanessa Michelle Van der Merwe; Respondent: Road Accident Fund; Respondent: Minister of Justice and Constitutional Development; Amicus Curiae: Women's Legal Centre Trust
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
30 March 2006
Case Number
CCT48/05
Procedural Posture
Constitutional Confirmation / Confirmation of High Court Order of Constitutional Invalidity; Direct Appeal by Road Accident Fund; Joinder Application for Minister
Outcome
The Constitutional Court confirms the order of constitutional invalidity of section 18(b) of the Matrimonial Property Act 88 of 1984, subject to variations. The offending words are severed, and language is read in to ensure patrimonial damages become the separate property of the injured spouse. The order operates...
Judges
Moseneke DCJ, Langa CJ, Mokgoro J, Ngcobo J, Sachs J, Skweyiya J, Van der Westhuizen J, Yacoob J
Legal Topics
Equality Clause, Matrimonial Property Act, Unfair Discrimination, Domestic Violence, Arbitrary Deprivation of Property, Remedial Orders
Constitutional Law Family and Children Delict Equality Clause Matrimonial Property Act Unfair Discrimination Domestic Violence Arbitrary Deprivation of Property +1 more

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Parties

Vanessa Michelle Van der Merwe

Applicant

Road Accident Fund

Respondent

Minister of Justice and Constitutional Development

Respondent

Women's Legal Centre Trust

Amicus Curiae

Procedural Posture

Constitutional Confirmation / Confirmation of High Court Order of Constitutional Invalidity; Direct Appeal by Road Accident Fund; Joinder Application for Minister

Legal Issues

  1. 1 Does section 18(b) of the Matrimonial Property Act 88 of 1984 unconstitutionally bar spouses married in community of property from claiming patrimonial damages for bodily injury inflicted by the other spouse?
  2. 2 Does the provision amount to unfair discrimination or arbitrary deprivation of property under the Constitution?
  3. 3 Is the differentiation between patrimonial and non-patrimonial damages rational and constitutionally justifiable?

Ratio Decidendi

Section 18(b) of the Matrimonial Property Act 88 of 1984 is inconsistent with section 9(1) of the Constitution because it irrationally and arbitrarily prohibits spouses married in community of property from claiming patrimonial damages for bodily injury inflicted by the other spouse, while permitting such claims in other marital regimes. The distinction between patrimonial and non-patrimonial damages is not rationally related to any legitimate government purpose, as the proceeds of patrimonial damages can accrue to the separate estate of the injured spouse, avoiding the supposed futility of claims within a joint estate. The legislative scheme has evolved to allow for separate property and...

Court Disposition

The Constitutional Court confirms the order of constitutional invalidity of section 18(b) of the Matrimonial Property Act 88 of 1984, subject to variations. The offending words are severed, and language is read in to ensure patrimonial damages become the separate property of the injured spouse. The order operates...

Orders

  • The Minister of Justice and Constitutional Development is joined as second respondent.
  • The order of constitutional invalidity made by the Cape High Court in respect of section 18(b) of the Matrimonial Property Act 88 of 1984 is confirmed, subject to variations.