Van der Merwe v Road Accidents Fund (1803/02) [2005] ZAWCHC 66; 2007 (1) SA 176 (C) (13 September 2005)

Van der Merwe v Road Accidents Fund (1803/02) [2005] ZAWCHC 66; 2007 (1) SA 176 (C) (13 September 2005)

Section 18(b) of the Matrimonial Property Act No 88 of 1984, by excluding claims for patrimonial loss between spouses married in community of property, constitutes unfair discrimination on the ground of marital status, infringing the rights to equality and dignity protected by sections 9 and 10 of the Constitution. The limitation is not justifiable under section 36, as it does not serve a sufficiently important purpose to outweigh the constitutional rights at stake. The exclusion disproportionately affects women and is not rationally connected to preventing fraud, as similar risks exist for other marital regimes. The court held that the appropriate remedy is to declare the exclusionary...

Citation
[2005] ZAWCHC 66
Parties
Plaintiff: Vanessa van der Merwe; Defendant: Road Accident Fund
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
13 September 2005
Case Number
1803/02
Procedural Posture
Constitutional Challenge / Trial
Outcome
Section 18(b) of the Matrimonial Property Act is declared inconsistent with the Constitution to the extent that it prohibits spouses married in community of property from claiming damages for patrimonial loss in respect of bodily injuries. The exclusionary wording is to be substituted, and the order applies...
Judges
Ndita
Legal Topics
Matrimonial Property Act, Bill of Rights Limitation, Unfair Discrimination, Patrimonial Loss, Bodily Injury, Remedial Order
Constitutional Law Family and Children Delict Matrimonial Property Act Bill of Rights Limitation Unfair Discrimination Patrimonial Loss Bodily Injury +1 more

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Parties

Vanessa van der Merwe

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Constitutional Challenge / Trial

Legal Issues

  1. 1 Whether section 18(b) of the Matrimonial Property Act unfairly discriminates against spouses married in community of property by prohibiting claims for patrimonial loss.
  2. 2 Whether such discrimination infringes the rights to equality and dignity under sections 9 and 10 of the Constitution.
  3. 3 Whether the prohibition is justifiable under section 36 of the Constitution.

Ratio Decidendi

Section 18(b) of the Matrimonial Property Act No 88 of 1984, by excluding claims for patrimonial loss between spouses married in community of property, constitutes unfair discrimination on the ground of marital status, infringing the rights to equality and dignity protected by sections 9 and 10 of the Constitution. The limitation is not justifiable under section 36, as it does not serve a sufficiently important purpose to outweigh the constitutional rights at stake. The exclusion disproportionately affects women and is not rationally connected to preventing fraud, as similar risks exist for other marital regimes. The court held that the appropriate remedy is to declare the exclusionary...

Court Disposition

Section 18(b) of the Matrimonial Property Act is declared inconsistent with the Constitution to the extent that it prohibits spouses married in community of property from claiming damages for patrimonial loss in respect of bodily injuries. The exclusionary wording is to be substituted, and the order applies...

Orders

  • The words 'other than damages for patrimonial loss' in section 18(b) of the Matrimonial Property Act No 88 of 1984 are declared inconsistent with the Constitution.
  • The words 'other than damages for patrimonial loss' in section 18(b) are to be removed and substituted with 'including damages for patrimonial loss'.