IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NO: CCT 48/05

In the matter between:

VANESSA MICHELLE VAN DER MERWE Applicant

and

THE ROAD ACCIDENT FUND First Respondent

THE MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Second Respondent

FIRST RESPONDENT'S HEADS OF ARGUMENT

INTRODUCTION

1. Applicant has instituted an action for damages against First

Respondent arising out of a motor vehicle collision on 24 October 1999

in which she was injured. The collision was the fault of the driver of the

motor vehicle (“the insured driver”), her husband to whom she was

married in community of property at the time. They were subsequently

divorced.

2. Applicant’s claim was based on sec 17, read with sec 19(a) and 21, of

the Road Accident Fund Act, 56 of 1996 (“the RAF Act”),. In terms of

these sections, Applicant’s damages must be paid by the First

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Respondent in the event of Applicant having an enforceable claim

against the insured driver, but for the RAF Act.

3. First Respondent filed a special plea against Applicant’s claim for

patrimonial damages only. The basis for the special plea is that

Applicant, as a spouse married in community of property to the insured

driver, could in law not have claimed delictual patrimonial damages

from him as appears from the common law position modified by sec 18

and 19 of the Matrimonial Property Act, 88 of 1984 (“the MPA”).

Applicant therefore has no claim against the First Respondent in terms

of sec 17 of the RAF Act.

4. Applicant replicated by averring that sec 18(b) of the MPA, which

effectively summarizes the legal position set out in the previous

paragraph, is unconstitutional and invalid in that it

4.1 unfairly discriminates against Applicant in terms of sec 9 of the

Constitution of the Republic of South Africa, Act 108 of 1996,

(“the Constitution”) on the grounds of Applicant’s matrimonial

property regime; and

4.2 amounts to an arbitrary deprivation of Applicant’s property in

terms of sec 25(1) of the Constitution.

5. The issue raised in the special plea was argued as a stated case and

the court a quo upheld Applicant’s constitutional challenge to sec 18(b).

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6. Applicant now applies to this court for confirmation of the order of

constitutional invalidity in a substantially amended form.

7. First Respondent appeals against the order of the court a quo.

THE LAW OF MARRIAGE, COMMON LAW AND THE MPA

8. “One of the cornerstones of the law of marriage is that the parties to a

marriage are allowed to choose the matrimonial property law regime

that is to apply to their union.”1

9. Community of property is one of the “limited number of possibilities

from which to make a selection”2. It unites ante- and post-nuptial

assets and liabilities of the parties.3 It is assumed to be the most

popular en desirable form of marriage for the majority of persons

wishing to marry.4

10. At common law a spouse married in community of property had no

delictual claim for damages, patrimonial or non-patrimonial, against the

other spouse.5 This prohibition did not, and still does not, apply to

1
DSP Cronjé, A de Horak, T Schwellnus & LJ van Zyl: "Marriage" in LAWSA Vol 16, First Re-Issue,
par 62 at p 78
2
Loc cit
3
Op cit, par 46 at p 82
4
Op cit, par 63 at p 80
5
Tomlin v London & Lancashire Insurance Co Ltd 1962 (2) SA 30 (D); Delport v Mutual & Federal
Insurance 1984 (3) 191 (D)
 4

spouses married out of community of property.6 The rationale behind

the common law prohibition was that the proceeds of any judgment

obtained against the other spouse would fall back into the joint estate.

"I cannot accept that the law's ingenuity would not have devised means to
enable a wife to pursue a remedy if she had a right. In my judgment, not the
husband's power of administration, but the existence by law of a joint estate
was and is at common law the obstacle to an action between spouses
married with community of property, an insuperable obstacle in so far as one
claims from the other money or assets out of the joint estate, for, ex
hypothesi, neither has a separate estate and what he or she recovers from
the other comes out of the joint estate and falls back instantly into the joint
7
estate. "

11. The common law position of spouses married in community of property

has through the years been amended by the legislator in some

respects, mainly:

11.1 by sec 2(6) of the Apportionment of Damages Act, 34 of 1956,

as amended, in respect of joint wrongdoers8; and

11.2 by the MPA in various crucial respects.

12. Sec 18 of the MPA allows a spouse married in community of property,

to claim non-patrimonial delictual damages from the other spouse,

which would then become the separate property of the plaintiff spouse.

Non-patrimonial delictual damages recovered by such a spouse from a

third party would similarly “not fall into the joint estate” but become that

spouse’s “separate property”.

6
Rohloff's v Ocean Accident and GuaranteeCorporation Ltd 1960 (2) 291 (A) at 304A.
7
Tomlin v London & Lancashire Insurance Co Ltd (supra) at 33B-D.
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13. Non-patrimonial loss is defined “with reference to the deterioration of

highly personal or personality interests”9. The law recognises

personality rights (and interests) in regard to physical and mental

integrity, bodily freedom, reputation, dignity, privacy, feelings and

identity.10

14. The separate property of a spouse married in community of property is

available to the creditors of the joint estate stante matrimonio and on

insolvency. Sec 17, 18 and 19 of the MPA recognises the existence of

separate property in the relationship of the spouses inter se, but does

not affect the rights of third parties.11

FIRST RESPONDENT’S ARGUMENTS

15. First Respondent’s argument is as follows:

15.1 Discrimination on the ground of “marital status” in sec 9(3) does

not refer to differences between various matrimonial property

regimes, but to differentiation between people who are married

and people who are not married. There is therefore no

differentiation in casu on a ground listed in this section.

8
Delport v Mutual and Federal, op cit, at 193-4
9
H J Erasmus and J J Gauntlett: "Damages" in LAWSA Vol 7, 2nd Ed , par 15 at p 14
10
Loc cit; see also Law of Damages, P J Visser & J M Potgieter, Juta & Co, Ltd, 1993 "Concept of
Damages" at p. 27 Gauntlett: The Quantum of Damages in Bodily and Fatal Injury Cases: Vol 1
General Principles, 4th Ed 1995 Juta, at 4
11
Du Plessis v Pienaar NO and others 2003 (1) SA 671 (SCA)
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15.2 Even if “marital status” can be read as referring to various

matrimonial property regimes, the differentiation in this case is of

a purely patrimonial nature and does not relate to attributes or

characteristics that impact on human dignity.

15.3 For the same reasons differentiation on the basis of different

matrimonial property regimes can also not casu be seen as

being on a so-called “analogous ground”.

15.4 If it is held that there is differentiation it is submitted that:

15.4.1 Applicant had a choice between the various matrimonial

property regimes when she got married and cannot now

complain about the rights and obligations that are

characteristic of the one she chose;

15.4.2 The differentiation bears a rational connection to a

legitimate government purpose, being the regulation of

the rights and obligations relating to the different

matrimonial property regimes; and

15.4.3 The differentiation does not amount to discrimination and

a fortiori not to unfair discrimination.

15.5 Applicant is not entitled to a remedy: in essence what she is

asking this court to do, is to legislate in an area that does not

relate to fundamental human rights, namely the patrimonial

relations between spouses married in community of property.

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AD THE ARGUMENT IN 15(1)

16. It is submitted that discrimination on the ground of “marital status” as

meant in sec 9(3) of the Constitution relate to discrimination between

people who are married on the one hand, and those who are not

married or cannot marry, or are in marriages that are not recognised by

law, on the other hand.12

17. Discrimination on the ground of “marital status” in this context does not

relate to differences between the various matrimonial property

regimes. These regimes relate to proprietary relationships, rights and

obligations in a marriage that would normally not have the potential to

“impair the fundamental human dignity of persons as human beings or

to affect them adversely in a comparably serious manner”.13

AD THE ARGUMENT IN 15.2

18. Claims that relate to highly personal and personality rights – claims for

non-patrimonial loss14 -- are expressly allowed between spouses

married in community of property in terms of the MPA.

12
Daniels v Campbell NO and others 2004 (7) BCLR 735 (CC); De Waal et al: The Bill of Rights
Handbook 4th ed Juta 2001 at 216-217
13
Harksen v Lane NO and others 1998 (1) SA 300 (CC) at par [54]
14
See par 13 above
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19. Applicant’s case is that the inability to pursue patrimonial claims

against her spouse in community of property militates against her rights

to equality and dignity.

20. Such claims relate to the patrimony of the joint estate. They are

typically loss of income for the estate (like loss of earnings and earning

capacity) and expenses for the estate (medical and hospital accounts,

etc). Not being able to pursue such a claim, does not have the

potential to impair the injured spouse’s equality and dignity, it is

submitted.

AD THE ARGUMENT IN 15.3

21. If “matrimonial property regime” could be seen as an analogous

ground,15 it is submitted that differentiation on this ground does not

“have the potential to impair the fundamental dignity of persons as

human beings, or to affect them seriously in a comparably serious

manner”16 for the reasons in the previous paragraphs.

AD THE ARGUMENT IN 15.4

22. Individuals have a choice of matrimonial property regimes when they

decide to get married.

15
De Waal et al, op cit, at 217 et seq
16
Harksen v Lane NO, op cit, at par 46
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23. A difference between the rights and obligations of people married in

terms of the various regimes, which difference relates to the nature of

the particular regime(s), could therefore not normally form the basis for

a complaint of discrimination like the instant one, it is submitted.

24. The inability to sue her spouse for patrimonial delictual damages is one

of the characteristics of a marriage in community of property, like the

inability to sue the spouse for contractual damages or unjustified

enrichment, the inability to have a separate estate that is safe from the

creditors of the joint estate, etc. These factors all fit into the matrix of

rights and obligations (or absence thereof) that constitute a marriage in

community of property and a joint estate.

25. There are per definition differences between the rights and obligations

of spouses married under different matrimonial property regimes.

Some of these differences come from the common law; some are

statutory. They relate rationally to the nature of the specific regime.

26. It is submitted that the difference in the instant case does not amount

to discrimination.

27. If it is differentiation it bears a rational connection to a legitimate

government purpose, being the regulation of the rights and obligations

relating to the different matrimonial property regimes.

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AD THE ARGUMENT IN 15.5

28. In the premises it is submitted that the Applicant is not entitled to relief.

29. The differences between marriages in and out of community of

property amounts, at best for Applicant, to fair discrimination in terms of

section 9(5) of the Constitution. It is submitted that the State had not

unfairly discriminated against the plaintiff directly or indirectly as listed

in section 9(3) on any grounds contained therein since plaintiff had

adopted the marital regime out of her own choice. 17

30. In the event of this Court finding that section 18(b) amounts to unfair

discrimination, then in such event it is submitted that the provision of

section 18(b) has been saved by section 36 of the Constitution.

31. Applicant is effectively asking the court to legislate in a complex area

on a narrow point, not because the existing legislation infringes

17
Minister of Finance and Another v Van Heerden 2004 (11) BCLR at 1142 where Moseneke J states
as follows: [39] The starting point of equality analysis is almost a comparison between affected
classes. However, often it is difficult, impractical or undesirable to devise a legislative scheme with
'pure' differentiation demarcating precisely the affected classes. With each class, favoured or
otherwise, there may indeed be exceptional or 'hard cases' or windfall beneficiaries. That however is
not sufficient to undermine the legal efficacy of the scheme. The distinction must be measured against
the majority and not the exceptional and difficult minority of people to which it applies. In this regard
I am in respectful agreement, with the following observation of Gonthier J, in Thibaudeau v Canada.
'The fact that it may create a disadvantage in certain exceptional cases whilst benefiting a legitimate
group as a whole does not justify the conclusion that it is prejudicial.' and see also at 1154 CC, para 78:
"I wish to make one further observation about the difference between section 9(2) and section 9(3).
Section 9(2) is forward looking and measures enacted in terms of it ought to be assessed from the
perspective of the goal intended to be advanced. The measures must promote the achievement of
equality by advancing those previously disadvantaged in the manner envisaged. This is not to say that
the interests of those not advanced by the measure must necessarily be disregarded. However, the main
focus in section 9(2) is on the group advanced and the mechanism used to advance it." As per Mokgoro
J.
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fundamental rights, but because it frustrates her claim against the First

Respondent. That is also why she wants the order to be retrospective.

32. There are no facts before the court relating to, for instance, the

knowledge of people who want to marry regarding the various regimes,

the practical effect of the prohibition on patrimonial claims between

spouses married in community of property, the reasons for the

amendments to the common law in the MPA, etc.

33. The major engine for law reform should be the legislature and not the

judiciary.18

SEC 25(1) OF THE CONSTITUTION

33. It is submitted that section 25(1) of the Constitution does not apply in

this particular matter:

"Property is a word with such a wide variety of meanings that it is almost

impossible to define accurately or exhaustively. For this reason, lawyers in
Roman Dutch tradition prefer to conceptualise property as a legal relationship
19
between person and corporeal (physically tangible things)."

34. The instant case does not deal with property in the context of sec 25.

CONCLUSION:

18
Du Plessis v RAF (supra) at para 36
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35. It is submitted that the application for confirmation falls to be dismissed

and that the appeal against the order in the court a quo be upheld.

36. It is further submitted that this Honourable Court should make such an

order to costs as it deems fit.

_______________________
THEONIEL POTGIETER SC

_____________________
MOHAMED SALIE

First Respondent's Counsel

Chambers
CAPE TOWN
18 NOVEMBER 2005

19
De Waal, Iain Currie, Gerhard Erasmus, The Bill of Rights Handbook (supra), at p. 143