Authors – Zunaid M Lundell
The Brenda Jacobs v RAF (2017) NGHC (Jacobs) and Paulina Mahapeloa v RAF (2015) SGHC (Mahapeloa) judgments expand the liberal stance that the Judiciary has adopted over the past decade regarding the recognition of permanent life partnerships and conjugal relationships.
In the Mahapeloa case, the court had to determine whether a surviving life partner has a right in law to claim loss of support from the Road Accident Fund (RAF). It was held that the short duration of a relationship is not a conclusive factor, one should also look at the surrounding circumstances of the relationship and consider factors on a case-by-case basis. It was further held that a mechanical approach to assessing the evidence before court should be avoided, rather all relevant evidence must be adjudicated and weighed up against the question of whether a conjugal relationship exists. It was held that a permanent life partner has a legal right to claim loss of support from the RAF.
The following 8 elements were analysed as being relevant to the evaluation of whether a conjugal relationship existed:
- the promise of lobola negotiations;
- social context of the persons involved, and their cultural beliefs;
- existence of reciprocal duties of support;
- contribution to the upkeep of the common home;
- sharing of household duties and expenses;
- the existence of any shared children between the plaintiff and the deceased;
- the relationship of maternal and paternal family members with the plaintiff and the deceased;
- whether the relationship would have continued but for the death of the life partner – a sine qua non test.
The court also noted in obiter that the existence of uniformity regarding the culture and process of labola in South Africa is a misnomer and such traditions vary between different cultures of South Africa.
Collis J in the case of Jacobs further expanded on this, stating that Courts must adopt a progressive approach to recognition of permanent life partnerships as many people choose not to marry yet subscribe to, and maintain the duties married couples generally bind themselves to. It was further stated that courts should remain cognisant of section 9 of the Constitution, which provides that the “[S]tate may not unfairly discriminate directly or indirectly against anyone on one or more grounds including… marital status….”.
Collis J evaluated whether a conjugal relationship existed by adopting a two-pronged approach:
Step 1: assess whether there exists an agreement (tacitly or expressly) which creates a binding obligation:
- determine whether a tacit agreement exists, one must assess the surrounding circumstances between the plaintiff and the deceased;
- determine whether the plaintiff and the deceased referred to each other as husband and wife;
- determine the length of the relationship and how stable this relationship was;
- determine the financial interdependence between the plaintiff and the deceased.
Step 2: assess whether the relationship meets the boni mores criteria:
- determine whether the relationship which existed between the two individuals was truthful and real; and
- determine whether the boni mores of society would recognise the relationship in question, thus affording the individuals legal rights generally reserved for those who are in formal marital regimes.
It is clear that courts are adopting a progressive outlook to the existence of permanent life partnerships, however the evidentiary burden rests with the Plaintiff to prove that
a conjugal relationship or permanent life partnership actually existed.
 See also: Paixao v RAF 2012 (6) SA 377 (SCA).