A gay man claiming compensation from the Road Accident Fund scored a legal victory for homosexuals on Friday in the Supreme Court of Appeal in Bloemfontein.
Appeal Judge Tom Cloete found in favour of Antonie Michael du Plessis, whose long-term partner, Albert Ernest Clack, died in 1999 in a vehicle collision.
Cloete ordered the Road Accident Fund on Friday to compensate Du Plessis for 75% of the damages he suffered for loss of Clack’s financial support.
The judge also ruled the fund liable to pay Clack’s funeral costs.
The two men had been in a stable relationship similar to marriage for 11 years when Clack was killed in September 1999. Because Du Plessis had been medically boarded, Clack had been maintaining him to a large extent financially.
Du Plessis is currently living off an inadequate disability pension.
Cloete found that Du Plessis and Clack tacitly undertook to support each other and were therefore legally bound to do so. Their relationship was similar in all respects to that of a heterosexual married couple.
In his judgement Cloete said the main Constitutional rights relevant to the case were those to equality and human dignity. Nobody may unfairly discriminate against anyone on the ground of sexual orientation.
The common law only afforded heterosexual married couples the right to action against wrongdoers who unlawfully killed their spouses. It could therefore be inferred that the common law unfairly discriminated against same-sex partners, Cloete said.
Internationally there had been increasing moves by legislatures and courts to confer greater rights on same-sex partners.
Cloete said the high court erred by finding that it was the South African legislature’s duty, and not the courts’, to develop the common law accordingly.
”The Constitution provides that the Constitutional Court, this court and the high courts have the inherent power to develop the common law, taking into account the interests of justice,” he said.
”In order to give effect to a right in the Bill of Rights, (a court) must develop the common law to the extent that legislation does not give effect to that right.”
By granting Du Plessis the right he requested, ”would be an incremental step to ensure that the common law accorded with the dynamic and evolving fabric of our society”.
This would be in step with the Constitution, recent legislation and judicial pronouncements.
Cloete said he expressly left open the questions whether similar rights should be given to unmarried people in a heterosexual relationship or to any other relationship. – Sapa