December 7, 2018

Common law and common sense

One of the things that I love about being a lawyer is observing the evolution of law.

We have two sources of law: statute law, which consists of laws passed by parliament, and common law. Common law is unwritten law that has developed over the years. It probably started with the Ten Commandments.

South African common law is particularly interesting: it includes influences from indigenous customary law (from all of the different ethnic groups), Roman-Dutch law and English law. Common law mirrors the values and morals of society. It follows, then, that common law is not static, but develops as society’s values and morals evolve.

South African law has a principle of precedent, where courts are bound to follow judgments of our superior courts. Common law is developed by our superior courts when they pass judgments modifying it. And, due to the principle of precedent that is entrenched in our law, our courts are bound to follow previous judgments of our superior courts. Where there are conflicting judgments, which sometimes happens, the Supreme Court of Appeal, or the Constitutional Court when there is a constitutional issue at stake, has the final say.

The Pretoria High Court recently handed down an interesting judgment that develops the common law relating to maintenance, with significant benefits to people in a permanent relationship who choose not to marry.

At common law level, if someone unlawfully causes the death of a person who has dependents, the dependents have a claim against that person for loss of support. The dependents have to be legal dependents, in the sense that the deceased owed the dependents a duty of support. Parents and children have a reciprocal duty of support, and spouses have a reciprocal duty of support.

In South Africa, there is no such thing as common law marriage. Even if you and your partner have been living together for many years and intend to do so until one of you dies, you are not husband and wife and you do not have the legal rights, obligations and benefits that a husband and wife have unless your relationship has been formalised by a marriage in terms of the Marriage Act or a civil union under the Civil Unions Act.

Brenda and Wesley lived together for 6 years. Wesley, who was still married but separated from his wife, moved in with Brenda and her children. From that time, Brenda stopped working and was a stay at home mom, while Wesley supported her and her two children. They were planning to marry when Wesley’s divorce went through. Before this happened, Wesley was killed in a road accident. Brenda claimed loss of support from the Road Accident Fund. The RAF defended the claim on the basis that Wesley did not owe Brenda a duty of support, as they were not married.

Section 9 of our constitution is the equality clause. One of the things that it says is that a person cannot be discriminated against due to their marital status. Our courts recognise the sanctity of marriage. In one Constitutional Court judgment it was said: “Marriage and family are important social institutions in our society.  Marriage has a central and special place, and forms one of the important bases for family life in our society”.

But our courts also have a duty to develop common law.  As the judge in Brenda and Wesley’s case said, “this entails developing the common law in accordance with extant public policy”. Of course, drastic law reform is Parliament’s job; where there are laws that are out of sync with our society, Parliament must pass laws to repeal or replace them. But our courts do have a responsibility to make incremental changes that are necessary to keep common law aligned with the changing fabric of society. Our courts would do us an injustice if they were to blindly perpetuate rules whose social foundations have long disappeared.

In Brenda and Wesley’s case, the judge found that the relationship was “similar to a family relationship arising from a legally recognised marriage”. It followed, he reasoned, that to deprive her of her dependents’ action would amount to discrimination that is outlawed by section 9 of the Constitution.   The upshot is that our common law has been developed to the effect that relationships that are akin to marriage create the same rights as a marriage or a civil union.

While marriage remains an important base for family life, it is not the only one. Many people live together in permanent monogamous relationships without being married, either by choice or due to a legal bar to marriage. It is only right that they enjoy the same that married couples do.


Robin Twaddle


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