IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA Van der Merwe v The Road Accident Fund and Another
CCT48/05 Date of hearing: 24 November 2005 _____________________________________________________________________
MEDIA SUMMARY
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The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 24 November 2005, the Constitutional Court will hear a case in which Mrs Van der Merwe (the applicant) seeks confirmation of an order of the Cape High Court declaring that section 18(b) of the Matrimonial Property Act 88, 1984 is inconsistent with the dignity and equality guarantees of the Constitution and therefore invalid.
On the 24th of October 1999, at a Pick n’ Pay in Goodwood, Cape Town, Mr David van der Merwe intentionally drove his motor vehicle into his wife, the applicant. As a result of the collision, she sustained severe bodily injuries for which she had to receive extensive medical treatment. At the time of the collision the Van der Merwes were married in community of property. They have since been divorced.
The applicant instituted action against the Road Accident Fund, seeking to recover patrimonial and non-patrimonial damages suffered as a result of injuries sustained. At the time of the collision the Fund had insured the vehicle concerned. The Fund disputed its liability to pay the applicant on the basis that at common law as modified by section 18 and 19 of the Matrimonial Properties Act, a person married in community of property may not sue his or her spouse for patrimonial damages arising from the wrongful conduct of the other spouse. To meet this defence Mrs van der Merwe, in a special plea, challenged the constitutionality of section 18(b) of the Matrimonial Properties Act which effectively bars her claim for patrimonial damages.
The High Court found that the challenged section undermines the dignity of applicant and unfairly discriminates against her under equality clause of the Constitution on the ground of her matrimonial property regime.
In this Court the Fund asks for leave to appeal against the decision of the High Court.
Besides the order for confirmation of the declaration of invalidity, the applicant asks that the Minister of Justice and Constitutional Development be joined as a party to the proceedings. The Minister does not oppose confirmation of the order of constitutional invalidity.
Women’s Legal Centre has been admitted as amicus curiae. The Centre supports the confirmation of the declaration that section 18(b) is in consistent with the Constitution and argues that although the section is on its face gender neutral it disproportionately affects women who are married in violent and abusive relationship. The Centre
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further asserts that the challenged section also infringes upon section 12 (1)(c) (freedom from violence) and section 12(1)(e) (cruel, inhuman or degrading treatment or punishment) of the Constitution.
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