An unemployed KwaZulu-Natal woman lost a legal battle with the Road Accident Fund (RAF) after she was unable to prove to the high court that she was entitled to receive financial support from the fund following the death of her partner.

The ruling was made by the KwaZulu-Natal High Court in Pietermaritzburg after Lulama Felicity Primrose Keth Kunene failed to prove that her 13-year relationship with the deceased was legally recognised under customary marriage.

Kunene failed to claim a portion from the deceased estate and as an alternative, she sought relief in the high court hoping to get compensation from RAF.

RAF conceded 100% liability for the deceased's death, however, in order to pay Kunene loss of support, the fund wanted Kunene to prove that she was legally married to the deceased.

Explaining her relationship in detail, Kunene told the court that she started dating the deceased while she was still a teacher in 1998.

The deceased was married when the relationship started, and he worked as a magistrate at Nqutu and also had business interests.

Kunene said the deceased sent a lobolo delegation to her home in November 2004 and after negotiations ensued, a sum of R20,000 was paid.

In 2005, she gave birth to their first child, she said she was living in her flat at the time.

Subsequent to the birth, the deceased bought a flat and they lived together in the new flat and Kunene rented out her flat.

After some time, Kunene transferred her flat into the deceased's name because she believed that they were married, and she was now part of his family.

In 2007, Kunene gave birth to their second born and the deceased bought them a house because the flat was too small to accommodate the growing family.

In 2010, she resigned from her teaching job to look after the children acting on instructions by the deceased.

She said when her pension fund was paid, she gave the deceased the money to invest it.

In 2013, the deceased moved them to Pietermaritzburg in search of good education for their children and they were both registered at St Charles College.

She said the deceased covered all expenses including school fees, medical aid, transport and accommodation. The deceased also gave her an allowance R6,000 per month, which he increased to R8,000 in 2014.

She insisted that the deceased did not want her returning to work, and even offered to pay her an amount equivalent to a teacher’s salary so that she could continue to be a fulltime mother to the children.

Moreover, she added that it was hard going back to her profession because of her age.

During cross-examination, it emerged that the deceased actually lived with his wife and only visited Kunene and the children during the weekends.

Kunene conceded that the deceased did not marry her, and that the marriage remained an unfulfilled promise in their 13-year relationship.

She was also not aware if the first wife knew about their relationship because she was never introduced to the first wife.

However, she insisted that the deceased had intended to take her as his second wife and promised to marry her when he proposed in front of their friends and gave her an engagement ring.

When challenged about being an outsider to the deceased’s family, Kunene said she was known to the deceased’s cousin who lived in Eswatini, the deceased’s oldest son from another relationship, and to the deceased’s friend.

To support her case, Kunene brought her cousin who was present during the lobolo negotiations.

The cousin told the court that he didn't participate in the negotiations, but he was requested to take notes at the lobola negotiations.

He said he learnt for the first time at the lobolo negotiations that the deceased was married and intended to make Kunene as his second wife.

He added that there was no celebration of a traditional ceremony after the lobolo payment.

But he said he would see the deceased visiting Kunene in Richards Bay on weekends.

During cross-examination, he testified that there were no discussions about whether the first wife had consented to the deceased having a second wife.

He further admitted that that no other customs were performed after lobolo negotiations to complete a customary marriage between Kunene and the deceased.

Kunene's mother also testified and told the court that she recognised the deceased as her daughter's husband.

She admitted that she was not aware that the deceased had a wife until he informed her that he intended to take her daughter as his second wife to build him his retirement home.

She conceded that there were no other traditional celebrations held to conclude a customary marriage between her daughter and the deceased.

According to her, the marriage did not take place because the deceased had other financial commitments and did not send his delegation back to complete the lobolo negotiations and pay the outstanding amount.

The mother further explained that the deceased was waiting to retire so that he could use his pension to pay the rest of the lobolo that was still to be negotiated but insisted that the deceased still intended to marry her daughter.

Acting judge Nako, who presided over the matter, said it was clear that Kunene and the deceased were in an intimate relationship but the unfulfilled promise of marriage, coupled with the clear separation in asset ownership and the marriage of the deceased to his first wife, were indicative that this relationship was no more than a love relationship, encompassing financial support from the deceased to Kunene to ensure that she was available to look after their children.

Judge Nako said due to the nature of their relationship, it cannot be concluded that if the deceased had terminated his support to Kunene, she would be in a position to claim from him.

"The law, as it stands, entitles a person to claim from the Road Accident Fund what they are legally entitled to. This relationship was not akin to a marriage, and as such, the duty of support does not arise," said the judge

Additionally, the judge said the route of customary law marriage was open to Kunene and the deceased and yet it was not fully explored, as a result, Kunene was not part of the deceased's larger family unit.

Judge Nako dismissed Kunene's application with costs.

sinenhlanhla.masilela@iol.co.za

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