Johannesburg -
The time has come to move away from the sexist criteria of looking at a widow’s looks and how she carried herself to determine her prospects of remarrying in the determination of how much she should receive in damages.
This was the comment from a judge sitting in the Pretoria High Court, who presided over a claim by a Benoni widow, Elizabeth Robinson.
Her husband was 33 years old when he died in a motorcycle accident in January 2011. He was the sole breadwinner.
His widow claimed damages from the Road Accident Fund on behalf of herself and their minor child for loss of support.
The RAF conceded liability for the damages and funeral expenses. However, it disputed the amount of damages claimed for loss of support.
In dealing with this issue, the court looked at the widow’s prospects of remarrying and acquiring additional income.
Lawyers acting for Robinson argued that the remarriage contingency is contrary to the new constitutional dispensation, as it offends against the gender equality provisions.
A 1963 judgment provided that, among other things, the age, character and appearance of the widow had to be considered by the court in deciding on the contingency.
Acting Judge KL Manamela remarked that there were no fixed bases for assessing the prospects of remarriage, but that the court must determine this issue based on fairness and reasonableness.
He said that he was “relieved” the widow did not testify at the hearing, “lest I was expected to include in my assessment her appearance as an indicator of her prospects of marriage”. He added: “Perhaps the time had come to jettison these patently sexist, insensitive and baseless criteria.”
“We may have to develop some new forms of assessment which are not gender-based.”
The judge deducted 20 percent as a “remarriage contingency”.
He ordered the RAF to pay her R5.2 million.
- Independent on Saturday