Pretoria - To determine the prospects of a widow to remarry proved to be a legal pickle for the courts as age, health, appearance and the circumstances of the widow had to be taken into account.
But a Gauteng High Court, Pretoria, judge overturned that law on Monday, calling it outdated and extremely offensive to women.
Judge Ronel Tolmay dealt with the case of Lelanie Esterhuizen, whose husband Pieter died in a car accident on March 5, 2013.
Her husband was the sole breadwinner and his wife and two children depended on him for financial support, so Lelanie claimed maintenance from the Road Accident Fund (RAF) for herself as mother to look after the two children.
They lived in Bethal, outside Pretoria at the time, but had subsequently moved to Port Elizabeth.
The exact amount she was claiming was not stated in the recent judgment by Tolmay, but a court earlier found the RAF 100% liable for all damages she could prove she had suffered due to her husband’s death and the loss of financial support.
Judge Tolmay remarked that the possibility of remarrying was usually taken into account when the claim for loss of support was considered in law. In those cases, the courts calculated the percentage it deemed possible for remarriage, and then subtracted that amount from the total amount the RAF would pay.
That process, called a remarriage contingency, made provision for the possibility of another breadwinner stepping into the shoes of the deceased.
In the past, the younger and prettier the widow was, the higher the remarriage contingency fee. So prettier widows received less.
But the more children she had, the likelihood of her remarrying became less, as did the remarriage contingency fee.
In this case, it was argued that a 20% contingency should apply. But the RAF asked for 39%. An actuary report stated that a 39% deduction was the average for a “35-year-old female with two children”.
Esterhuizen told the court that her husband had been the only breadwinner in the family and since his death she had been unable to find work.
Judge Tolmay referred to past case law, remarking: “Adjustments must be made according to the appearance, personality, nature and attitude to remarriage of the person concerned.” One judge had said in one such case that “the plaintiff is in appearance an average person for her age and not unattractive”.
Three years later, another court in a similar case again remarked that the appearance, age and number of financially dependent children played a role in determining the percentage to be deducted.
Judge Tolmay now remarked that “these two cases, as far as it relies on a woman’s appearance and nature, reveal a rather outdated and offensive approach towards women. To take appearance and nature in consideration is not in accordance with the constitutional values of dignity and equality enshrined in our Constitution.”
The judge said these factors should not be part of our law.
She referred to more recent judgments where the realities of re-
marriage depended on other factors rather than the widow’s physical appearance. “It keeps in mind that an award of damages should be fair, allowing for the possibility of remarriage is appropriate, but no reliance should be placed on factors such as appearance.”
The judge said it must also be borne in mind that a second marriage may not result in financial support or it may not even last.
“To determine the plaintiff (Esterhuizen’s) prospects of remarriage and the possibility of financial support, is to gaze into the proverbial crystal ball,” the judge said.
In determining the prospects of remarriage, Judge Tolmay took into account that Esterhuizen was relatively young. “I think one can accept that a younger woman might be more inclined to remarry, not based on appearance or desirability, but rather based on the fact that one might be more inclined when you are younger to take another chance.”
In this case, the judge ordered a contingency fee of 27%.