Relying on a widow’s appearance and nature to determine her chances of remarriage in a loss of support claim was an outdated and offensive approach towards women, a North Gauteng High Court judge has said.
Judge Ronél Tolmay ruled that it was a correct and realistic approach to allow for the contingency of remarriage in determining the loss of support of a widow and her children, but stressed that the likelihood should not be based on the strength of the woman’s physical appearance.
A young Port Elizabeth widow, Lelanie Esterhuizen, turned to the court for relief when she was unable to reach a settlement with the Road Accident Fund (RAF) about the contingency deduction that should be applied to allow for the possibility of remarriage.
Esterhuizen sued the Road Accident Fund for loss of support for her and two of her children after her husband died in a car crash in March 2013.
The RAF conceded liability for their loss, but insisted on a 39% contingency deduction for remarriage, while the young widow argued for a much lower percentage as she had no desire to remarry and wanted to focus on her children.
She was a homemaker at the time of her husband’s death and was unable to find a job because of her level of education and lack of work experience.
Tolmay ruled that a 27% contingency would be fair.
In the past, apart from the number of children and attitude to marriage, factors like the appearance and personality of the widow were taken into account to determine the chances of remarriage.
In one such case, the court reduced the contingency because the widow was disfigured as her breast had been removed, but Tolmay said it was not in accordance with the constitutional values of dignity and equality to take a widow’s appearance and nature into consideration.
However, she said it was a realistic approach to allow for the contingency of re-marriage as it would reinstate the widow’s right to support.
Esterhuizen was relatively young and one could accept that a younger woman might be more inclined to remarry not based on appearance or desirability, she added