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[2013] ZAGPJHC 135
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Radebe v Road Accident Fund (2012/10855) [2013] ZAGPJHC 135 (9 May 2013)
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REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NO: 2012/10855
In the matter between:
RADEBE,
MOLLY KHABONINA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
MILTZ, AJ
:
INTRODUCTION
1.
The
plaintiff, a 34 year old widow, sues the Road Accident Fund (“
the
defendant
”)
for the loss of support suffered by her and her minor children as a
result of the death of her husband Lifter Bafana Thobela
(“
the
deceased
”)
who died as a result of injuries he sustained in a motor vehicle
collision on 24 February 2011.
2.
The
plaintiff originally claimed loss of support also for Victor Thobela
who she testified had been supported by the deceased prior
to his
death. However, at the commencement of the trial the claim for
loss of support of Victor was abandoned.
3.
I
will revert later in this judgment to deal with the quantum of the
claims for loss of support. It is necessary first to
deal with
the question of the defendant’s liability for the plaintiff’s
claim.
4.
Aside
from admitting that the deceased died as a result of the injuries he
sustained in a collision on 24 February 2011, the defendant
placed
everything in issue at the trial. It is therefore necessary to
deal with the plaintiff’s evidence, none of which
was
controverted by the defendant. The defendant called no witnesses and
knew from the outset that it could not rebut any of the
facts
testified to by the plaintiff.
5.
The
defendant’s case was devoid of substance to such an extent that
Ms Mathebula, who appeared for the defendant, declined
to make any
submissions in closing argument (other than to agree with the
suggestion by Mr Smit, who appeared for the plaintiff,
that the
actuarial report of Mr Gerard W Jacobson could be amended and relied
on by me in determining the quantum of damages).
6.
Before
referring to the evidence I must express my concern at the
substantial resources of the Road Accident Fund and of the justice
system that are being abused and wasted in matters such as this. It
is unacceptable that the defendant should place everything
in the
claim in issue and concede nothing, all in the knowledge that it will
not be able to present even a semblance of a defence
when the trial
proceeds.
7.
Most
alarming in this regard is that even after forcing the plaintiff to
proceed by way of action, the defendant apparently did
nothing at all
to investigate the claim. Nothing in the Court file discloses that
either party discovered any documents. There
are no notices to
suggest that either party called on the other to make discovery, to
provide any particulars for trial or to make
any admissions at any
time. A trial conducted in such a manner is not a trial at all.
8.
The
persons responsible for this farcical regime should be held
accountable for the enormous waste of valuable resources that this
unjustifiable and indefensible approach to litigation consumes. I
have no doubt that very few of the substantial number of cases
against the defendant in this division would ever see the inside of a
Court if they were properly investigated and considered at
the time
and after the claims were made. Even if litigation did become
necessary the relevant procedures provided in the Uniform
Rules of
Court and the rules of practice in this division are more than
adequate to provide that the Court determining a particular
action is
tasked at the trial with determining only those issues, if any, which
remain properly in issue between the parties.
9.
It
is regrettable that in circumstances such as this the Court should
have to make a determination against the defendant relying
entirely
on the plaintiff’s evidence solely because the defendant failed
to investigate and present any case at all.
I intend to mark
the disapproval I express herein with a punitive costs award.
THE
EVIDENCE
10.
The
plaintiff testified that the deceased was her husband and the father
of her children. She handed in a handwritten document
which she
said constituted the memorial of the lobola agreement entered into
between the respective families of the deceased and
her family.
She testified that the lobola agreement was given effect and that the
deceased and his family complied with all
their obligations to the
plaintiff’s family in terms thereof.
11.
She
also testified that after the lobola was paid a party was held at
which goats and sheep were slaughtered. The party was attended
by the
plaintiff’s and the deceased’s families and friends.
At the party the plaintiff wore the traditional dress
of the
deceased’s family in a ceremony. The bra, coat, headdress
and shoes that she wore were given to her by the deceased’s
family to wear in the ceremony. The plaintiff was accompanied by her
family to the party. After the ceremony, which took place
on 19
November 2005, the plaintiff’s family departed and left the
plaintiff with the deceased and his family. The plaintiff
lived with
the deceased until his death.
12.
During
argument Mr Smith referred me to the judgment of Dlodlo J in
Fanti
v Boto and Others
2008 (5) SA 405
(C) and particularly to paragraphs [19] and [20] at
413 G-J where the Learned Judge stated the following in respect of
customary
legal principles:
“
[19]
It is actually relatively easy to prove the existence of a customary
marriage in view of the fact that there are essential
requirements
that inescapably must be alleged and proved. These would be:
(i)
consent
of the bride;
(ii)
consent
of the bride’s father or guardian;
(iii)
payment
of lobola; and
(iv)
the
handing over of the bride.
See: Mabuza v Mbatha
2003 (4) SA 218
(C) at 223
.
[20] The
same requirements are set out as follows by Olivier, Bekker et al in
their work Indigenous Law (Lexis Nexis):
(i)
a
consensual agreement between two family groups with respect to the
two individuals who are to be married and the lobola to be
paid;
(ii)
the
transfer of the bride by her family group to the family of the man.
Regard
being had to the above requirements for the validity of a customary
marriage, payment of lobola remains merely one of the
essential
requirements. In other words, even if payment of lobola is
properly alleged and proved, that alone would not render
a
relationship a valid customary marriage in the absence of the other
essential requirements. See: Gidya v Yingwana 1944
NAC (N and
T) 4; R v Mane 1947 (2) PH H 328 (GW); Ziwande v Sibeko 1948 NAC (C)
21; Ngcongolo v Parkies
1953 NAC (S) 103.
”
13.
The
evidence of the plaintiff summarised above satisfies me that the
requirements for a valid customary marriage were established
by the
plaintiff.
14.
I
have no hesitation in accepting that the plaintiff consented to the
union, that her father who was a beneficiary of most of the
deceased’s family’s obligations in terms of the lobola
agreement agreed thereto, that the lobola due was paid and that
the
plaintiff was duly handed over to the deceased and his family.
15.
The
plaintiff then testified that she and the deceased had three minor
children together. The first child, NPR, was born on
6 July
1994, the second, TPR, was born on 15 September 1998 and the third,
PAGR, was born on 5 June 2007.
16.
N
has successfully completed matric and wants to study law. T in
Grade 8, that is, her first year of high school and she plans
to
study medicine after school. The third child, P, has recently
commenced her school career and obviously her aspirations
for the
future are uncertain.
17.
The
plaintiff testified that the deceased was self-employed. He ran
two tuck shops from approximately 1995 until his death.
The
plaintiff handed in photographs depicting the places of business of
the deceased being the two tuck shops and some stock on
the shelves
and in baskets. Both businesses appear from the photographs in
question to have been small neat grocery shops
which were conducted
from permanent structures.
18.
The
plaintiff testified that for eight months prior to his death the
deceased had given her R15 000 a month for household expenses
as
well as for the maintenance and education of the minor children.
No evidence was given either in relation to the household
and other
expenses or as to the financial needs of the children.
19.
The
only acceptable evidence presented as to the income which the
deceased provided to the household that consisted of the plaintiff,
the 3 minor children, Victor and the deceased is the plaintiff’s
oral evidence that I have already referred to above.
20.
I
am concerned, having regard to the nature of the businesses in the
photographs and the nature of the goods that were sold, that
the
plaintiff may have exaggerated the amount of money that was given to
her by the deceased to meet her monthly expenses.
21.
Nevertheless,
as I have already observed, there is no evidence to contradict her
say so in this (or any other) regard. Accordingly,
I cannot
reject her evidence in any respect as I have no basis for doing so.
22.
However,
the possibility that the reported income produced by the deceased
probably was exaggerated as well as the fact that I have
not been
presented with any documentation or other evidence disclosing the
monthly expenses that the money was used to discharge,
are amongst
the factors that I will include in determining the contingency to be
applied in the quantification of the damages that
will be awarded for
the loss of support claims.
23.
I
am satisfied on the basis of the plaintiff’s evidence that the
plaintiff personally and as the natural and legal guardian
of the
minor children born to her and the deceased suffered damages due to
the loss of support occasioned to them by the death
of the deceased
on 24 February as aforesaid.
THE QUANTUM OF THE CLAIM
24.
In
the amended particulars of claim, the plaintiff claims loss of
support in an amount of R1 129 773. This is broken
down as to:
24.1.
loss
of support for the plaintiff - R332 279;
24.2.
loss
of support for N - R119 735;
24.3.
loss
of support for T - R230 633;
24.4.
loss
of support for P - R447 126.
25.
The
amended claims are premised on loss of support of each of the
children until 31 December following their respective 21
st
birthdays. In providing tables with the figures for loss of support,
Mr Jacobson made certain deductions based on the assumptions
referred
to in his report and by applying certain recognised contingencies
thereto.
26.
For
unforeseen contingencies based on factors such as errors in the
estimation of future earnings and life expectancy, possible
loss of
earnings due to unemployment and sickness, retirement at an earlier
age, dilution of the family income by birth of additional
children
and general hazards of life, Mr Jacobson deducted 5% in respect of
accrued contingencies and 15% in respect of prospective
contingencies
relating to the plaintiff. He also deducted a 15% remarriage
deduction from the calculation for her loss.
27.
In
respect of the children he has provided two bases for his
calculations. The first is that the minor children are dependant
until
the age of 18 years and the second is on the basis that they
are dependant until the age of 21 years. For the purpose of the
award, I am prepared to assume that the minor children would have
been dependant on the deceased until 31 December following age
18.
28.
I
also feel some unease about accepting the contingency deductions
recommended by Mr Jacobson particularly in view of the fact that
the
projections of future income are based entirely on the plaintiff’s
evidence of the support she received from the deceased.
I accordingly
consider it appropriate to increase the percentages as I do below to
reduce the amount estimated for the loss of
future earnings.
29.
In
the premises, I consider that the future contingency for the
plaintiff herself should be 25%, that of T 17.5% and that of P 20%.
I have adjusted the figures accordingly. I accept the
contingency for remarriage by the plaintiff as calculated by Mr
Jacobson
as well as his figures for accrued contingency.
30.
In
the circumstances I consider that an appropriate award to be paid as
compensation to the plaintiff in respect of the loss of
support
occasioned to her and her children by the untimely death of the
deceased is an amount of R998 062. This figure incorporates
the
accrued loss as calculated by Mr Jacobson, prospective losses as
revised by me and also the burial costs of R13 500, which
were
conceded by the defendant during the course of the trial.
ORDER
31.
The
following order is made:
1. The defendant
is ordered to pay the plaintiff the amount of R998 062-00 together
with interest thereon at the prescribed
rate of 15.5% per annum
calculated from 14 days after date of judgment to date of payment.
2. The defendant is
ordered to pay the plaintiff’s costs of suit, on the attorney
and client scale, including the qualifying
and other taxable costs of
the actuary Gerard W Jacobson.
I.
MILTZ
ACTING JUDGE OF THE SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
COUNSEL FOR THE PLAINTIFF
ADVOCATE M SMIT
INSTRUCTED BY
LEON J J VAN RENSBURG
ATTORNEYS,
GERMISTON
COUNSEL FOR THE DEFENDANT
ADVOCATE M N MATHEBULA
INSTRUCTED BY
ATTORNEYS PULE INCORPORATED,
PARKTOWN