About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 402
|
|
T v Road Accident Fund (2013/22829) [2014] ZAGPJHC 402 (22 September 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO
2013/22829
DATE: 22
SEPTEMBER 2014
REPORTABLE
OF INTEREST TO
OTHER JUDGES
Id the Matter
between:
T[...], J[...]
M[...] NO.
…......................................................................................................
PLAINTIFF
AND
ROAD ACCIDENT
FUND
.............................................................................................
DEFENDANT
JUDGMENT
SUTHERLAND J:
Introduction
1. A single
controversy arises from the circumstances described, all other issues
having been settled and agreed between the parties:
1.1. The plaintiff
is the biological grandmother and, since 13 March 2009, the adoptive
mother of V[...] T[...], a minor, at present
14 years old,
1.2. V[...]’s
biological father, and biological son of the plaintiff, is D[...]
C[...] T[...], who was killed in a motor car
accidcnt on 30 January
2012. (D[...])
1.3. The Defendant
has admitted that it is liable for damages suffered by any person
resulting from the death of D[...], as contemplated
by section 17 of
the Road Accident Fund Act 56 of 1996 (RAF Act)
1.4. The plaintiff
has claimed damages for loss of support from D[...] for V[...].
1.5. It is common
cause that D[...] supported V[...].
1.6. However, the
defendant contends that because D[...], albeit he was the biological
father of V[...] and would have, ordinarily,
had a duty of support
towards her, that duty was extinguished when the adoption took place,
1.7. Accordingly,
the defendant contends that it is not liable to compensate V[...] for
the loss of the support which D[...], de
facto, contributed towards
her maintenance,
2. The sole question
for decision is whether the defendant is liable to compensate V[...]
for the loss of the support contributed
by D[...] and that turns on
whether she had an enforceable right against D[...].
The relevant
Facts
3. The material
evidence was given by the plaintiff.
4. V[...] was bom on
[...] 2002. Her parents were not married. During the early years of
her life, she and her biological mother
lived together, at times on
their own, and at other times, with the grandparents, the plaintiff
and her husband. D[...] was living
away from home, a circumstance
determined by work commitments. He visited home as opportunities
arose. V[...]’s biological
mother drifted away and sought a
life independent of the burdens of child rearing. Subject to his
absences away for work, D[...]
remained involved in V[...]'s life.
V[...]’s de facto home becamc that of the grandparents and her
day-to-day caregivers
were her grandparents.
5. In pursuit of the
best interests of the child, a consensus was reached that V[...]
ought to have the stability of a permanent
home with the
grandparents. It was in that context, after some time, it was decided
that the de facto situation be formalised by
an adoption. The
Childrens’ Court, Roodcpoort, eventually issued an order of
adoption on 13 March 2009. V[...] was then 7
years old. Her
biological mother has had no further communication with the family.
6.
D[...] remained intimately in touch with V[...] at all times. In
2006, he joined his father in business, and thus no longer lived
at a
material distance from V[...], whereupon he then established his
personal home at the place of business of his father, not
far distant
from the home of the grandparents. According to the plaintiff,
throughout V[...]
'
s
life, D[...] had a father/daughter relationship with her and was
involved in her life. He contributed financially throughout her
life
to her upkeep, both before and after the adoption.
7. The factual
matrix presented in this case appears to be novel. On behalf of the
defendant it is contended that our law does not
recognise a duty of
support under these circumstances. Whether or not that is correct,
and if so, the common law must be developed
to provide for such a
right is the issue before this court.
The law
8. Adoption is
regulated by chapter 15 of the
Childrens Act 38 of 2005
. What
concerns the present controversy is the invariable consequences of an
adoption on the duty of support by a ‘former’
parent.
Section 242
addresses the effects of an adoption order, It provides
that:
“
(1)
Except when
provided
otherwise
in
the order or in a post-adoption agreement confirmed by the court
an
adoption order terminates-
(a)
all parental
responsibilities and rights any person, including a parent\
step-parent or partner in a domestic life partnership,
had in respect
of the child immediately before the adoption
;
(b) all claims to
contact with the child by any family member of a person referred to
in paragraph (a);
(c) all rights and
responsibilities the child had in respect of a person referred to in
paragraph (a) or (b) immediately before
the adoption; and
(d) any previous
order made in respect of the placement of the child.
(2) An adoption
order-
(a)
confers full
parental responsibilities and rights in respect of the adopted child
upon the adoptive parent;
(b) confers the
surname of the adoptive parent on the adopted child, except when
otherwise provided in the order;
(c) does not permit
any marriage or sexual intercourse between the child and any other
person which would have been prohibited had
the child not been
adopted; and
(d) does not affect
any rights to property the child acquired before the adoption.
(3)
An adopted child must for
all
purposes
be
regarded as the child of the adoptive parent and an adoptive parent
mast for
all
purposes
be
regarded as the parent of the adopted child.”
(Emphasis
supplied)
9.
The
emphasised text is forthright in its purpose: the extinction of both
rights and duties of the 'former' parent. The forthrightness
of the
text is however qualified by the introductory caveat, ie, that such
are the conscquences,
unless
a court orders otherwise.
Moreover, these consequences can be modified by an agreement reached
between the former parent and the adoptive parent,
after
the
adoption, which agreement achieves enforceability upon confirmation
by a court.
10. In Centre for
Child Law v Minister of Social Development
2014 (1) SA 468
(GNP),
Louw J dealt with a prayer for a declaratory order in respect of
children in two families.
In
each case, one biological parent had deserted the caregiving parent
and child. The carcgiving biological parents had married
and their
spouses wished to adopt their stepchildren. They understood the text
of the section to mean that upon such adoption by
the ‘new’
spouse, the remaining biological parent would ipso facto forfeit
parental rights. The court endorsed the
view that the text, properly
interpreted, achieved exactly that result. However, the absurdity of
that outcome was capable of being
averted by the court upon making an
adoption order, 'providing otherwise’fat [14]. Thus, Louw
J,
in
resolving the practical problem put before the court, thereupon found
it unnecessary to interrogate the constitutionality of
the
provisions.
11.
In my view, the episode serves to alert one to an unsatisfactory
dimension of the primary text in the provision, and it would
seem
that its overbroad ambit warrants revisiting. The episode also serves
to draw attention to another facet of the provisions;
ie, the wide
scope for judicial discretion in the allocation of parental rights
and responsibilities between natural or former
parents and present
adoptive parents in the terms of an adoption order. The effect of an
adoption order in terms of
section 242
(1) is therefore not a fixed
and immutable bundle of unchangeable rights and duties, but rather,
section 242
(1) merely sets out a default position that may be varied
in accordance with an order, tailored ad hoc to a specific child.
Self-evidently,
the scope of such variation is limited by a properly
exercised judicial discretion within the compass of the objectives of
the
Childrens’ Act. Moreover
, such a variation from the default
position can be effected
ex
post facto
the
grant of an adoption order. The primary value choice that permeates
the
Childrens Act is
the pursuit of the best interests of the child.
12.
In the ease of V[...] T[...], the default position in terms of
section 242(1)
does prevail. Nevertheless, the significance of these
observations is that the
Childrens’ Act recognises
, albeit
obliquely, that the extinction, in the literal sense of that term, of
parental rights and duties is merely one possible
regime of a given
adoption, that a reversal is possible, and that a spectrum of
positions is possible. In my view these possibilities
are
inconsistent with the idea that once a ‘former' parent ceases
to be a parent
ex
lege,
the
existence of a legally enforceable duty of support is no possible.
13. I now address
case law which has dealt with the duty of support in relationships
other than that the type of relationship that
existed between V[...]
and D[...] T[...].
14. The scope for
the recognition of a duty of support premised on factors other than
the traditional grounds, ie, parenthood or
marriage, has received
considerable judicial attention.
15. In 2006, Grogan
AJ had occasion to address a claim by a man for compensation from the
RAF arising from the loss of support he
enjoyed from his son. The
ease was reported only four years later as Jacobs v RAF
2010 (3) SA
263
(SE). The issue there, as here, was whether there was a legally
enforceable duty of support. The case was decided on the common
law
principle that a child had a duty to support a parent if the parent
was indigent or given the parents ‘station in life’
supplementation of support was necessary, (see; Oosthuizen v Stanley
1938 AD 322
at 327 - 328) However, in an obiter dictum Grogan AJ said
at [22]:
“
[22]
There is a further consideration. It would in my view be invidious
were this court to rule that the deceased had no duty to
support his
father
when he had
voluntarily assumed that obligation.
In
my view this undertaking gave the plaintiff a.
reasonable
expectation
that
his maintenance contributions would continue.
A
duty of support between family members is one of those areas in which
the law gives expression to the moral views of society
.
In the present ease the plaintiff did not have to enforcc his right
to maintenance from the deceased.
The
deceased voluntarily assumed that obligation. In my view this is
sufficient in itself to warrant a finding that the plaintiff
had
acquired a right to maintenance from his son, which was enforceable
against the insured and, by law, against the defendant.
”
(emphasis supplied)
16. Grogan J seems
to imply that indigence might not be a necessary precondition.
Self-evidently, in regard to a minor, the issue
of indigence does not
arise. Moreover, the voluntary assumption of such a role, Grogan AJ
posited, could ground the existence of
such right. Moreover, the
morality of society endorsed the idea that a family member ought to
support another family member.
17. In Fosi v RAF
[2007] ZAWCHC 8
;
2008 (3) SA 560
(C), Dlodlo upheld a claim for compensation for the
loss of support by a child to a parent. It was held that the origin
of the
obligation resided in customary law and more especially in the
idea that were a child not to support a needy parent the child would
not be possessed of Ubuntu. However, at [26], Dlodlo J went on to
approve the dictum of Grogan AJ in Jacobs v RAF (Supra) as a
distinct
ground for so holding.
18. In both these
judgments the impact of the morality of society about supporting a
parent, in need and the voluntary assumption
of that support was
emphasised as relevant to the duty arising and being enforceable
against third parties.
19. In Du Plessis v
RAF
2004 (1) SA 359
(SC A) the line of authority which endorses the
concept of a ‘duty worthy of protection’ was addressed in
the context
of persons, not married, and unable under the law of the
day to many, who voluntarily assumed an obligation to support their
partners,
and which, in turn, gave rise to a contractual obligation
to do so. The primary burden of the judgment was to outlaw
discrimination
between persons on grounds which do not accord with
the morality of society at a given time. In formulating what ought to
bo the
enquiry, the court borrowed from the remarks made by Fleming
in The Law of Torts 4
th
Ed at 136, The court held at [17]:
‘
The
next question to be decided is whether the right of the plaintiff to
such support is worthy of protection by way of an action
against the
defendant, or, put differently, whether the killing of the deceased
should be considered to have been a wrongful act
as against the
plaintiff. In Amod, relying on Henery, it was said that
the
question had to be answered in the light of prevailing boni mores
.
In Knop v Johannesburg City Council
1995 (2) SA 1
(A) at 27G -1 Botha
JA adopted the following formulation of the nature of the enquiry:
'In short,
recognition of a duty of care is the outcome of a value judgment,that
the plaintiff's invaded interest is deemed worthy
of legal protection
against negligent interference by conduct of the kind alleged against
the defendant. In the decision whether
or not there is a duty, many
factors interplay; the hand of history, our ideas of morals and
justice, the convenience of administering
the rule and our social
ideas as to where the loss should fall. Hence, the incidence and
extent of duties are liable to adjustment
in the light of the
constant shifts and changes in community attitudes.'”
20. The notion of
the morality of society is again the premise for the viewpoint.
21. In Verheem v RAF
2012 (2) SA 409
(GNP), Goodey AJ had regard to the morality of
society in addressing a claim for compensation for loss of support by
a partner
in a heterosexual relationship, outside of marriage, upon
the death of the other partner. He alluded to the decision in Meyer v
RAF, an unreported decision (TPD 2004/29950), in which a couple lived
as man and wife and it had been held that, nothing inhibited
them
marrying and in which case a court had held that no duty of support,
enforceable against a third party, could exist, and offered,
as a
rationale, that it was inappropriate to give approval to
relationships that resembled marriages because the sanctity of the
institution of marriage might be imperilled by so doing. Goodey AJ,
nevertheless, found an enforceable duty did exist, distinguishing
Meyer v RAF, on the grounds that the relationship between the
partners was permanent, stable and long term, included the deceased
forging a relationship with the daughters of his partner as a de
facto father, and that the parties contemplated marriage, when
they
had enough money to have a ‘decent wedding’. Goodey AJ
concluded that:
‘
..the
right of the plaintiff to be supported by the deceased has been well
established and is legally enforceable and worthy of
protection.’
22. This judgment
signals that an enforceable duty of support in the context of a
relationship that could be described as a quasi-marriage
was worthy
of protection. The view expressed in Meyer v RAF has not been
followed.
23. In Paixao
& Another v RAF
2012 (6) SA 377
(SCA) the court developed
the common law to deal with the duty of support between umnarried
heterosexual couples and held that
a dependant's action existed where
a contractual duty of support had been established, The circumstances
in that case were that
the Plaintiff had formed a relationship with
one Gomes and they lived together. Gomes supported the plaintiff and
her children.
He paid for the wedding of the plaintiffs daughter. He
had made a will in favour of the plaintiff. He was already married
and an
intended marriage between Gomes and the plaintiff was deferred
until he was divorced, He eventually did divorce his wife. Before
a
marriage to the plaintiff could take place he was killed. It was
accepted as a fact that he had contractually bound himself to
maintain the plaintiff and her family indefinitely, The key issue was
whether that contractual right was enforceable against third
parties.
24. The judgment
addressed several issues bearing on considerations mentioned above, 1
understand Cachalia JA, writing for the court,
to have established
that:
24.1. The point of
departure is the question whether a dependant claimant has a right
worthy of protection by law; [12]
24.2. The answer is
determined by reference to the morality of society, which is divined
by an exercise of judicial policy-making
aimed at acknowledging that
social changes warrant iegal norms to cncourage social
responsibility’ [13]
24.3. The common
law, historically, has not been inflexible about the categories of
persons who it is appropriate to recognise as
having a claim on
support from others, and in particular, a blood relationship is not a
sine qua non; [14]
24.4. An agreement
to support another person may arise tacitly, [17], [18]
24.5.
The right to support that may arise does not arise because it is a
‘spousal benefit’ but rather because the obligation
to
support
was
assumed in a relationship akin to a family relationship
[26],
[39]
25.
Bertelsmann J in Metiso v Padongeluksfonds 2001(3) SA 1142 (T)
addressed a claim against the RAF arising from the death an uncle
of
ccrtain children who he had supported. After their father died and
their mother had deserted them, A formal adoption according
to the
custom of the community had not occurred because the consent of the
absent mother was a prerequisite and she was unreachable.
It was
contended on behalf the children that the uncle had agreed to
maintain them. The court resolved the problem by two finding.
First,
that a de facto adoption should be acknowledged and that the formal
defects be overlooked and, secondly, that a binding
offer to support
the children was sufficient to ground a duty of support because to do
so was consistent with the morality of society.(at
1150G- H). In MB v
NB
2010 (3) SA 220
(GSJ), Brassey AJ dealt with whether or not after
a divorce
an
ex-husband
had a duty of support towards the children of his former wife, who
had been widowed. During the marriage the ex-husband
had related the
children as a father. At issue was whether he was obliged to continue
to contribute to the payment of the school
fees of the children. At
[22] Brassey AJ took the view that it was unnecessary to construe a
quasi-adoption because it was sufficient
that by making the promise
to pay the husband was bound.
The law
applicable to the present case
26. It seems to me
that these cases demonstrate that the common law has been developed
to recognise that a duty of support can arise,
in a given case, from
the fact-specific circumstances of a proven relationship from which
it is shown that a binding duty of support
was assumed by one person
in favour of another. Moreover, a culturally imbedded notion
of'family/ constituted as being a network
of relationships of
reciprocal nurture and support, informs the common law’s
appetite to embrace» as worthy of protection,
the assumption of
duties of support and the reciprocal right to claim support, by
persons who are in relationships akin to that
of a family. This norm
is not parochial, but rather* is likely to be universal; it certainly
is consonant both with norms derived
from the Roman-Dutch tradition,
as alluded to by Cachalia JA in Paixao v RAF (Supra) and, no less,
from norms derived from African
tradition, not least of all, as
exemplified by the spirit of Ubuntu, as mentioned by Dlodlo J in Fosi
v RAF (Supra),
27. In the case of
V[...] T[...], although D[...], her biological father, surrendered
his status of legal parent, he surrendered
it to his own parents,
with her interests at heart, and continued to relate to her as a
father, by his presence, and by his financial
contribution to her
maintenance. He did not repudiate her. His support towards her was
seamless, and was divided into two periods
only by the intervention
of the abstract dictate of the law which made his parents her parents
in his stead. On the evidence adduced,
there was never a moment when
the assumption of, or the performance of, the role as her
support-giver ceased.
28. Given this
history, it might, understandably, be asked whether D[...] and his
parents would have accepted the default position
delineated by
Section 242(1)
of the
Childrens’ Act had
they been advised in
2009 (three years before Verheem v RAF was decided) that a variation
was possible? Any answer would be mere
speculation. Nonetheless, the
mere fact of its possibility is illustrative of what can be
sanctioned by law in acknowledgement
of the existence of given
relationships, and what, therefore can be considered worthy of
protection.
29. Are these
circumstances in which V[...] has a claim worthy of protection by
law? The answer, in my view, is to borrow and adapt
the remarks of
Grogan AJ, cited above: ic, it would in my view be invidious were
this court to rule that a natural parent had no
duty to support his
daughter when he had voluntarily assumed that obligation. In my view
this undertaking gave the plaintiff a
reasonable expectation that
D[...]’s maintenance contributions would continue, A duty of
support between de facto family
members is one of those areas in
which the law gives expression to the moral views of society.
30. The common law
ought to be developed to embrace this norm and the order in this
matter serves to do so.
The order
31. An order is made
as follows:
31.1. It is declared
that the Deceased, D[...] Cornelius T[...], by assuming an obligation
to support V[...] Talaard conferred on
her an enforceable right in
respect of a duly of support
3.1 .2, The
Defendant is liable to compensate the plaintiff in respect of the
loss of support suffered by the death of D[...] Cornelius
T[...] and
shall pay to the plaintiff the sum of damages agreed between the
parties.
31.3. The costs of
the trial shall be borne by the defendant,
31.4. In the event
that the parties require an amplified order to address other aspects
of the case upon which agreement has been
reached, an approach may be
made to me to do so.
ROLAND SUTHERLAND
Judge of the High
Court of South Africa,
Gauteng Local
Division
Hearing: 26 August
2014.
Judgment 26
September 2014.
For
Plaintiff; Adv R Maxwell
Instructed
by: Faber & Allin Inc
For
Defendant: Adv M M Zondi
Instructed
by: Moloto Stofile Inc