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[2015] ZAGPJHC 76
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Leask and Another v Road Accident Fund (33281/2013) [2015] ZAGPJHC 76; 2015 (5) SA 20 (GJ) (30 April 2015)
FLYNOTES:
ACTUARIAL – Loss of support – Parents of deceased –
Plaintiffs contending that deceased was contributing
each month
prior to and at time of death – Lack of documentary proof of
deceased’s pay – Failing to adduce
sufficient evidence
that the deceased was gainfully employed and earning claimed
salary and that he would have continued
to do so for the duration
of their lives – Failing to show that the deceased was in a
financial position to support
them – Absolution from the
instance granted.
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 33281/2013
In the matter between:
LEASK,
JACOBA ALBERTINA
First
Plaintiff
DE
BEER, WILHELM STEPHANUS
Second
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
WEINER
J
:
Introduction
[1]
Zacharias Jakobus De Beer (“the deceased”) died as a
result of a motor vehicle
collision which occurred in Heidelberg on
the 7
th
April 2013. The defendant admitted the
negligence of the insured driver and conceded liability in respect of
the merits.
Introduction
[2]
The plaintiffs are the biological parents of the deceased. They
both instituted action
against the defendant for loss of support.
Their claim is based on their allegation that the deceased supported
them from the time
that he was employed until he died and that he
would have continued to do so, but for his death. The
plaintiffs further contend
that the deceased supported them by giving
them R10 000 per month at the time of his death and for a
considerable period of time
before his death. The defendant
denies the fact that the deceased supported the plaintiffs at all and
denies further that
the deceased owed the plaintiff a duty of
support. Defendant claims that the plaintiffs are not indigent.
The Background
Circumstances
[3]
The plaintiffs have been living together for approximately 35 years.
From such relationship
three children were born a son (the deceased)
and two daughters Edna and Angelique.
[4]
The Second plaintiff gave evidence that he previously worked as a
truck driver until 1989
when he fell ill at the age of 35. He
had completed school up to Standard 6. Although his evidence
was not very clear,
he described his illness as being concerned with
cancer and that he suffered two heart attacks thereafter. He
applied for
an old age pension when he recently turned 60 and
receives same.
[5]
The first plaintiff was apparently involved in a collision when she
was a child. She completed
school up to Standard 2 and has been on a
disability grant from the age of 8. She suffers from a mental
condition which renders
her incapable of securing employment.
[6]
According to the second plaintiff he presently receives a pension of
R1 410 as does the
first plaintiff. Their total income is accordingly
R2 820 a month.
[7]
The second plaintiff’s evidence was not entirely clear but what
can be gauged therefrom
is that the parties lived in different rented
accommodation over the years. In addition, all three children lived
with them over
the many years that they were living only on the first
plaintiff’s disability pension.
[8]
They initially stayed in Heidelberg in a house owned by an uncle
who
had died
that year, as a result of which they did not pay any rent. They lived
there until 1999. They thereafter moved to Jamieson
Park, where they
paid approximately R680 per month and lived there until 2005.
At certain times the second plaintiff’s
mother lived with them
and her pension was also used to support the two plaintiffs, the
second plaintiff’s mother and the
three children. They moved to
Nigel where they stayed until 2009. According to the second
plaintiff, the house belonged to his
sister’s son-in-law and he
did not charge them rent. In 2009, they moved to a farm where
the rent was allegedly R4
000 per month plus R1 000 for electricity.
Although the second plaintiff claims that he was getting R10 000 per
month from the
deceased, his evidence appears to suggest that they
never paid the R4 000 per month as rent and have always been in
“arrears”.
A friend of his one Du Plessis is the owner
and seems to be content with receiving R500 per month as payments on
arrear rental.
[9]
Angelique who is presently 31 years old has, according to the second
plaintiff never worked
(save for a period of about 8 months).
She passed Standard 8 and there appears to be no valid reason why she
has not worked.
The second plaintiff believed that the deceased
started working in 2006 and was paying them R10 000 from the start.
It appeared
from the evidence of the deceased’s employer (his
brother-in-law) André Jacobs, that he began work in 2008. The
second
plaintiff conceded that the deceased lived with them and paid
them,
inter alia
, a contribution towards his living expenses.
The first plaintiff did his washing and ironing. He ate
breakfast at home
and took lunch with him to work that was made at
home. He also ate dinner at home. The R10 000 that the deceased
contributed
was, according to the second plaintiff, used for all of
those staying in the house, that included the first and second
plaintiffs,
the deceased, his two sisters and three grandchildren.
The sister, Angelique, apparently got married in September 2014 but
still
lives with the plaintiffs. Her husband one Fourie is
self-employed and, according to the second plaintiff, he contributes
about R300 per week when he can.
[10]
Accordingly the parties appeared to be living, until 2008 on the
first plaintiff’s pension, occasionally
the second plaintiff’s
mother’s pension (when she stayed with them) and the
approximately R300 per week that was sometimes
paid by Fourie for
Angelique and the three children.
[11]
Somehow the family managed to survive on this. This is the basis upon
which the defendant claims that the
first and second plaintiffs are
not indigent in that they were able to survive on much less than
R2820 for many years.
[12]
According to the second plaintiff the deceased left school in
Standard 6 at the age of 18. He had
failed school for many
years. For two years, he did not work but stayed with another person
in Vereeniging.
[13]
Their second daughter, Edna, got married five years ago to Jacobs and
they had two children now aged 5 and
2. She passed away in 2014 as a
result of an allergic reaction to a bee sting. The second plaintiff
gave evidence that the deceased
worked for Jacobs. He was unable to
testify precisely when he started working there or what he did.
[14]
The plaintiffs’ expenses to which the R10 000 was apparently
contributed, included the rent (R4 000),
electricity (R1 000),
food and clothing (R2 500) for the plaintiffs, Angelique and her
three children and the deceased.
The second plaintiff concluded his
evidence by stating that he was unable to exist simply on the two
pensions.
[15]
Jacobs gave evidence that he was married to Edna, the deceased’s
sister in 2011. He met
the family in approximately 2008 when Edna was
working for him. She began working as a receptionist in his CC,
styled Merlin
Auto Glass CC (the CC) in Nigel. Later it moved to
Heidelberg. According to Jacobs, the deceased worked for him
from about
2008 or 2009. The reports completed by him for this
claim, which include the certificate of service in relation to the
deceased,
state that he was working for the CC from the 1
st
May 2008 until the 7
th
April 2013 and was earning R4 000
per week plus overtime at the rate of R100 per hour. These forms were
according, to Jacobs, filled
in by Edna and he signed the
certificate. He cannot recall whether these figures were ever
discussed with him. He stated that the
deceased was a fitter who
installed windscreens. He was trained by Jacobs and another fitter.
It is apparently not a complicated
process. According to Jacobs, the
standard salary for such an employee would be starting at R1500 per
week and then increasing
to approximately R2 500 to R3 000 per week.
The deceased started on the lower salary and received the amount of
R2 500 to
R3 000 per week after six months. It was decided by Edna
and Jacobs that in order to support her and the deceased’s
parents,
the CC would pay the deceased R20 000 a month so that he
could support their parents.
[16]
Edna apparently took over the running of the CC whilst Jacobs had
other obligations in Zimbabwe.
[17]
The amount paid to the deceased by the CC did not include tax
deductions and was paid in cash. He was not
registered for PAYE and
did not pay any tax. After Edna died, Jacobs closed the
business as he was not in a state to continue
running it.
[18]
Although Edna and Jacobs did not tell the deceased how much to
contribute towards the plaintiffs’
support, he apparently paid
half his salary ie R10000 per month to them. Jacobs conceded that
that the average salary for the deceased’s
experience was
R2 500 to R3 000 per week (with overtime). He was receiving R5
000 per week (with overtime). Accordingly at
least approximately
R8 000- R10 000 of his salary was paid by the CC, on Edna’s
instruction, in order for him to support
his parents.
[19]
Jacobs was unable to produce any documentation confirming the payment
to the deceased. There were no books
and records of the CC which he
could produce. He did however produce certain of his personal bank
statements which were not of
much assistance. Firstly, they contained
many deposits and withdrawals which he could not explain. Secondly,
he was involved in
a business in Zimbabwe and some of the payments
could be related to that business. Cash monies were deposited and
then withdrawn
almost immediately as a result of which the debit
orders on the account were not paid. Accordingly there was no
documentary evidence
to substantiate in any way, the averments that
the deceased was in gainful employment.
[20]
The CC also did not pay tax nor was it registered to do so. In
addition, the CC was not registered for VAT
and no VAT was ever paid.
Jacobs also gave evidence that all the purchases for the products
such as windscreens etc were made in
cash and payments to employees
were made in cash. There is no means by which this court is able to
ascertain whether the CC was
in a financial position to pay the
deceased R20 000 per month.
[21]
From the above evidence what appears is the following:
[21.1] In 2008 when
the deceased commenced working he was only earning R1 500 per week.
Accordingly, he would not have been
giving the plaintiffs R10 000 per
month as testified to by the second plaintiff;
[21.2] The salary
paid to the deceased was arranged by Jacobs and Edna (partially as
her contribution to the support of her
parents). The deceased earned
a much higher salary than he would have received, had he not been a
family member, assisting to support
their parents;
[21.3]
Approximately R8 000 to R10 000 was the amount that he was
overpaid per month. In reality, it was Edna who
was supporting
her parents and not the deceased. The deceased contributed towards
his own living expenses, as he continued to live
in the house and eat
the food and have his laundry done by the first plaintiff;
[21.4] From the R10
000 the plaintiffs allegedly received from the deceased, the second
plaintiff supported the entire family
including Angelique and her
children. It appears that the amount Angelique receives from the
fathers of the children is minimal
and inconsistent;
[21.5] The deceased
did not have a duty to support his sister, Angelique and her
children, as she was capable of working;
[21.6] Until the
deceased started working, the plaintiffs appeared to support the
entire family of five or six people on the
pension of the first
plaintiff which in 1996 was the amount of R430 per month. It
increased over the years. By 2008 when the deceased
began working,
the pension that the plaintiffs and the extended family were living
on amounted to R960 per month. It was only in
2014 that the second
plaintiff began receiving his pension of R1 410;
[21.7] It cannot be
accepted that the rental that the plaintiffs are obliged to pay is R4
000 per month plus electricity of R1 000
when they are only paying
R500 per month which according to the second plaintiff is repayment
of the arrears. Their expenses bear
no resemblance to reality;
[21.8] If anyone
was contributing to the plaintiffs support, it was Edna through the
CC. According to Jacobs she was drawing
R40 000 per month.
[22]
The actuary employed by Jacobson Actuaries, one Ryan Imerman
(“Imerman”) gave evidence in regard
to the actuarial
report filed in support of the plaintiffs’ claim. The
assumptions on which Imerman based his opinion
are that the deceased
was earning R20 000 per month and that in terms of the normal
distribution he would be entitled to 50% of
his salary and each of
his parents 25% each. The way in which the life tables were used
assumes, according to the evidence, that
the second plaintiff would
have been supported by the deceased until he turned 97 and the first
plaintiff turned 87 or until the
deceased turned 65. However the
reality is that Edna died in 2014, and the CC ceased operating. The
deceased would have been unemployed
by 2014.
Indigence
[23]
The Defendant’s counsel referred to the case
of
Smith
v Mutual & Federal Insurance Co Ltd
[1]
where
it was held that a stringent criterion of need has to be established
to prove indigence.
[24]
In
Oosthuizen
v Stanley
[2]
Tindall
JA at 327-328 concluded that:-
“
Support
includes not only food and clothing in accordance with the quality
and condition of the person to be supported by also lodging
and care
in sickness … Whether a parent is in such a state of
comparative indigency or destitution that a court of
law can compel a
child to supplement the parent’s income is a question of fact
depending on the circumstances of each case.
”
[25]
Whilst it is correct that the defendant is unable to contradict the
evidence of second plaintiff
and Jacobs, the court is not obliged to
accept such evidence as necessarily true. The court’s findings
are based upon the
demeanour of the witnesses and the probabilities
of the matter. See
Smith
supra
.
[3]
[26]
In
Singh
v Santam Insurance Co
[4]
,
it was held that a court, in considering the plaintiff’s
financial position, must consider his needs as well as those of
his
wife and children living with him (presumably those to whom he owes a
duty of support)
[27]
At best for the plaintiffs and based upon the paucity and vagueness
of the evidence:
[27.1] Taking into
account their reasonable necessities of life, it is arguable that
living only on their pensions would have placed
them in the position
of being indigent. For the reasons set out below it is not necessary
to make a finding hereon;
[27.2] The alleged
amount paid to the plaintiffs of R10 000 was, if it existed, the
support provided by Edna, alternatively,
it would have ceased when
Edna died and the business closed, thus rendering the deceased
unemployed;
[27.3] The Plaintiff’s
did not attempt to demonstrate that the deceased would have obtained
other employment and/or income,
after the CC ceased operating.
[28]
The Plaintiffs have failed to adduce sufficient evidence that the
deceased was gainfully employed
and earning R20 000 per month,
and that the deceased would have continued to do so for the duration
of their lives. They have
failed to show that the deceased was in a
financial position to support them.
[29]
Accordingly the following order is made:-
1.
There
will be absolution from the instance;
2.
The
Plaintiffs’ are to pay the Defendants’ costs.
___________________
WEINER J
APPEARANCES:
For Plaintiff:
B. Ford
Instructed By:
Leon JJ Van Rensburg
For
Defendant:
A. I. Cajee
Instructed By:
Pule Incorporated
Date of
Hearing:
2 March 2015
Date
of Judgment:
[1]
1998
(4) SA 626 (C)
[2]
1938
AD 322
[3]
1998
(4) SA 626 (C)
[4]
1974(4)
SA 196 D