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[2015] ZAGPJHC 148
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E v Road Accident Fund (2013/03860) [2015] ZAGPJHC 148 (15 June 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
HIGH
COURT OF SOUTH AFRICA, GAUTENG LOCAL DIVISION
CASE
NO: 2013/03860
In
the matter between:
Z.
N.
E.
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
J
U D G M E N T
MASHILE
J
:
[1]
This is an action in which the Plaintiff
sues the Defendant for damages for loss of support sustained by her
two sons, T. B. D.
V. (hereinafter “T.”) and O. J. E.
(hereinafter “O.”), as a result of the death of G. J. E.
(hereinafter
“the deceased”) who was involved in a motor
vehicle collision on 18 March 2011 and later died because of injuries
suffered
during the crash on 30 March 2011.
[2]
It having been agreed that the deceased at
the time of his death owed a legal duty of support to O., the only
issue for determination
is to decide whether or not the deceased who
was not the biological father of T. owed him such duty of support at
the time of his
death on 30 March 2011. Put differently, does
the legal principle founded in
Piaxão
and Another v Road Accident Fund
2012
(6) SA 377
(SCA) find application in this matter?
[3]
When the matter served before this court,
the Defendant had conceded merits and had agreed to be 100% liable
for the Plaintiff’s
proven damages. In addition to that
arrangement, the parties also confirmed that calculation of the
figures was not in dispute.
Thus, depending on the finding of
this court, the award will either be in respect of both minor
children or for the one minor child
alone.
[4]
To put the matter in its proper
perspective, it is important to give an account of the background
facts, which are largely common
cause. The deceased and the
Plaintiff met in 2004 and married two years later on 11 March 2006.
In or around March
2010, they divorced and the deceased moved out for
a month to live with his mother. The divorce decree provided for a
maintenance
order of O. in the amount of R1 500.00 per month to the
exclusion of the Plaintiff and Tiago.
[5]
The Plaintiff came into the marriage with
an illegitimate child, T., who was born on […….]. The
Plaintiff and T. lived
together with the deceased until their
short-lived separation after divorce in 2010. On 12 February 2008, O.
was born of the parties’
marriage.
[6]
After their monthlong separation, the
Plaintiff and the deceased reconciled. They, together with both minor
children, resumed their
stay under the same roof until the deceased’s
death on 30 March 2011. During their second stay together, there
existed no
express arrangement between the deceased and the Plaintiff
that the former would support the plaintiff and Tiago.
[7]
The deceased and the Plaintiff nonetheless
arranged to live as a family without entering into another marriage
relationship. While
they were living together as husband and wife, no
thought was ever given to what would transpire in the event of a
recurrence of
problems in their future relationship.
[8]
The evidence of the Plaintiff did not
depart much from the above common cause facts. Her cross-examination
did not accomplish or
achieve anything of significance that can sway
the outcome hereof one way or the other. That said, it is indubitable
that The
Paixão
case
supra
has advanced the common law such that the dependants' action now
encompasses permanent heterosexual relationships.
[9]
The Defendant has contended that while the
legal principle established by the
Paixão
case
supra
is clear, the facts in this instant case are distinguishable.
Accordingly, Counsel for the Defendant implored this court not to
extend the principle to apply here. The Defendant sought to make a
distinction between this case and the
Paixão
case
supra
on the following basis:
9.1
In the four years during which the plaintiff and the deceased were
married, they did not
expressly or tacitly agree that the
deceased would support T. beyond dissolution of their marriage,
whether by death or otherwise.
If there was such an agreement,
so argued the Defendant, it would be anomalous why this was not
assimilated into the Divorce Order;
9.2
The Plaintiff’s claim that she and the Plaintiff together with
the minor children
lived as a family is not supported by other
independent facts as was the case in the Piaxao case. In this
regard the Defendant
pointed out to the fact that there was no joint
will drawn up as was the case in
Paixão
;
9.3
It should be inferred from the divorce of the Plaintiff and the
deceased that they intentionally
chose not to be bound by the thrills
and frills of the marriage relationship, including the reciprocal
duty of support;
9.4
There is no evidence that the deceased tacitly accepted that he and /
or his estate would
continue to support T. beyond any possible
termination of their marriage. As a matter of fact, there is no
evidence that
they ever gave this eventuality any thought. However,
if anything, the contrary is true as it is known that on a previous
occasion
when the deceased was getting divorced from the plaintiff,
he did not offer to continue to support Tiago.
[10]
The Plaintiff has fervently asserted that
the agreed facts and the totality of the evidence tendered
demonstrate that she has successfully
discharged the onus of proving
on a balance of probabilities that there existed a tacit agreement to
support Tiago. Such an agreement,
maintains the Plaintiff, can be
inferred from the surrounding circumstances and the conduct of the
parties creating a binding contractual
obligation upon the deceased
to support and maintain Tiago, which he in fact did during his
lifetime.
[11]
There are apparent differences between the
facts of the
Paixão
case and the case in
casu
.
For example, the parties specifically agreed not to conclude another
marriage relationship when they reconciled but nonetheless
committed
to live together as the deceased thought a marriage certificate was
worthless anyway. In the
Paixão
case, the converse is true in that the deceased promised to enter
into a marriage relationship as soon as he had divorced from
his
wife. The parties in
Paixão
case drew a joint will whereas those in the current case did not.
[12]
Underlying the agreements in both these
cases is a mutual commitment of the parties to live together as a
family. It is irrelevant
whether the one agreement is governed
by a marriage certificate while the other is not. From the
deceased and the Plaintiff’s
marriage in 2006 emerged the
latter’s commitment to support and treat T. as his own child.
That commitment, in my opinion,
is not different to his
promise to look after the family, T. included, post the divorce.
[13]
By agreeing to reconcile with the deceased
and to resume the life that they led prior to their separation, the
Plaintiff also committed
to be bound by the terms and conditions that
governed their relationship before the divorce being that of the
support of house
wife to her husband. The relationship that ensued
was unquestionably akin to marriage. There existed therefore
reciprocal undertakings
to support each other between the parties.
Contrary to the Defendant’s belief, it can be inferred that the
plaintiff and
the defendant opted to be bound by the ‘thrills
and frills’ of the marriage relationship albeit without a
marriage
certificate.
[14]
I agree that the
Paixão
case is no precedent of the assertion that the duty of support will
only arise under circumstances where the deceased has during
his
lifetime made an undertaking to support an illegitimate child beyond
the dissolution of a marriage. Thus, the non-existence
of such an
agreement should not affect the deceased’s legal duty to
financially support Tiago.
[15]
In the result, the facts presented warrant
a conclusion that there existed a tacit agreement that the deceased
would support T.
as his own child. Accordingly, the Plaintiff
has, on a balance of probabilities demonstrated that the deceased
owed T. a
legal duty of support as at the date of his demise.
The development of the common law to extend the dependants’
action
to cover permanent, heterosexual relationships is therefore
applicable to this case.
[16]
Against that background, I make the
following order:
1.
The Defendant is to pay to the Plaintiff,
in her representative capacity as mother and natural guardian of T.
and O., an amount
of R1 258 293.00 made up as follows:
1.1
R799 894.00 for O.; and
1.2
R458 399.00 for Tiago.
1.3
Defendant to pay the costs of the Plaintiff
including those of senior counsel.
______________________
B.
A. MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Counsel
for the Plaintiff: Adv Chaitowitz SC
Instructed
by: De Broglio Inc
Counsel
for the Defendant: Mr L. Adams (Attorney)
Instructed
by: Lindsay Keller Attorneys
Trial
proceedings took place on 15 June 2015
Date
of delivery of Judgment: