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[2015] ZAGPJHC 144
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Zenobia v Road Accident Fund (2013/03860) [2015] ZAGPJHC 144 (23 July 2015)
REPUBLIC OF SOUTH
AFRICA
HIGH COURT OF SOUTH
AFRICA, GAUTENG LOCAL DIVISION
CASE NO: 2013/03860
DATE: 23 JULY 2015
In the matter between:
ZENOBIA NATASHA
ENGELA
................................................................................................
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, Tiago
Barreiro De Villiers (hereinafter
“Tiago”) and Orson Jason Engela (hereinafter “Orson”),
as a result of
the death of Gerald James Engela (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
Orson, the only issue for determination
is to decide whether or not
the deceased who was not the biological father of Tiago 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
Orson 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, Tiago, who was born on 24
October 2001. The Plaintiff and Tiago
lived together with the
deceased until their short-lived separation after divorce in 2010. On
12 February 2008, Orson 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 Tiago 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 Tiago 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 Tiago as his own child. That
commitment, in my opinion,
is not different to his promise to look
after the family, Tiago 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
Tiago as his own child. Accordingly, the
Plaintiff has, on a balance of probabilities demonstrated that the
deceased owed Tiago
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 Tiago and Orson, an
amount of R1 258 293.00 made up as
follows:
1.1 R799 894.00 for Orson; 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: 23
JULY 2015