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[2015] ZAGPJHC 149
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Tutubala v Road Accident Fund (2014/34463) [2015] ZAGPJHC 149 (23 July 2015)
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
CASE
NO: 2014/34463
In
the matter between:
JERMIMAH
TUTUBALA
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
J
U D G M E N T
MASHILE
J:
[1]
Thato Christian Tutubala (hereinafter “the deceased”) was
fatally injured in a motor vehicle collision on 8 June
2013.
This is an action in which the Plaintiff, the mother of the deceased,
in her personal capacity sues the Defendant in
terms of the
Road
Accident Fund Act No. 56 of 1996
for damages for loss of support
sustained by her as a result of the death of the deceased.
[2]
The matter
therefore involves the determination of the indigence of the
Plaintiff as a parent of the deceased. If indigent, this
court must
decide whether the deceased owed her a legal duty of support at the
time of his death. If the answer to both questions
is in the
affirmative, the court must then proceed to assess and make an
appropriate award to the Plaintiff.
[3]
The matter
came before this court with a concession of merits by the Defendant
and an arrangement that it would be liable for 100%
of the
Plaintiff’s proven damages. The Plaintiff’s success to do
so would be dependent on whether she is able to demonstrate
on a
balance of probabilities that she was indigent and was therefore
legally entitled to receive financial support for the basic
necessities of life from the deceased.
[4]
The
Plaintiff was the only witness who testified and her evidence largely
accords with the common cause background facts from which
this matter
emanated, which is that:
4.1
She will be turning […..] in November this year. She resides
in a house that she
formerly rented from the old municipality under
the apartheid system. Registration of transfer of the property
has since
been effected into her name. She lived in the house
together with the deceased, her divorced daughter and two
grandchildren. She
continues to house her daughter and the two
grandchildren to date;
4.2
She lost her formal employment with the Department of Education in
1999 and to date remains
unemployed. After leaving formal employment,
she worked as a hawker selling food and other items from home. In
consequence of severe
competition, she ceased all operations of her
informal business in 2010;
4.3
In late 2010, she became eligible to receive old age pension for
which she applied and received
in early 2011. Her initial old pension
amount has since soared to the present R1 350.00;
4.4 She testified
that she requires roughly R1 850.00 per month, which amount is made
up as follows:
4.4.1
Approximately R350.00 for rates and water;
4.4.2
R450.00 for electricity;
4.4.3
R800.00 for food and
4.4.4
R250.00 for clothing.
4.4
At the time
of his death, the deceased was employed as a corporal in the South
African National Defense Force earning a gross amount
of R15 901.50
per month. His net salary amounted in all to R11 219.73 from
which he contributed R2 500.00 per month
to the Plaintiff;
4.5
It was not
contested that the amount of R2 500.00 was for the deceased’s
rental, food and services he received whilst residing
with the
Plaintiff.
4.6
The
Plaintiff received in excess of R200 000.00 as an inheritance
from the deceased estate. Of the aforesaid amount, she invested
R150
000.00 from which she earns an interest amount of R600.00 per month.
[5]
The
Defendant challenges the Plaintiff’s claim of indigence and in
the event that the court finds that she is indigent, it
contends that
the Plaintiff is able to meet the costs of her necessities of life,
which it argues, amount to no more than R500.00
per month. That
amount is constituted by the difference between R1 850.00 per
month and R1 350.00 that she receives
as an old age pension.
[6]
The
Plaintiff on the other hand has relied on
Section 1(1)
and (2) of the
Assessment of Damages Act 9 of 1969
, which provides:
“
1
Insurance moneys, pensions and certain benefits not to be taken into
account in the assessment of damages for loss of support
(1)
When in any action, the cause of which arose after the commencement
of
this Act, damages are assessed for loss of support as a result of
a person's death, no insurance money, pension or benefit which
has
been or will or may be paid as a result of the death, shall be taken
into account.
(2)
For the purposes of subsection (1)-
'benefit'
means
any payment by a friendly society or trade union for the relief or
maintenance of a member's dependents;
'insurance money'
includes a refund of premiums and any
payment of interest on such premiums;
'pension'
includes
a refund of contributions and any payment of interest on such
contributions, and also any payment of a gratuity or other
lump sum
by a pension or provident fund or by an employer in respect of a
person's employment.”
[7]
His
submission is that the R200 000.00 that the Plaintiff inherited from
the estate of the deceased constitutes the proceeds of
a retirement
annuity which cannot be taken into account when evaluating her
income. Any interest income derived from the amount
invested by the
Plaintiff similarly cannot be considered.
[8]
The above
argument is in justification of the exclusion of the amount of
R600.00 from the Plaintiff’s income, which she testified
she
earns from the R150 000.00 that she has invested. I will return
to this argument later in this judgment.
[9]
It is trite
that children generally have a legal duty to support their indigent
parents. That general principle is not without qualification
though.
The parent concerned must not only show that she or he received aid
but must in addition allege and prove that the person
from whom
support is claimed has a legal duty to do so because a need exists.
See
Oosthuizen
v Stanley
1938 AD 322
.
[10]
Defendant’s
Counsel referred this court to the case of
Smith
v Mutual & Federal Insurance Co Ltd
1998 (4) SA 626
(C) where the court referred to the
Oosthuizen
case
supra
and stated that in order to prove indigence, a stringent criterion of
need has to be established.
[11]
When the
Smith
case
supra
held as it did, it was following in the footsteps of
Volkenborn
v Volkenborn
1946 NPD 76where
the court held that parents must exhaust all their
capital resources before looking to their children. Of great
significance is
the court’s pronouncement that a parent who
owns immovable property may be illiquid but is not indigent.
[12]
It is also
instructive to refer to the unreported case of
Fosi
v Road Accident Fund
Case No. 1934/2005 ECD delivered on 21 February 2007 where the court
drew from African Customary Law and stated with regard to
children’s
obligation to support their parents:
“…
customarily the child
who is financially able to do so, is under an obligation to maintain
his
needy
parent.”
[13]
No doubt
should exist that the deceased, as the Plaintiff’s son, would
have owed the Plaintiff a legal duty of support provided
the need for
him to do so existed. In all the cases to which I have referred
above, demonstration of need whether in customary
law or not is
significant and required. Thus, Dlodlo J’s statement quoted
above is consistent with the other cases in particular,
the Smith
case supra where it was said that in order to prove indigence a
stringent criterion of need must be established.
Customary law
in this respect is therefore no different from common law.
[14]
The
Plaintiff’s Counsel referred this court to the matter of
Wigham v
British Traders Insurance Co Ltd
1963
(3) SA 151
(W) where this court held that:
“
[I]n order to succeed a
plaintiff is not required to show that she would be reduced to abject
poverty or starvation and be a fit
candidate for admission to a poor
house unless she received a contribution. The Court must have
regard to her status in life,
to what she has been used to in the
past and the comforts, conveniences and advantages to which she has
been accustomed…
The
aim and object is to place the dependents in as good as position as
regards maintenance as they would have been if the deceased
had not
been killed, to which end material losses as well as benefits and
other prospects must be considered
.”
[15]
The
correctness of the
Wigham
case
supra
cannot be doubted. The statement does not, however, suggest
that the establishment of need is dispensed with. If a
particular parent was accustomed to a life of superfluity prior to
the death of a child, the parent will still be expected
and
required to prove the existence of need post the death.
[16]
The
evidence of the Plaintiff is that both prior and after the deceased’s
demise, she required R1 850.00 per month for her
own support and that
of the other members of her family being her daughter and two
grandchildren. She receives R1 350.00
plus R600.00 per month.
She is over what she needs on monthly basis by an amount of R100.00.
She does not therefore
need any additional financial support
according to her own testimony.
[17]
While on
this I might as well address the Plaintiff’s argument
pertaining to the monthly interest of R600.00 that she earns.
Plaintiff’s Counsel submitted that the court should not take
this into account because it stems from a retirement annuity
that
accrued to the deceased’s estate, which the Plaintiff inherited
and invested. This assertion should be disregarded
because, as
Counsel for the Defendant pointed out, no evidence was led to
establish that the amount was a retirement annuity and
therefore not
to be taken into account when assessing the Plaintiff’s income
as per
Section 1
of the
Assessment of Damages Act No. 9 of 1969
.
[18]
Plaintiff’s
Counsel also made reference to the matter of
Khan
and Another v Padayachy
1971 (3) SA 877
(W)
.
He believes that the facts in the
Kahn
case
supra
are very similar to this case. I disagree because the conclusion was
that the parents and their sickly daughter were indigent and
they
needed support from the deceased. I have just demonstrated above that
the Plaintiff’s income is more than what she needs
by R100.00.
Another distinguishing feature is of course that the sister of the
deceased was sickly and unable to work. This is
not the situation in
this case because the evidence is that the Plaintiff’s daughter
is healthy and fit and does from time
to time obtain transient work.
[19]
In the
circumstances the Plaintiff has on a balance of probabilities failed
to show that she was indigent and received additional
income from the
deceased because she needed it. In the light of that finding,
the action cannot succeed and I make the following
order:
1.
The claim
is dismissed with costs.
_____________________
B. A. MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Counsel for the
Plaintiff: Adv B. Anderson
Instructed by: Mokoduo
Inc
Counsel for the
Defendant: Adv N. Mayet-Beukes
Instructed by: Nozuko
Nxusani Incorporated
Trial proceedings took
place on 19 June 2015
Date of delivery of
Judgment: 23 July 2015