Summary of Judgment

1. Introduction

The proceedings concerned a civil damages claim for loss of support arising from a fatal motor vehicle collision. The plaintiff, Fundiswa Rigina Ngqondela, instituted action in her personal capacity as the widow of the deceased, Mongameli Jackson Ngqondela, who died in a collision on 2 May 2004 at KwaNobuhle, Uitenhage, within the jurisdiction of the Eastern Cape High Court (Port Elizabeth). The defendant was the Road Accident Fund, a statutory juristic person established under the Road Accident Fund Act 56 of 1996.

The procedural posture at trial was that liability for the insured driver’s negligence was admitted by the defendant. As a result, the merits relating to fault and causation of the deceased’s death were not in dispute, and the court was required to determine only issues relating to quantum and, more specifically, the deceased’s means and ability to provide support.

The general subject-matter of the dispute was the quantification of damages in a loss of support claim, in circumstances where the deceased’s post-retrenchment income was derived from an informal passenger transport activity (an unlicensed “jikeleza” taxi operation), raising questions about proof of earnings and the basis upon which support could be assessed.

2. Material Facts

It was common cause that the deceased was married to the plaintiff in community of property, that during his lifetime the deceased was legally obliged to maintain and support the plaintiff, and that he in fact contributed to her maintenance and support. It was also common cause that the collision resulted in the deceased’s death, and that the defendant had conceded liability arising from the negligent driving of the insured driver, thereby removing any need for a determination on the merits.

The dispute concerned the deceased’s financial circumstances at the time of death and how his ability to support the plaintiff should be assessed. Evidence accepted by the court established that the deceased had previously been employed at Volkswagen (SA) from 1978 until 2000, when he was retrenched, and that his weekly salary at Volkswagen had been approximately R750 per week. After retrenchment, the deceased pursued an income through the informal transport industry by acquiring a used Opel Kadett and operating it as an informal township taxi (“jikeleza”), used to transport passengers in and around township areas.

The evidence further indicated that the deceased did not personally drive the vehicle but employed a driver, remunerated at 10% of daily takings, and that the takings varied, with an average said to be approximately R100 per day. The vehicle operated on weekdays and, while it experienced breakdowns in the later period before the deceased’s death, it continued to operate. After the deceased’s death, the vehicle was sold to a scrapyard.

The plaintiff relied on the evidence of two witnesses—one a close friend and neighbour of the deceased, and the other the deceased’s daughter—who described the deceased as a consistent provider, and confirmed both the existence of the informal taxi operation and that the deceased’s support of the household ceased upon his death. The court expressly assessed both witnesses as credible and accepted their evidence as reliable.

For quantification purposes, an actuarial certificate by Dr Robert Koch was handed in by agreement. That certificate set out the net required support as R129 104.00, which the court treated as helpful in determining the quantum of loss.

3. Legal Issues

The central legal questions were, first, how the court should determine and quantify the plaintiff’s loss of support given that liability was conceded, and second, whether the deceased, at the time of his death, had the means and ability to provide support, and if so, to what extent. These questions required the court to address the adequacy of proof regarding the deceased’s earning capacity in circumstances where his income arose from informal, unlicensed passenger conveyancing, rather than formal documented employment.

The dispute primarily concerned the application of law to fact, in that the court had to apply established principles governing the assessment of damages (including evidentiary sufficiency and the use of actuarial or globular assessments) to the factual question of what the deceased likely earned or was capable of earning, and thus what support the plaintiff likely lost. It also involved a measure of value judgment and discretion typical in quantification of damages, particularly where precise calculation is difficult.

4. Court’s Reasoning

The court proceeded on the basis that the defendant’s admission of liability disposed of the merits, leaving only the assessment of damages and the deceased’s ability to provide support. It accepted as proven that the deceased had supported the plaintiff and that the plaintiff suffered a pecuniary loss as a result of the deceased’s death.

In dealing with the evidentiary position, the court placed weight on the credibility of the plaintiff’s witnesses, noting that both gave evidence calmly, were not uncertain, and testified to matters within their personal knowledge derived from long-standing relationships with the deceased. On that basis, the court accepted their testimony that the deceased had been a devoted provider, that he had been retrenched after long employment, and that he thereafter pursued income through the operation of an informal taxi business.

The court recognised that the deceased’s business was informal and that no specific licence had been issued by the authorities. In that context, the judgment referred to authority dealing with situations where earnings may not have been lawfully derived, and also to the principle that a court may still assess loss even where mathematical precision is not possible. The judgment cited the approach that, once pecuniary damage is clear but a strictly actuarial calculation cannot be made from the evidence, the court may award a fair and reasonable amount, even if it amounts to an informed estimate.

The court also relied on the principle that evidence of actual and potential earnings is often helpful to compute damages for loss of earning capacity, but that it is not invariably essential. In the present case, the court held that the deceased’s operation of an informal passenger conveyancing business, at a minimum, enabled the court to assess his earning capacity for purposes of a loss of support claim.

A significant component of the court’s reasoning was the use of the actuarial material placed before it. The actuarial certificate of Dr Koch was presented by agreement and was treated as a helpful basis for the quantum determination. The court did not embark on a further independent recalculation in the judgment, but accepted that the certificate set out the relevant quantum for net required support.

On the facts as accepted, and applying the legal approach permitting an award despite imperfect proof, the court concluded that the plaintiff’s loss was established and that the actuarial assessment provided an adequate quantification of damages.

5. Outcome and Relief

The court held that the claim succeeded and awarded the plaintiff damages in the amount of R129 104.00. The defendant was ordered to pay the plaintiff’s costs, including Dr Koch’s qualifying fees.

Cases Cited

Dhlamini v Multilateral 1992 (1) SA 802 (T)

Ander v Protea Assurance Co Ltd 1974 (4) SA 906 (A)

Santam Insurance Ltd v Ferguson 1985 (4) SA 843 (A)

Shield Insurance Co Ltd v Booysen 1979 (3) SA 953 (A)

Griffiths v Mutual & Federal Insurance Co Ltd [1993] ZASCA 121; 1994 (1) SA 535 (A)

Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A)

Roxa v Mtshayi 1975 (3) SA 761 (A)

Legislation Cited

Road Accident Fund Act 56 of 1996, section 2(1)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court found that, with liability conceded, the remaining dispute concerned whether the deceased had the means to provide support and the quantification of the plaintiff’s loss. On the evidence accepted as credible, the deceased was a provider who generated income through an informal passenger transport operation, which was sufficient to allow an assessment of his earning capacity. Relying on the actuarial certificate presented by agreement, the court awarded the plaintiff R129 104.00 for loss of support and ordered the defendant to pay costs, including the actuary’s qualifying fees.

LEGAL PRINCIPLES

A plaintiff in a loss of support claim must establish that she suffered pecuniary loss as a result of the deceased’s death and that the deceased had provided support which has been lost. Where liability is conceded, the court’s task is confined to determining the deceased’s ability to support and the proper quantification of damages.

Where there is insufficient evidence to permit a strictly mathematical or actuarial computation, a court may nevertheless make an award of a fair and reasonable amount once pecuniary loss is shown, even if the assessment is necessarily an informed estimate rather than a precise calculation.

Evidence of probable actual earnings and potential earnings is often helpful in assessing damages for loss of earning capacity, but it is not invariably essential; a court may assess earning capacity from the nature of the deceased’s activities and the available evidence, including where the deceased conducted an informal business.

An agreed actuarial certificate may provide a sufficient basis for quantification where it is relevant and assists the court in setting the quantum of the plaintiff’s loss, and the court may incorporate such agreed actuarial assessment into the final award.