Buje v Road Accident Fund (3149/2019) [2021] ZAECPEHC 43 (17 August 2021)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2021
>>
[2021] ZAECPEHC 43
|

|

Buje v Road Accident Fund (3149/2019) [2021] ZAECPEHC 43 (17 August 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH
CASE NO. 3149/2019
In the matter
between:
SISANDA
BUJE
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
Bloem
J.
1.
This is a claim for compensation against
the Road Accident Fund (the Fund) for loss of support allegedly
sustained as a result of
the death of Tsepang Moleko (Mr Moleko or
the deceased) in a motor vehicle collision.  The plaintiff
contended that she and
Mr Moleko had been life partners.  She
accordingly sued in her personal capacity and her representative
capacity, on behalf
of her child who had, on 30 May 2010, been born
of her relationship with Mr Moleko.
2.
It is common cause that Mr Moleko was
killed in a collision on 30 July 2016, on the N2 freeway, just
outside Port Elizabeth, and that
his death was caused by the
negligent driving of the driver of the insured vehicle.  The
Fund admitted that the plaintiff has
locus
standi
to claim damages from it in her
representative capacity on behalf of her minor child, but disputed
her claim in her personal capacity.
By agreement between the
parties, it was ordered, at the commencement of the trial, that the
following issue be separated for determination
from the remaining
issues:
“
Whether,
prior to the death of Mr Moleko (the deceased), the plaintiff and the
deceased were permanent life-partners, in terms of
which relationship
the deceased had undertaken to maintain the plaintiff and had in fact
maintained her, and accordingly was under
a legal duty to provide the
plaintiff with maintenance and support, which would have continued in
the future had the deceased not
died in the collision herein
”
.
3.
The plaintiff testified that she met Mr
Moleko during 2007 when they lived in Port Elizabeth.  She
had completed a security
training course during 2007.  However,
she was unable to secure employment in Port Elizabeth and went to
Cape Town at the end
of January 2008 in search of employment.
Mr Moleko followed her during February of that year.  For the
rest of that year
the two of them lived together at her friend’s
house.  At the end of 2008 Mr Moleko secured permanent
employment at Alpha
Pharm East Cape (Pty) Ltd and, during the
following year, he purchased a dwelling, which was referred to in the
evidence as a shack,
and paid rental of R250.00 per month for the
site on which the shack was located.  They left her friend’s
house to live in
the shack where she gave birth to Mr Moleko’s
son during May 2010.
4.
During 2014 Mr Moleko’s mother fell ill.
Consequently, the plaintiff testified that he resigned from his
employment and returned
to Port Elizabeth.  Shortly thereafter,
during that same year, he was re-employed by the same employer, but
in Port Elizabeth.
It later emerged that her evidence in
this regard was wrong insofar as it had been suggested that he
resigned.  The true state
of affairs was that he had secured a
transfer from Cape Town to Port Elizabeth at Alpha Pharm East Cape
(Pty) Ltd.  While he
lived in Port Elizabeth he had sent
R1 000.00 per month to her for rental, food and clothing.
During November 2014 she
secured employment as a security guard.
Since then he only sent money to her when she made a request
therefor.  Shortly
before he died Mr Moleko had resigned from
his employment.
5.
The plaintiff testified further that Mr
Moleko had resigned because it had been his intention to return to
Cape Town to live with
her but, before he could do so, he first had
to sign for receipt of his last Unemployment Insurance Fund benefits
on 9 September
2016.  He had told her that he would marry
her during December 2016.  She attended Mr Moleko’s
funeral on 13 August
2016.  The plaintiff did not call other
witnesses.
6.
On behalf of the Fund Siphokazi Brown (Ms
Brown) testified that she had met Mr Moleko during or about July
2014 at Greenbushes,
Port Elizabeth and they had commenced a love
affair.  She used to go to the house which he shared with his
family and stayed
over, sometimes for a week.  She knew his
parents and sisters.  Her parents also knew Mr Moleko.  Her
father was strict,
but knew about her relationship with Mr Moleko,
who did not enter their home.
7.
Mr Moleko had told her that he was the
father of a child in Queenstown, and another one in Port Elizabeth,
and that he had terminated
his relationship with the children’s
respective mothers.  He told her that, while working in Cape
Town, he had lived with
the plaintiff, the mother of the boy who was
then living with him in Port Elizabeth.  He had resigned from
his employment because,
so he told her, he was going to work for the
Nelson Mandela Bay Municipality.  On receipt of the benefits due
to him as a result
of his resignation, she had accompanied him when
he purchased items, for example kitchen furniture which were
delivered at the house
which he shared with his family.  He had
told her that he wanted to leave the home of his family to live with
her.
8.
When Mr Moleko’s stepfather, the
biological father of his sisters, died during January 2016, the
family did not have sufficient
money to bury him.  Mr Moleko had
asked her to assist, and she obliged.  She was involved in the
same collision which claimed
Mr Moleko’s life.
9.
Lerato Rakaipe (Ms Rakaipe) is Mr Moleko’s
half-sister.  She testified that Mr Moleko had requested
his employer to be
transferred to Port Elizabeth when their mother
fell ill.  He returned during February 2014, after his request
had been granted.
Two weeks thereafter the plaintiff brought
their child to Port Elizabeth.  She arrived on a Friday and left
Port Elizabeth on
the following Monday.  While in Port
Elizabeth, the plaintiff shared a bedroom with her and her sister.
10.
She testified that, before the plaintiff
had met Mr Moleko, he had been in a relationship with a woman who had
given birth to his
child during 2006.  That child resides in
Queenstown.  After Mr Moleko’s return to Port Elizabeth during
2014, he had
started a love relationship with Ms Brown.  Ms
Rakaipe testified that the relationship between the plaintiff and Mr
Moleko was
over when she returned their child to him in February
2014.  Mr Moleko, to whom she was close, had told her that his
relationship
with the plaintiff was over.  When it was put to
her that they had had plans to marry, she said that she was unaware
of those
plans.
11.
Insofar
as it relates to this matter, section 17(1) of the Road Accident Fund
Act
[1]
provides that the Fund
shall compensate any person (the claimant) for any loss or damage
that he or she has suffered as a result
of the death of another
person, caused by or arising from the driving of a motor vehicle by
any person (the insured driver) if the
death was due to the
negligence or other wrongful act of the insured driver.
12.
The
plaintiff has instituted a dependant’s claim against the Fund.
That is a claim for damages for loss of support, instituted
by the
dependants of a breadwinner whose death was caused by the wrongful
and culpable conduct of the wrongdoer.  The remedy
is available
only to dependants to whom the deceased, while still alive, had owed
a legally enforceable duty to maintain and support.
The nature
of the remedy was described as follows in
Evins
v Shield Insurance Co Ltd
:
[2]
“
An
essential and unusual feature of the remedy is that, while the
defendant incurs liability because he has acted wrongfully and
negligently
(or with dolus) towards the deceased and thereby
caused the death of the deceased, the claimant (the dependant)
derives his
right of action not through the deceased or from his
estate but from the facts that he has been injured by the death of
the deceased
and that the defendant is in law responsible
therefor. Only a dependant to whom the deceased was under a legal
duty to provide
maintenance and support may sue and in such action
the dependant must establish actual patrimonial loss, accrued and
prospective,
as a consequence of the death of the breadwinner
.”
13.
It
appears that the remedy was initially only available to certain
relatives of a deceased who were dependent on him or her for their
support at the time of his or her death.  The spouse, children
and parents of the deceased fell into that category, provided
that
the deceased, while alive, owed them a legal duty of support.
That remedy has subsequently been extended to, for instance,
a
divorced woman;
[3]
a partner in
a same-sex life relationship;
[4]
a partner in a heterosexual relationship;
[5]
and the deceased’s aunt.
[6]
14.
In
terms of the common law a relationship between husband and wife,
child and parent and grandchild and grandparent gives rise to
a duty
of support.
[7]
This court
is required to determine whether a girlfriend, who does not fall
within the categories of relationships recognised
by the common law,
was owed a duty of support by a deceased alleged boyfriend.
Whether Mr Moleko owed the plaintiff a duty
of support is determined
by the
boni
mores
of society, the norms and values contained in the Constitution.
In this regard Cachalia JA had the following to say in
Paixᾶo
:
[8]
“
The
existence of a dependant’s right to claim support which is worthy
of the law’s protection, and the breadwinner’s correlative
duty
of support, is determined by the boni mores criterion or, as Rumpff
CJ in another context put it in Minister van Polisie v Ewels,
the
legal convictions of the community.  This is essentially a
judicial determination that a court must make after considering
the
interplay of several factors: ‘the hand of history, our ideas of
morals and justice, the convenience of administering the rule
and our
social ideas of where the loss should fall’.  In this regard
considerations of ‘equity and decency’ have always
been
important.  Underpinning all of this are constitutional norms
and values.  So the court is required to make a policy
decision
based on the recognition that social changes must be accompanied by
legal norms to encourage social responsibility.
By making the
boni mores the decisive factor in this determination, the dependants’
action has had the flexibility to adapt to
social changes and to
modern conditions
.” (authorities
omitted)
15.
The hand of history shows that our common
law has not recognised that a relationship between boyfriend and
girlfriend gives rise to
a reciprocal duty to support by the one to
the other.  Recently, our law has recognised and protected the
right to claim loss
of support of persons who are not married.
To enjoy that protection of the law, the nature of the relationship
must be akin
to a marriage relationship.
16.
The plaintiff’s case was that there had
been a tacit agreement between Mr Moleko and her in terms whereof he
would support her and
that that agreement had created a binding
obligation upon him to support her.  She also contended that the
nature of their relationship
had been akin to a marriage relationship
and accordingly deserves the protection of the law.  Mr Mthembu,
counsel for the defendant,
submitted that the plaintiff has failed to
demonstrate that Mr Moleko had agreed to support her or that their
relationship had been
akin to a marriage.
17.
In order to succeed in her claim against
the Fund, the plaintiff was required to show on a balance of
probabilities that before his
death, Mr Moleko, as breadwinner, had
owed her a legal duty of support; that the negligence of the insured
driver had caused his
death; that she has suffered, and will continue
to suffer harm or loss as a consequence of Mr Moleko’s death; and
that the Fund
is in law liable to compensate her for the loss or harm
that she has suffered and will suffer.  As pointed out above,
the Fund
admitted that the negligent driving of the insured driver
caused Mr Moleko’s death.
18.
It must be determined firstly, whether,
during his lifetime, Mr Moleko had been under a legally enforceable
duty to support the plaintiff;
and secondly, whether the nature of
their relationship had been akin to a marriage relationship,
deserving protection of the law.
19.
The undisputed facts are that they had been
in a love relationship since 2007.  They had been living
together in Cape Town since
February 2008.  Their son was born
during May 2010.  Since the end of 2008 when Mr Moleko secured
employment, he had bought
food and clothing, initially only for the
two of them, but also for their son after his birth, and he had paid
rental in respect
of the site on which the shack was located.  The
plaintiff had been unemployed when Mr Moleko returned to
Port Elizabeth
during February 2014.  Thereafter he had
sent the sum of R1 000.00 per month to the plaintiff to support her.
Their son
had lived with Mr Moleko in Port Elizabeth at the
time.  The plaintiff testified that, since November 2014, when
she had
secured employment, Mr Moleko sent money to her only upon
request from her.
20.
It was undisputed that, during February
2014, two weeks after Mr Moleko’s return to Port Elizabeth, the
plaintiff visited him to
return their child to him.  She visited
again during September or October 2015 to collect their son.
There was a dispute
as to whether the plaintiff again visited towards
the end of 2015 and the duration of those visits.  The
plaintiff’s contention
that Mr Moleko and his son had visited her
during 2014, and again during or around April 2016, was in dispute.
Ms Brown and
Ms Rakaipe said that they had no knowledge of Mr
Moleko’s alleged visits to Cape Town during 2014 and 2016.
They
both testified about trips that Mr Moleko had undertaken to
Queenstown to attend to “land claims business”.  He used to
leave on a Saturday morning and return the following day.  They
could recall a trip to Queenstown during or about April 2016,
because
on his return from Queenstown he had been in an accident near
Grahamstown.  They also testified that they would have
known
about it if Mr Moleko had undertaken trips to Cape Town.
21.
In my view, the probabilities do not
support a finding that Mr Moleko visited the plaintiff in Cape Town
during 2014 and 2016.
Had he done so, Ms Rakaipe would have
known about the 2014 trip and she and Ms Brown would have known about
the 2016 trip.
During 2016 he shared a home with Ms Rakaipe and
had a love relationship with Ms Brown.  He was accordingly in
their company
on a regular basis.  It was unnecessary for Mr
Moleko to have told them of a trip to the plaintiff.  The
parties agreed
that Port Elizabeth is about 700 km from Cape Town
which means that it takes at least eight hours to travel from the one
city to
the other, more if public transport is used.  They would
have known about Mr Moleko’s extended absence from Port Elizabeth
if he had visited the plaintiff in Cape Town.  In my view, their
version is more probable than the plaintiff’s.  Accordingly,
the only visits that require attention are the plaintiff’s visits
to Port Elizabeth during 2014 and 2015.
22.
Ms Rakaipe said that the plaintiff visited
Port Elizabeth during 2014.  Her evidence was that the purpose
of that visit, which,
as explained above, occurred two weeks after Mr
Moleko’s return to Port Elizabeth, was to bring their child to Mr
Moleko.
She said that the plaintiff had shared a bedroom with
them while Mr Moleko had shared the other bedroom with his son.
The plaintiff
initially testified that Mr Moleko left Cape Town with
their son when he returned to Port Elizabeth.  It was only when
she was
re-examined that she acknowledged that she was the one who
had brought their son to Port Elizabeth during 2014.
23.
The parties were agreed that the plaintiff
had visited Port Elizabeth during September/October 2015 to fetch
their child and to return
with him to Cape Town.  The plaintiff
said that she had made another visit to Port Elizabeth towards the
end of 2015, which
visit was for three weeks.  Throughout this
time, she said, the two of them had shared a bedroom.  It was
common cause
that Ms Brown had been in a relationship with him at
this stage.  When it was put to her that the plaintiff had been
in Port
Elizabeth for three weeks, she denied that.  She
testified, that she thought that the plaintiff had been in Port
Elizabeth for
a week.  Ms Rakaipe was emphatic in her denial
that the plaintiff had resided at her home for three weeks.  Her
evidence
was that she had stayed with them for about one weekend when
she fetched their child.
24.
The probabilities favour a finding that the
plaintiff had visited Port Elizabeth in 2014 and 2015 and that she
had resided in the
house with Mr Moleko and his family.  The
visit in 2014 was for no longer than a weekend while there was only
one visit in 2015
around September/October, which was probably for a
weekend, certainly not for more than a week.  In 2015 Mr Moleko
was involved
in a love affair with Ms Brown who testified that
she had no difficulty not visiting Mr Moleko’s home while the
plaintiff
was there because the plaintiff was after all the mother of
his son.  Mr Moleko had advised her that the plaintiff had
nowhere
to reside while in Port Elizabeth.  If the
plaintiff had visited for three weeks, it would have meant that Ms
Brown stayed
away from Mr Moleko’s home for about three weeks.
That was not her or Ms Rakaipe’s evidence.  The plaintiff had
reason
to exaggerate her visit to three weeks, namely to create the
impression that she spent an extended period with Mr Moleko.  Ms
Brown, on the other hand, had nothing to gain or lose by testifying
that the plaintiff resided at his home for a much shorter period.
In the result, it is found that, since Mr Moleko left Cape Town
during February 2014, he and the plaintiff spent only one weekend
in
2014 together, and not more than a week during September/October
2015.
25.
In the light of that finding, can it be
concluded that the relationship between the plaintiff and Mr Moleko
was akin to a marriage?
Mr Paterson, counsel for the plaintiff,
submitted that the plaintiff has established that her relationship
with Mr Moleko was
akin to a marriage relationship, especially
if regard is had to what counsel termed “
the
acceptance and agreement of the deceased to maintain and support the
plaintiff pending the intended and planned marriage between
them
”.
The submission is based on the plaintiff’s evidence firstly, that
Mr Moleko undertook to marry her in December 2016;
and secondly, that
he had agreed to support her.  I will deal with the alleged
agreement to support first.
26.
The undisputed evidence was that, since the
commencement of Mr Moleko’s employment at the end of 2008 until the
plaintiff secured
employment, during November 2014, he had supported
her financially by buying food and clothing for them and their
child.  When
he returned to Port Elizabeth during February 2014
he had sent R1 000.00 per month to her until November 2014.
Thereafter he
sent money to her only when she made a request
therefor.  Despite Ms Rakaipe’s scepticism about that
evidence, there was no
contrary evidence to cast doubt on its
veracity.  It was submitted that those facts demonstrated the
existence of a tacit agreement
that Mr Moleko would support the
plaintiff.  I have difficulty with that submission.
27.
Firstly, the plaintiff’s own evidence was
that, after she had secured employment, Mr Moleko had forwarded
money to her only
when she made a request therefor.  The
evidence did not show how often, during the twenty months between
November 2014 and July
2016, she requested money, why she requested
money or how much Mr Moleko paid to her when she made a request for
money.
28.
Secondly, her evidence shows only that he
sent money to her.  It did not show any support by her to him.
Her evidence was
accordingly insufficient to show that they jointly
contributed to the upkeep of a common home.  There was no
evidence that they
supported each other.  The fact that Mr
Moleko sent money to the plaintiff on a monthly basis between
February and November
2014 and thereafter upon request is
insufficient for a finding that Mr Moleko concluded an agreement with
the plaintiff to support
her or that he was under a legal duty to
support her.
29.
Regarding
the nature of their relationship, apart from her two visits to Port
Elizabeth, the parties have not been living together
since February
2014, when Mr Moleko returned to Port Elizabeth.  In
Paixᾶo
the court indicated the minimum requirements that a plaintiff has to
prove to establish that a deceased had undertaken a duty to
support
him or her, when it held:
[9]
“
A
plaintiff’s assertion, without more, that he or she was in a life
partnership, cannot be taken as sufficient proof of this fact.
(In this case the fund conceded that the relationship was a life
partnership.)  Proving the existence of a life partnership
entails more than showing that the parties cohabited and jointly
contributed to the upkeep of the common home.  It entails,
in my
view, demonstrating that the partnership is akin to and had similar
characteristics – particularly a reciprocal duty of support
– to
a marriage.  Its existence would have to be proved by credible
evidence of a conjugal relationship in which the parties
supported
and maintained each other.  The implied inference to be drawn
from these proven facts must be that the parties, in
the absence of
an express agreement, agreed tacitly that their cohabitation included
assuming reciprocal commitments – ie a duty
to support – to each
other.
” (authorities omitted)
30.
Unlike in
Paixᾶo
,
the defendant denied that, at the time of Mr Moleko’s death, there
had been a love relationship between him and the plaintiff
or that
such a relationship, if it was found to have existed, was a life
partnership.  At the very least, there should be evidence
of
cohabitation and that Mr Moleko and the plaintiff supported each
other.  No such evidence was adduced.  Their relationship,
since Mr Moleko returned to Port Elizabeth during February 2014, can
by no stretch of the imagination be equated with a marriage.
The
only family members to which the plaintiff made reference in her
evidence were her mother and her sister.  Her evidence
was that
Mr Moleko requested her mother whether the two of them could live
together until they got married. Her sister was only mentioned
in
relation to their accommodation in 2008.  There was no evidence
of whether or not the plaintiff’s mother, sister or any
other
family member or friend had seen their relationship as a marriage.
The evidence given by Ms Brown and Ms Rakaipe was
clear – there was
no relationship, let alone one akin to a marriage, between the
plaintiff and Mr Moleko at the time of his
death.
31.
The objective facts render the existence of
a life partnership improbable.  To summarise, those facts are
that since February
2014 until Mr Moleko’s death, he had lived in
Port Elizabeth while the plaintiff lived in Cape Town, where she had
been employed
since November 2014.  Mr Moleko had sent R1 000.00
per month to her between February and November 2014.  Thereafter
he
had sent undisclosed sums of money to her only when she requested
him to.  They had had contact in Port Elizabeth in February
2014
and in September/ October 2015.  Those visits cannot amount to
cohabitation.
32.
The plaintiff seemed to know very little
about Mr Moleko’s employment.  For example, her initial
evidence was that he had resigned
in 2014, whereas, in fact, he had
requested a transfer.  When she was asked what Mr Moleko’s
income was when he was employed
in Port Elizabeth she had no idea.
33.
Furthermore, Mr Moleko resigned from his
employment before his death, without having secured alternative
employment.  He was
accordingly unemployed at the time of his
death.  The plaintiff testified that Mr Moleko intended to marry
her during December
2016 in terms of Xhosa customary law.  As at
the time of his death only she, her mother and Mr Moleko knew of that
intention.
At that stage no lobolo negotiations had commenced
and there was no evidence to indicate that preparations were being
made for the
wedding, which was about five months away.  Mr
Moleko’s resignation from employment shortly before the alleged
intended wedding
and the absence of any wedding preparations as at
the date of his death, indicate, on the probabilities, that there
were no wedding
plans, as suggested by the plaintiff.
34.
Ms Brown’s evidence, that she had been in
a love relationship with Mr Moleko since 2014, cannot be ignored,
especially since it
was corroborated by Ms Rakaipe.  That long
term relationship is inconsistent with the conduct of a person who
was betrothed
to marry the plaintiff in December 2016.
35.
The only fact that militates in favour of
the plaintiff’s contention is that, while Mr Moleko lived with
her in Cape Town,
he supported her by buying food and clothing for
her.  That support continued after his relocation to Port
Elizabeth until November
2014 when she secured employment.
That, on its own, is insufficient to conclude that a life partnership
existed at the time
of his death.  As explained above, more is
required.  The objective facts do not support a finding that
they lived like
a family.
36.
In the light of all the evidence, I am of
the view that the plaintiff has failed to show that there was an
agreement, tacit or express,
that Mr Moleko would support her or that
he was under a legal duty to do so.  She has also failed to show
that her relationship
with Mr Moleko was akin to a marriage at the
time of his demise.  In the circumstances, her claim against the
Fund must be dismissed.
The Fund was justified in its defence
of the plaintiff’s claim against it and is accordingly entitled to
its costs.
37.
In the result, it is ordered that:
37.1.
The plaintiff’s claim, in her personal
capacity, be and is hereby dismissed.
37.2.
The plaintiff shall pay the defendant’s
costs relevant to her claim referred to in paragraph 1 above.
G H BLOEM
Judge
of the High Court
For
the plaintiff:             Mr
N M Paterson, instructed by Lawrence
Masiza Vorster Inc, Port
Elizabeth.
For
the defendant:          Mr
A M Mthembu, instructed by the State Attorney, Port
Elizabeth.
Dates
heard:                   24,
25 and 26 March and 20 and 22 July 2021.
Date
of delivery of the judgment:
17 August 2021.
[1]
Road
Accident Fund Act, 1996 (Act 56 of 1996).
[2]
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(AD) at 837H-838A.
[3]
Santam
Bpk v Henry
1999 (3) SA 421 (SCA).
[4]
National
Coalition for Gay and Lesbian Equality and others v Minister of Home
Affairs and others
2000 (2) SA 1 (CC).
[5]
Paixᾶo
and another v Road Accident Fund
2012 (6) SA 377
(SCA) and
Verheem
v Road Accident Fund
2012 (2) SA 409 (GNP).
[6]
Road
Accident Fund v Mohohlo
2018
(2) SA 65 (SCA).
[7]
n
6
at
par 5.
[8]
n
5 at par 13.
[9]
n
5 at par 29.