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2023
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[2023] ZAFSHC 171
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Lisene and Another v Road Accident Fund (4163/2021) [2023] ZAFSHC 171 (15 May 2023)
FLYNOTES:
ACTUARIAL – Loss of support – Mosotho culture –
Duty of son to support mother when he starts to
earn income –
Deceased contributed and would have continued to contribute in
terms of custom or contractually towards
her needs – State
pension insufficient and she is still in need of support –
She does not need to show that she
lives in abject poverty –
Deceased had a duty to support his mother – Claim for past
and future loss of support
referred to actuaries for calculation.
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
4163/2021
In
the matter between:
BLANDINA
MASANKOELA LISENE
LETSHEGO
PRECIOUS PEARL MOTSIE
and
ROAD
ACCIDENT FUND
First
Plaintiff
Second
Plaintiff
Defendant
CORAM:
CRONJÉ,
AJ
HEARD
ON:
3 MAY 2023
JUDGMENT
BY:
CRONJÉ, AJ
DELIVERED
ON:
15 MAY 2023
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 11h00 on 15 May 2023.
[1]
The First Plaintiff (“Mrs Lisene”) is an unmarried
Mosotho female born
on 16 November 1962 and 61 years old. She
instituted a claim in her personal capacity for past and future loss
of support
against the Road Accident Fund (“the Fund”)
pursuant to the death of her second eldest son, Mr Ntsebane Lisene
(“the
deceased”).
[2]
The deceased was a passenger in one of the two insured vehicles that
were involved
in a motor vehicle accident that took place on the N8
and R709 in the Free State Province on 22 June 2018. It was
pleaded
that the accident was the result of either one or both the
insured drivers.
[1]
The Fund
does not deny the negligence of the respective driver/s and its
liability, subject to proof that Mrs Lisene was and would
in future
have been reliant on the support of the deceased.
[3]
The Second Plaintiff was in a relationship with the deceased until he
passed away.
She also claimed in her personal capacity for loss
of support but withdrew her claim.
[4]
Mrs Lisene claims R488 685.00 in respect of past- and future
loss of support.
[5]
By agreement between the parties, I am called upon to determine only
whether the deceased
owed Mrs Lisene any duty of support and if so,
whether he did in fact support her. The quantum of Mrs Lisene’s
loss will
be determined separately.
EVIDENCE IN CHIEF
[6]
Mrs Lisene resides in an old and dilapidated brick house in Ladybrand
for which she
has no title deed. At date of the demise of the
deceased, her only daughter was a student at the Central University
of Technology
(CUT) in Bloemfontein no longer permanently residing
with her. Her eldest son presently resides in Cape Town. To her
knowledge,
he recently succeeded in securing employment and she does
not know what his income is. She last saw the father of the children
during or about 1999/2000.
[7]
She completed Grade 10 at the Ladybrand Secondary School. She was
thereafter employed
as a domestic worker in the suburbs of Ladybrand
and in the township for two (2), and sometimes three (3) days per
week.
When the deceased passed away she received an average
cash income from her employment in the amount of R900.00 per month.
She attempted to make ends meet but the money was not always enough.
She would on occasion do piece- jobs and also borrow
money from
family members. Although her brother and sister assisted her in
making ends meet, they were not compelled to do so.
[8]
She relies on Mosotho custom for the deceased’s duty of support
as well as the
discussion she had with the deceased. According
to custom, parents have to maintain their children if they are
unemployed.
Children know that they have to support their parents as
soon as they themselves secure employment.
[9]
At date of his death, the deceased worked at the Nissan motor
dealership in Bloemfontein
where he was a salesman. He played for the
Free State cricket team from under 10 up to under 25. He
received allowances from
the cricket games which he would share with
her in an amount of approximately R1 000.00 on occasion.
[10]
He would visit her at the end of the month and buy groceries (maize,
bread flour, rice, cooking
oil, spices, mayonnaise, vegetables,
detergents, etc.) to the value of approximately R1 000.00 and
would also give her cash
in an amount of R2 500.00 per month. With
the R2 500.00 and an average of R900.00 per month that she
herself earned, she paid
for transport, prepaid electricity,
clothing, medication and on some occasions consultations at doctors.
She would, if available,
set aside approximately R300.00 per month
for emergencies.
[11]
She testified that it is not easy to obtain employment in Ladybrand.
She suffers from high
blood pressure since the death of her son for
which she uses prescription medication. She has no policies in
her name.
CROSS-EXAMINATION
[12]
In cross-examination she testified that her son started contributing
towards her maintenance
round about 2010. Her eldest son found
employment in Cape Town approximately one (1) month ago but she knows
nothing more.
He does not assist her with any maintenance.
She has not yet had the discussion regarding the obligation to
maintain her
with the eldest son, apparently due to the fact that he
has for a long time not resided with her and she has not seen him
recently.
[13]
She applied for State pension from SASSA when she was 60 years old
and receives R1 900.00
[2]
per month for the past two (2) months. She has not been
employed after the deceased passed away as she was not feeling well
and is sickly. She is, however, starting to feel better.
[14]
Save for the SASSA pension, she does not have any money to assist her
daughter who is in her
fourth year at the Central University of
Technology. Mrs Lisene’s sister assists the daughter with
accommodation in Bloemfontein.
[15]
She testified that she needs an average amount of R4 000.00 per
month for her own expenses
which include, electricity, R1 500.00
for groceries (which she states is expensive), R20.00 per day for
transport for herself,
transport for her daughter when she visits her
over weekends, clothing, miscellaneous items in the house, cosmetics,
etc.
The deceased would buy groceries of approximately
R1 500.00 per month and would also contribute towards transport,
electricity
and clothing expenses. Her medication costs between
R500.00 and R600.00 per month, which she has to pay for herself.
She visits town every day to
inter alia
look for employment
but also to buy groceries and visit pharmacies. The deceased
did not have a pension fund when he passed
away and she received
nothing from his employer or from any other source pursuant to his
death. Her brother and sister knows
that the deceased helped to
maintain her.
[16]
The cricket that the deceased played was only over weekends and it
would be seasonal. When
he returned from the cricket tours, he
would give her some money. The Plaintiff thereupon closed her
case and the Defendant
did not call any witnesses.
[17]
The last payslip of the deceased shows that he received a gross
salary of R8 100.00 and
a net salary of R6 453.56. In a
document provided by the employer, it is stated that the deceased was
employed from 1 November
2017 until date of his death. He earned an
average of R12 463.37 (basis salary plus commission) per month
over a period of
eight (8) months. No commission is reflected on his
last payslip. According to the employer he belonged to the NTT
Provident Fund
and had life cover. She testified that she received
nothing from those sources. Both documents were handed in as
admissible evidence
by agreement between the parties.
THE LAW
[18]
Both the representatives submitted helpful heads of argument and I am
indebted for their assistance.
[19]
Mr Joubert Zietsman SC relied on
Fosi
v Road Accident Fund and another
[3]
where Dlodlo J examined the case law pertaining to a child’s
duty to support his parent. The Court inter alia held:
“
(13)
I am aware that several claims by parents that their children were
under a legal duty to maintain them have failed essentially
because
the parents did not succeed to prove that they were
indigent
.
Cases such as Petersen v South British Insurance Co. Ltd 1967(2) SA
236 (C) and Anthony & Another v Cape Town City Council
1967(4) SA
445 (A) are examples of cases where such claims did not succeed.
I
hold the view though, that these cases did not establish an absolute
line between indigent and “mere” poverty when
one has to
make a determination of the duty of the children to support and
maintain a parent
. Such cases
must necessarily be read in the light of their own facts.
Simplistically put, the
deciding principle seems to be whether the parent can prove that he
or she was dependent on the child’s
contribution for the
necessities of life. Indeed what constitutes necessities of life will
in turn depend on the individual parent’s
station in life
.
”
[my emphasis]
[20]
In
Keforilwe
v Road Accident Fund
[4]
the Court referred to
O
osthuizen
v Stanley
[5]
where it was held:
"…
Support (alimenta) includes not only food and clothing in accordance
with the quality and condition of the persons
to be supported, but
also lodging and care in sickness; …
Whether
a parent is in such a state of comparative indigency or destitution
that a court of law can compel a child to supplement
the parent's
income is a question of fact depending on the circumstances of each
case
."
[my emphasis]
[21]
In
Jacobs
v Road Accident Fund
[6]
the Court took into consideration that it would be invidious if a
court would rule that the deceased had no duty to support his
father
when he had voluntarily assumed that obligation. The court in that
case held that such undertaking gave the plaintiff a
reasonable
expectation that his maintenance contributions would continue and
where the deceased voluntarily assumed that obligation
it would be is
sufficient in itself to warrant a finding that the plaintiff has
acquired a right to maintenance, which was enforceable."
[22]
In
JT
v Road Accident Fund
[7]
, Sutherland
J held:
"It
seems to me that these cases demonstrate that the common law has been
developed to recognise that a duty of support can
arise, in a given
case, from the fact-specific circumstances of a proven relationship
from which it is shown that a binding duty
of support was assumed by
one person in favour of another.
Moreover,
a culturally imbedded notion of 'family', constituted as being a
network of relationships or reciprocal nurture and support,
informs
the common law's appetite to embrace, as worthy of protection, the
assumption of duties of support and the reciprocal right
to claim
support, by persons who are in relationships akin to that of a
family
.
"
[my emphasis]
[23]
Mr Zietsman also referred to
Road
Accident Fund v Mohohlo
[8]
where the Court assessed the legal convictions of the community and
the values underlying the Constitution, particularly Ubuntu,
as the
Courts were required to do in terms of Section 211(3) of the
Constitution of the Republic of South Africa.
[24]
In
Paixᾶo
and another v Road Accident Fund
[9]
,
Cachalia JA held:
“
[13]
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), applicable to customary law, which recognized
a duty of support where there rested a de facto relationship
of
mother and child
.”
[my emphasis]
[25]
Mr Zietsman submits the uncontroverted evidence of Mrs Lisene was
that in terms of Mosotho culture,
the deceased was obliged to
contribute at the time when he started to earn an income. One finds
an illuminating exposition of the
principles applied in customary law
in
Seleka
v Road Accident Fund
[10]
.
[26]
Ms C Bornman, who appeared for the Fund referred to
Zysset
v Santam
[11]
,
where the Court held that State welfare payments should be deducted
from a claim for damages as compensation came from the same
public
funds as welfare payments. The Constitutional Court, however,
found in
Coughlan
N.O. v Road Accident Fund (Centre for Child Law as
Amicus
Curiae
)
[12]
:
“
[59]
The purpose of the RAF is to give the greatest possible protection to
claimants. A deduction of either foster child or child
support grants
would undermine that purpose. A reading of the RAF Act suggests that
those grants should not be deductible.
The
RAF Act expressly provides that double compensation for persons who
are entitled to claim under the Compensation for Occupational
Injuries and Disease Act should be deducted from compensation by the
RAF but there is no equivalent reference to social grants
.”
[my emphasis]
[27]
In
Horn
obo Mokoena v Road Accident Fund
[13]
“
[22]
It is important to stress that this finding does not mean that there
is any general principle precluding an award of damages
for loss of
support where dependants have had the benefit of social support
grants. In this situation, as in most, the facts should
determine
whether there has been an actual financial loss caused by the death
of a deceased.
Where there is
evidence that social assistance grants are warranted, and that double
compensation will not ensue, an award of damages
may well be
appropriate. As was said in Zysset, the enquiry must involve
considerations of public policy, reasonableness and justice.
A court
faced with the enquiry must take into account two conflicting policy
considerations: that a dependant should not receive
double
compensation, on the one hand, and that a wrongdoer should not be
relieved of liability because of fortuitous benefits received
by the
dependant
.”
[my emphasis]
[28]
Referring to
Tutubala
v Road Accident Fund
[14]
,
Ms Bornman submits that the claim of the Plaintiff in that case was
dismissed on the basis that the deceased made a monthly contribution
to the Plaintiff, which did not make Plaintiff indigent. The
Plaintiff had to prove that the contribution was needed. The
facts in
Tutubala
is, however, distinguishable as that Plaintiff had R100.00 left at
the end of the month and was not in need.
[15]
That Court considered
Wigham
v British Traders Insurance Co Ltd
[16]
where it was held that in 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
a position regarding 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. The
Court did not
doubt the correctness of the
Wigham
case. The Court held that it does not 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.
[17]
[29]
In
Jacobs
v Road Accident Fund
[18]
the Court gave recognition to a contractual undertaking/duty to
support:
“
[11]
On the facts presented, I am satisfied that the deceased undertook to
support the plaintiff with
the intention to be legally bound by such
undertaking. The deceased therefore, owed the plaintiff a contractual
duty to support.
[19]
Once a dependent established the duty, it follows, that the law ought
to protect it.”
[30]
Examining the Plaintiff’s evidence that the deceased bought
groceries on a monthly basis
amounting to more than R1 000.00
per month, in addition to a cash amount of approximately R2 500.00,
Ms Bornman submits
that the deceased’s last payslip showed his
net pay to be R4 429.66. She submits that if Mrs Lisene’s
evidence
is accepted, she was assisted to the amount of R4 000.00
on a monthly basis which would have left the deceased a mere R249.66
to cover his own needs, including rental. She submits that this
was highly improbable and that the version should be rejected.
[31]
Referring to the deceased’s payslip, she states that the
deceased belonged to the NTT Provident
Fund and if Mrs Lisene did not
receive any pay-out from the deceased’s pension, an inference
can be drawn that the deceased
did not view Mrs Lisene to be
dependent on him and therefore did not nominate her as a beneficiary,
or he may have had other dependents.
If he had other
dependents, it would influence the calculation of the quantum.
[32]
Referring to Mrs Lisene’s residential accommodation, as well as
the fact that she could
not give a satisfactory breakdown of her
monthly expenses to cover the necessities, Ms Bornman submits that
Mrs Lisene could save
between R300.00 and R500.00 per month.
She furthermore submits that logic dictates that the person claiming
to be indigent
and who has lost a source of support, would not really
give up the only other source of income, being employment, and that a
reasonable
inference would be that Mrs Lisene did not need support
from the deceased, alternatively that the deceased never supported
her.
She also receives income from SASSA.
[33]
Ms Bornman did not argue that there does not rest a duty support in
terms of Mosotho custom.
[34]
The question whether there exists such a Mosotho custom is therefore
answered in the affirmative.
It is also in line with principles in
respect of a duty to support in the common law. Over and above that,
our law recognises a
contractual undertaking to support.
IS MRS LISENE IN NEED
OF SUPPORT?
[35]
Mrs Lisene used to work as a domestic worker earning approximately
R900.00 per month. When
the deceased passed away, she started
struggling with her health but is now improving. There is no
evidence that she now,
aged 61, is able to continue to work and
receiving SASSA is indicative of an impairment. She testified that
employment is scarce.
What is known is that she now receives
SASSA in an amount of
R2 080.00
per
month.
[36]
I agree with Ms Bornman that the Plaintiff did not give a thorough
exposition of her monthly
needs.
[37]
I am however satisfied that looking at the following factors, the
deceased contributed and would
on probabilities have continued to
contribute, at least in terms of custom, if not contractually,
towards a need that she had and
still has:
37.1
he bought her groceries in an amount of between R1 000.00 and
R1 500.00
per month;
37.2
she, at that stage, earned R900.00 per month from employment;
37.3
in addition thereto the deceased gave her R2 500.00 per month in
cash;
37.4
she has to expend monies on medical expenses of between R500.00 and
R600.00
per month and visits general practitioners;
37.5
she purchases electricity;
37.6
she uses public transport;
37.7
she needs to buy clothing;
37.8
she buys cosmetics;
37.9
she is not the titleholder of the property in which she stays and
cannot liquidate
it;
37.10
she could not always save monies for emergencies;
37.11
she has no other liquid assets; and
37.12
the deceased earned more than what appears on the salary slip as is
confirmed in the document
prepared by the employer.
[38]
When the deceased assisted her, she received at
least R4 400.00 (R900.00 + R1 000.00 + R2 500.00)
per
month. The R900.00 that she received from employment up to the
deceased’s demise is lost. She now receives
R2 080.00
from SASSA. This means
that
she is still in need of support. She does not need to show that she
lives in abject poverty.
[39]
Mr Zietsman prepared a draft order and requested that same be made an
order of Court. I made
some amendments to it.
COSTS
[40]
There is no reason why the normal principles regarding costs should
not be applied and costs
follow the result. Mr Zietsman did not ask
for costs of senior counsel and considering the questions to be
answered and the nature
of the evidence presented, I am of the view
that costs on such scale would not be justified.
ORDERS
[41]
I make the following orders:
1.
The deceased, Ntsebane Lisene, had a
duty to support, and in fact supported the First Plaintiff, and as a
result, the First Plaintiff
suffered past and future loss of support.
2.
The First Plaintiff’s claim for
past and future loss of support is referred to Munroe Actuaries to be
calculated, within twenty
(20) days of the date of this order.
3.
Upon receipt of the actuarial
calculation, the parties are granted leave to approach Court to make
the actuarial calculation an
order of Court. Should the parties
not be able to agree on the actuarial calculation, the matter is
referred to the pre-trial
roll for further directives.
4.
The Defendant pays the First Plaintiff’s
taxed or agreed party and party costs on High Court scale until date
of this order,
including:
4.1
the reasonable preparation/qualifying
and reservation fees and expenses (if any) of Munroe Forensic
Actuaries;
4.2
payment of the capital amount, to the
extent that same is not referred to pre-trial, shall be made without
set-off, or deduction
within one hundred and eighty (180) calendar
days from date of granting of this order, directly into the trust
account of the First
Plaintiff’s attorneys, the details of
which are:
Honey
Attorneys – trust account
Bank:
Nedbank Limited
Maitland
Street branch
Branch
code: 1[…]
Account
number: 1[…]
Ref:
HL B[…]
4.3
Payment of the taxed or agreed costs
shall be made within one hundred and eighty (180) days of taxation
and shall likewise be effected
into the trust account of the First
Plaintiff’s attorney.
4.4
Interest shall accrue at 10.5%,
compounded in respect of:
4.4.1
the capital of the claim, calculated
from fourteen (14) days from date of acceptance or proof of the
actuarial calculation of Munroe
Forensic Actuaries;
4.4.2
interest on the taxed or agreed costs,
calculated from fourteen (14) days from date of agreement,
alternatively, final determination
of the capital amount.
_______________________
P
R CRONJÉ, AJ
On
behalf of the Plaintiffs:
Adv PJJ Zietsman SC
Instructed by:
HL Buchner – Honey
Attorneys
Honey Chambers
BLOEMFONTEIN
On
behalf of the Defendant:
Ms C Bornman
Instructed by:
Office of the State
Attorney
BLOEMFONTEIN
[1]
Pleadings, p. 6, para 6
[2]
As
of 1 April 2023, the old age pension is
R2 080.00
per person, per month. See:
SASSA
Older Persons Grant/ Old Age Pension (sassagrants.co.za)
[3]
2008 (3) SA 560 (C)
[4]
[2016]
JOL 35680 (NWM)
[5]
1938 AD 322
at 327–328
[6]
2010 (3) SA 263 (SE). see also
Law
of Parent and Child, 4th edition, p. 403 by Irwin Spirow
[7]
2015 (1) SA 609 (GJ) at paragraph [26]. The same
principles were applied in Lesotho by Banjane J in Moholisa
v
District Medical Officer (CIV/T/617/2008) [2021] LSHC 51 (04 June
2021) at para [17]
[8]
2018 (2) SA 65
(SCA) at para [12] – [14]
[9]
2012 (6) SA 377
(SCA). See also Verheem v Road Accident Fund 2012
(2) SA 409 (GNP)
[10]
2016 (4) SA 445
(GP) at para [12] – [15]. See also: Osman v
Road Accident Fund 2015 (6) SA 74 (GP)
[11]
1996 (1) SA 273 (C)
[12]
702/13
[2014] ZASCA 106
(3 September 2014);
2015
(6) BCLR 676 (CC)
[13]
(915/2017) [2019] ZAGPPHC 470 (4 July 2019)
[14]
(2014/34463) [2015] ZAGPJHC 149 (23 July 2015) at para [11]
[15]
At para [18]
[16]
1963 (3) SA 151 (W)
[17]
At para [14] – [15]
[18]
(21427/2017) [2018] ZAGPPHC 830;
2019 (2) SA 275
(GP) (23 November
2018)
[19]
Du Plessis v Road Accident Fund
2004 (1) SA 359
para 16