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[2010] ZASCA 30
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Road Accident Fund v Timis (29/09) [2010] ZASCA 30 (26 March 2010)
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THE
SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH
AFRICA
JUDGMENT
Case No 29/09
In the matter between:
THE ROAD ACCIDENT FUND
Appellant
and
NTOMBIZANELE FLORENCE TIMIS
Respondent
Neutral citation:
The
Road Accident Fund v N F Timis
(29/09)
[2010] ZASCA 30
(26 March 2010)
Coram:
Navsa,
Heher, Mhlantla JJA, Hurt et Saldulker AJJA
Heard:
1
March 2010
Delivered:
26
March 2010
Summary
:
Motor vehicle accident â death of breadwinner â claim
against RAF â deductibility
of child care grants from the damages awarded. Held â child support
grants are directly linked to
the death of the deceased and
deductible from final award.
ORDER
____________________________________________________________
On appeal from:
The Eastern Cape High Court, Port Elizabeth (Liebenberg J sitting as
court of first instance).
The following order is made:
1. The appeal is upheld.
2. The order made by the
court below is set aside and replaced with an order in the following
terms:
'There shall be
judgment for the plaintiff as follows:
(a) In her capacity
as mother and natural guardian of Siphokazi, payment of the amount of
R136 594.40.
(b) In her capacity
as mother and natural guardian of Zandile, payment of the amount of
R166 386.05.
(c) In her personal
capacity, payment of the amount of R324 586.60.'
JUDGMENT
___________________________________________________________
MHLANTLA JA
(NAVSA, HEHER JJA, HURT and SALDULKER AJJA concurring):
[
1
]
Mr Alfred Vuyisile Makeleni (the deceased) died from injuries
sustained after being struck by a motor vehicle on 28 July 2001.
He
was married to Ms Ntombizanele Timis, the respondent in this matter,
in terms of customary law. They had two minor children, namely
Siphokazi born on 24 June 1996 and Zandile born on 25 May 1999. The
deceased was the sole breadwinner.
Shortly after his
death, the respondent, who was unemployed, applied for the benefit of
her children
for a child support
grant in terms of the Social Assistance Act 59 of 1992, which has
since been repealed by the Social Assistance
Act 13 of 2004 (the
Act). The application was approved during November 2001.
[2] The respondent instituted
action in the High Court, Port Elizabeth against the Road Accident
Fund, a statutory insurer and the
appellant in this matter, for
damages arising from the death of her husband. The matter came before
Liebenberg J. The merits already
having been conceded, the learned
judge was only required to determine quantum. One of the issues that
had to be decided was whether
the amount of the children's grant
received by the respondent after the death of her husband should be
deducted from the damages
to be awarded in respect of the children.
At the time of the trial, the total amount of the grants received by
the respondent on
behalf of the children was R14 690.
[3] At the end of the trial, the
learned judge, after discussing
Indrani
& another v African Guarantee and Indemnity Co Ltd
,
1
disagreed with that
court's conclusion to the effect that the contributions by the State
prior to the award of damages were deductible
because they were
received by the children by reason of the death of their father.
[4] Liebenberg J held that the
child support grants could not be said to have been received in
consequence of the deceased's death
and that the amount of R14 690
could therefore not be deducted from the final award made to the
children for loss of support by
the deceased. The court, after
taking into account the question of contingencies, awarded damages in
respect of the children
2
as follows:
In respect of Siphokazi - R143
939.40
In respect of Zandile - R173
731.05
The appellant now appeals against
this finding with the leave of the court below.
[5] The issue on appeal is
whether or not the child support grants should have been deducted by
the trial court from the damages awarded
to the respondent in her
representative capacity for loss of support.
[6] Each case in which the
deduction of a benefit is in issue must, of course, be considered on
its own facts and having regard
to the applicable statutes. It is
necessary to have regard to the purpose and objects of the Act. The
purpose of the grant is to
supplement the income of indigent
families. The grants are meant for those who have insufficient means
to support themselves and
to provide for a child who does not have
maintenance. A child support grant is made in terms of section 6 of
the Act.
3
Certain requirements have to be complied with before a person
qualifies for the grant.
4
An applicant, inter alia, qualifies for the grant, if he or she has
no source of income or if the income is below the threshold level.
[7] In
Indrani
,
a mother brought an action for loss of support suffered by her and
her minor children as a result of the death of her husband from
injuries sustained in a motor vehicle collision. After the death of
the husband, she received certain allowances in respect of
maintenance
for the children from the State in terms of section 89(1)
of the now repealed Children's Act 33 of 1960. Fannin J stated that a
dependant
entitled to damages for loss of support should be awarded
damages only for the material loss caused by the breadwinner's
death.
5
The judge held that the contributions by the State prior to the award
of the damages by the court were deductible because they were
benefits received by the children by reason of the death of their
father. A similar approach is to be found in the judgment of Trollip
JA in
Santam
Versekeringsmaatskappy v Byleveldt
1973 (2) SA 146
(A) at 173 to 174. It is that fundamental principle,
subject to the considerations set out in the next paragraph, that has
to be
applied in this case.
[8] In
Zysset
& others v Santam Ltd
6
the following was stated:
'[I]t is well
established in our law that certain benefits which a plaintiff may
receive are to be left out of account as being completely
collateral.
The classic examples are
(a)
benefits received by the plaintiff under ordinary contracts of
insurance for which he has paid the premiums and
(b)
moneys and other benefits received by a plaintiff from the
benevolence of third parties motivated by sympathy. It is said that
the
law baulks at allowing the wrongdoer to benefit from the
plaintiff's own prudence in insuring himself or from a third party's
benevolence
or compassion in coming to the
assistance of the
plaintiff . . . . Nonetheless, as pointed out by Lord Bridge in
Hodgson
v Trapp & another
[1988] 3 All ER 870
(HL) at 874
a
,
the benefits which have to be left out of account, "though not
always precisely defined and delineated", are exceptions
to the
fundamental rule and "are only to be admitted on grounds which
clearly justify their treatment as such".
. . . .
In the present case,
counsel on both sides sought to analyse the benefits received by the
plaintiffs and to compare them with
the benefits received in
the
Dippenaar
case . . . .
It is doubtful
whether the distinction between a benefit which is deductible and one
which is not can be justified on the basis of
a single
jurisprudential principle. In the past the distinction has been
determined by adopting essentially a casuistic approach
and it is
this that has resulted in a number of apparently conflicting
decisions. Professor Boberg in his
Law
of Delict
vol 1 at 479 explains the difficulty thus:
"(W)here the
rule itself is without logical foundation, it cannot be expected of
logic to circumscribe its ambit."
But, whatever the
true rationale may be, if indeed there is one, it would seem clear
that the inquiry must inevitably involve to some
extent, at least,
considerations of public policy, reasonableness and justice. . . .
This in turn must necessarily involve, I think,
a weighing up of
mainly two conflicting considerations in the light of what is
considered to be fair and just in all the circumstances
of the case.
The one is that a plaintiff should not receive double compensation.
The other is that the wrongdoer or his insurer ought
not to be
relieved of liability on account of some fortuitous event such as the
generosity of a third party.'
[9] A plaintiff should not be
precluded from obtaining a full measure of damages. He or she should
however not receive double compensation.
In
Hodgson
v Trapp & another
,
7
the plaintiff claimed damages for personal injuries sustained and
loss and expenses incurred as a result of a motor vehicle accident.
The trial judge awarded damages. The defendants
appealed to the House of Lords to
determine whether or not the attendance and mobility allowances
payable to the plaintiff pursuant
to sections 35 and 37 of the Social
Security Act should be deducted from the award made. Lord Bridge
stated the following:
8
'In the end the
issue in these cases is not so much one of statutory construction as
of public policy. If we have regard to the realities,
awards of
damages for personal injuries are met from the insurance premiums
payable by motorists, employers, occupiers of property,
professional
men and others. Statutory benefits payable to those in need by reason
of impecuniosity or disability are met by the
taxpayer. In this
context to ask whether the taxpayer, as the "benevolent donor",
intends to benefit "the wrongdoer",
as represented by the
insurer who meets the claim at the expense of the appropriate class
of policy holders, seems to me entirely
artificial. There could
hardly be a clearer case than that of the attendance allowance
payable under s 35 of the 1975
Act where the
statutory benefit and the special damages claimed for cost of care
are designed to meet the identical expenses. To allow
double recovery
in such a case at the expense of both taxpayers and insurers seems to
me incapable of justification on any rational
ground.'
[10]
Counsel
for the respondent submitted that the child support grants were not
causally linked to the death of the deceased as the receipt
of such
grants was not a benefit arising from his death and accordingly that
these grants were
res
inter alios
acta
.
[11] This submission has no
merit. It is not in dispute that the deceased was responsible for the
support of his family during his
lifetime. The position, however,
changed upon his death as his family became indigent. The respondent
had to apply for the child
care grant as the parent who had provided
maintenance had died. The children received a benefit of a social
grant because they had
lost their father, a breadwinner, in
circumstances set out in para [1] above. The child support grants are
therefore directly linked
to the death of the deceased.
[12] Counsel for the respondent
relied further on
Makhuvela
v Road Accident
Fund
.
9
In that case, the parents of a minor child had died, whereafter the
grandparents were appointed as foster parents. The grandmother
received a foster care grant. The court had to decide whether the
payment of such a grant was
res
inter alios acta
and
not deductible from the final award of damages. Malan J held that the
primary purpose of the foster care grant was the realisation
of the
constitutional rights of the child through the intervention of the
foster parent. The grant was paid to the foster parent
and not the
child to enable the parents to comply with their constitutional and
other obligations to the child. In
Makhuvela
,
the court was dealing with a foster care grant which has its own
dimensions. In the present case, we are concerned with the material
loss suffered by reason of the deceased's death and the impact of a
social assistance grant for the benefit of a child. For this
reason,
it is not necessary to explore the correctness or otherwise of the
judgment in
Makhuvela
.
[13] In this matter, the State
assumed responsibility for the support of the children as a result of
the breadwinner's death. The
moneys paid out in terms of the Road
Accident Fund Act and the
Social Assistance Act are
funded by the
public through two State organs. Not to deduct the child grant would
amount to double recovery by the respondent at
the expense of the
taxpayer and this is incapable of justification. In my view, it was
not the intention of the Legislature to compensate
the dependants
twice.
[14] Although the amount in
dispute in the present case may appear to be small and insignificant,
one has to consider the fact that
there may be a multitude of similar
claims and with resultant ramifications for the National Treasury. It
seems to me that the principles
of fairness, equity and
reasonableness dictate that the grants received should be deducted
from the awards made by the court a quo.
As far as equity is
concerned, there is a public interest in the support of indigent
children. The deduction of the grants will not
leave the children
destitute as their interests have been met by the final award of the
sums of R136 594.40 and R166 386.05 respectively,
which represents
the true measure of the damages sustained.
[15] The court a quo accordingly
erred in finding that the child support grants should not be
deducted. Its order in that regard
must be set aside.
[16] That brings me to the
question of costs. The appellant does not seek a costs order against
the respondent. We were, however,
provided with three volumes of
unnecessary material, when the parties could have agreed that the
matter be decided in the form of
a stated case. It has become an
undesirable and not infrequent practice that parties do not give due
consideration to the rules relating
to the composition of records on
appeal. We record, once again our disapproval of this practice.
[17] In the result the following
order is made:
1. The appeal is upheld.
2. The order made by the court
below is set aside and replaced with an order in the following terms:
'There shall be
judgment for the plaintiff as follows:
(a) In her
capacity as mother and natural guardian of Siphokazi, payment of the
amount of R136 594.40.
(b) In her capacity
as mother and natural guardian of Zandile, payment of the amount of
R166 386.05.
(c) In her personal
capacity, payment of the amount of R324 586.60.'
__________________
N Z MHLANTLA
JUDGE OF APPEAL
APPEARANCES:
Counsel for Appellant : A
Frost
I Dala
Boqwana Loon & Connellan Inc
PORT ELIZABETH
Webbers, BLOEMFONTEIN
For Respondent : N Paterson
A Moorhouse
Roelofse Meyer Inc
PORT
ELIZABETH
Symington & de Kok
BLOEMFONTEIN
1
1968
(4) SA 606
(D).
2
The
damages awarded to the respondent in her personal capacity was in an
amount of R324 586.60.
3
Section 6
reads:
'
Child
support grant
A
person is, subject to
section 5
, eligible for a child support grant
if he or she is the primary care giver of that child.'
4
Section 5
reads:
'
Eligibility
for social assistance
:
(1)
A person is entitled to the appropriate social assistance if he or
she â
(a)
is eligible in terms of
section 6
,
7
,
8
,
9
,
10
,
11
,
12
or
13
;
(b)
. . . ;
(c)
. . . ;
(d)
complies with any additional requirements or conditions prescribed
in terms of subsection (2); and
(e)
applies for social assistance in accordance with
section 14(1).
(2)
The Minister may prescribe additional requirements or conditions in
respect of â
(a)
income thresholds;
(b)
means testing;
(c)
. . . .'
5
At
607F-G.
6
1996 (1) SA 273
(C) at 278B-D; and 278H-279C. See also Lawsa Vol
8(1) 2ed para 156 and
Standard
General Insurance Co Ltd v Dugmore NO
1997
(1) SA 33
(A) at 42B.
7
[1988]
3 All ER 870 (HL).
8
At
876F.
9
[2009] ZAGPJHC 18;
2010 (1) SA 29
(GSJ).