Brief Summary

Loss of support — Motor vehicle accident — Plaintiffs claiming damages for loss of support following the death of the deceased in a motor vehicle accident — First plaintiff engaged to the deceased and second plaintiff, their daughter, aged 14 at the time of the accident — Court held that the defendant is 100% liable for the damages claimed by both plaintiffs, including compensation for the second plaintiff's loss of support until age 24, taking into account general contingencies.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were an action for damages against the Road Accident Fund arising from a fatal motor vehicle collision. The matter concerned claims for loss of support brought by the deceased’s long-term partner (the first plaintiff) and their minor daughter (the second plaintiff), following the death of the child’s father in the accident.

The parties were Stevens: Sussan Cornelia Susarah and Botes: Shereen as plaintiffs, and the Road Accident Fund as defendant. The accident occurred on 13 September 2015 in Lambton, Germiston, and the deceased (P [....] J [....] B [....]) was killed.

Procedurally, the litigation had an important history. On 28 February 2019, the parties concluded a settlement agreement that was made an order of court. That order recorded, among other terms, that the defendant was liable for 100% of the second plaintiff’s proven damages and that an amount of R632 988.00 was payable as an interim payment. Subsequently, on 19 May 2021, the defendant’s defence was struck out for non-compliance with a court order. The matter then proceeded before Twala J as an application for default-type relief (judgment in the absence of an operative defence), although counsel for the defendant attended and participated in a limited way.

The general subject-matter of the dispute at the hearing was not negligence or causation (which the parties accepted had been settled), but rather issues concerning legal entitlement to support, the proper procedural role of a defendant after its defence has been struck out, the interpretation of the 2019 court order (whether interim or full and final), and elements of quantum, including the duration of support for the child and the appropriate contingencies.

Material Facts

The court relied on the following material facts, largely presented through the admitted affidavits, the actuarial report, and limited oral evidence addressing specific issues agreed between the parties.

It was common cause that a motor vehicle accident occurred on 13 September 2015 and that it caused the death of the deceased. It was also accepted that the plaintiffs’ claims were premised on loss of support, and that issues of negligence and causation were no longer in dispute between the parties by the time of the hearing.

A settlement order was granted on 28 February 2019 dealing expressly with the second plaintiff. It recorded the defendant’s liability for 100% of the second plaintiff’s proven damages and directed payment of R632 988.00 to the second plaintiff’s attorneys “as an interim payment”. A later dispute arose as to whether this order reflected a full and final settlement of the second plaintiff’s claim or whether it was truly interim.

After the defendant’s defence was struck out on 19 May 2021, counsel for the defendant nonetheless appeared at the hearing. The parties agreed that the actuarial report and the plaintiffs’ affidavits (including the actuary’s affidavit) would be admitted, and that oral evidence would be led only on limited factual topics: the relationship and marital status of the first plaintiff and deceased; the first plaintiff’s current marital status; whether the deceased had other dependants; and the second plaintiff’s educational progress.

On dependency, the first plaintiff testified that she and the deceased were unmarried but had been engaged for fifteen years. The deceased had a son, John Botes, from a previous marriage, whom the deceased maintained until the son became employed. At the time of the deceased’s death, John was living with his mother, employed, and independent of the deceased; he later immigrated to the United Kingdom. The first plaintiff testified she was 57 years old, was not married at present, was not in a relationship, and did not intend to marry in future.

On the second plaintiff’s education, the evidence was that she was 14 years old at the time of her father’s death. She completed matric in 2018, did not study in 2019 due to lack of funds, and then enrolled at CTU Training Solution in 2020/21. She was in her second year and completing “profiles” for a graphic design course, intending thereafter to pursue a two-year university course in graphic design. She testified that she awaited results for her profiles and understood she needed to pass at CTU to gain admission for the university course. Her first-year CTU results were 67%.

The actuarial calculations were before the court. A further factual issue relevant to quantum was whether the actuary’s general future contingencies of 15% adequately catered for uncertainties such as the first plaintiff’s prospects of remarriage and the possibility of future support to the deceased’s adult son.

Legal Issues

The court was required to determine several central questions, predominantly involving the application of legal principles to facts and, in relation to document interpretation, the determination of meaning from text in context.

A first issue was procedural and concerned the extent to which a defendant whose defence has been struck out may nonetheless participate in proceedings, including whether it may cross-examine witnesses, and whether permitting such participation would be improper or prejudicial.

A second issue concerned the interpretation of the court order of 28 February 2019, specifically whether the payment recorded there was intended to be full and final settlement of the second plaintiff’s claim or only an interim payment pending final quantification.

A third issue concerned the merits in relation to the first plaintiff, namely whether—given that negligence and causation were accepted as settled—there remained a requirement to determine whether the deceased owed the first plaintiff a legal duty of support sufficient to ground a loss of support claim, and whether this component had been satisfied on the evidence.

A fourth set of issues related to quantum, including whether the second plaintiff should be compensated for loss of support up to the age of 24, given her educational trajectory, and whether the 15% general contingencies used by the actuary were appropriate in light of arguments about remarriage prospects and possible support for the deceased’s adult son.

Court’s Reasoning

On the procedural objection to the defendant’s participation, the court rejected the plaintiffs’ contention that it was improper to permit the defendant to participate after its defence had been struck out. The court emphasised that procedural rules exist to facilitate the administration of justice and that overly technical objections should not, absent prejudice, impede adjudication on the real merits. Relying on authority stressing that rules serve the court’s function of achieving justice, the court held that the striking out of a defence does not, by itself, bar a defendant from participating, although it restricts the defendant from advancing the defence that has been struck out.

Applying that approach, the court considered that the defendant’s cross-examination did not constitute an attempt to introduce a new case inconsistent with the struck-out defence, but rather tested the evidence presented by the plaintiffs on the limited factual issues that had been identified. The court further rejected the “ambush” argument, stating that legal practitioners should be prepared to prove their case on a balance of probabilities, and should not assume that the absence of an opponent guarantees the relief sought.

In relation to the first plaintiff’s claim on the merits, the court noted that the February 2019 order expressly referred only to the second plaintiff, which required the parties to address the basis upon which the first plaintiff could succeed. The parties were agreed that negligence and causation were settled and that what remained was whether the deceased had a legal duty to maintain the first plaintiff. The court accepted that this issue was dealt with satisfactorily in the first plaintiff’s affidavit (admitted into evidence) and concluded that the defendant was 100% liable for the first plaintiff’s damages.

On the interpretation of the February 2019 order, the court set out the modern approach to interpretation as a unitary exercise considering text and context together. Against that framework, the court regarded the specific language of the order as decisive. It held that the defendant’s contention that the order reflected a full and final settlement was unsupported because the order expressly characterised the payment as an “interim payment”. The court reasoned that, had the payment been intended as full and final settlement of the second plaintiff’s claim, the order would have said so. It therefore treated the earlier order as interim and not dispositive of the final quantum.

Regarding the second plaintiff’s educational path and the duration of support, the court evaluated her evidence and accepted that she had completed matric, achieved a 67% average in her first year at CTU, was completing further requirements, and intended to proceed to a university course in graphic design. Although she could not explain precisely why results were delayed and did not know all university requirements, the court considered there was a real possibility that she would pass and progress to university study. On that basis, the court held that the second plaintiff was entitled to compensation for loss of support until she reached the age of 24 years.

On contingencies, the defendant argued that the actuary’s contingencies did not account for the first plaintiff potentially marrying in the future and for possible future assistance by the deceased to his adult son. The court disagreed. It considered the first plaintiff’s age (57) and her evidence that she did not intend to marry or have a partner. The court further reasoned that the general future contingency of 15% is designed to account for uncertainties that cannot be predicted with certainty, including prospects such as a future partnership or remarriage, and other contingencies. It therefore accepted the contingency approach adopted.

Outcome and Relief

The court granted judgment in favour of the plaintiffs and ordered the defendant to pay R820 204.00 to the first plaintiff and R552 050.00 to the second plaintiff.

The court ordered that interest would run at the prescribed mora interest rate from 14 days after the date of the order if the capital amounts were not paid within 180 days of the order.

The defendant was ordered to pay the plaintiffs’ costs of action, including the cost of obtaining the actuarial report, with such costs to be agreed or taxed. Further time periods were stipulated for payment of costs, and the court directed that all amounts payable be paid into the trust account of the plaintiffs’ attorneys (Anton Myburgh Attorneys), for the credit and benefit of the plaintiffs.

Cases Cited

Khunou & Others v Fihrer & Son 1982 (3) SA (WLD).

Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A).

Life Healthcare Group (Pty) Ltd v Mdladla & Another (42156/2013) [2014] ZAGPJHC 20 (10 February 2014).

Novartis v Maphil [2015] ZASCA 111.

University of Johannesburg v Auckland Park Theological Seminary and Another (CCT 70/20) [2021] ZACC 13; 2021 (8) BCLR 807 (CC); 2021 (6) SA 1 (CC).

Bothma-Botha Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk [2013] ZASCA 176; 2014 (2) SA 494 (SCA).

North East Finance (Pty) Ltd v Standard Bank of South Africa Ltd [2013] ZASCA 76; 2013 (5) SA 1 (SCA).

Coopers & Lybrand & Others v Bryant [1995] ZASCA 64; 1995 (3) SA 761 (A).

Rainy Sky SA v Kookmin Bank [2011] UKSC 50; [2012] Lloyd’s Rep 34 (SC).

Society of Lloyd’s v Robinson [1999] 1 All ER (Comm) 545.

Ekurhuleni Metropolitan Municipality v Germiston Municipal Retirement Fund [2009] ZASCA 154; 2010 (2) SA 498 (SCA).

Murray & Roberts Construction Ltd v Finat Properties (Pty) Ltd [1991] ZASCA 130; 1991 (1) SA 508 (A).

Hillas & Co Ltd v Arcos Ltd [1932] UKHL 2; 147 LTR 503.

Legislation Cited

No specific legislation was cited in the judgment text provided.

Rules of Court Cited

No specific rules of court were cited by number in the judgment text provided, although the court referred generally to the Rules of Court and their function in civil procedure.

Held

The court held that the striking out of the defendant’s defence did not, of itself, preclude the defendant from participating in the hearing, and that the defendant was entitled to cross-examine the plaintiffs’ witnesses provided it did not attempt to advance the struck-out defence or introduce a separate case.

The court held, on interpretation of the February 2019 order, that the payment of R632 988.00 to the second plaintiff’s attorneys was expressly described as an interim payment, and that the contention that it represented a full and final settlement was without merit.

The court held that the defendant was 100% liable for the proven damages of both plaintiffs, including the first plaintiff, and that the second plaintiff was entitled to compensation for loss of support calculated on the basis that support would have continued until she reached 24 years of age, given her likely progression through further study.

The court accepted the application of general future contingencies of 15%, holding that they adequately catered for uncertainties, including potential remarriage or partnership prospects, particularly in light of the first plaintiff’s age and evidence, and did not warrant adjustment on the grounds advanced by the defendant.

LEGAL PRINCIPLES

The judgment applied the principle that the rules of civil procedure are instruments for achieving justice and should not be treated as ends in themselves; accordingly, technical procedural objections should not defeat adjudication on the merits in the absence of demonstrated prejudice. Within that framework, the judgment treated the striking out of a defence as limiting the scope of a defendant’s participation, but not necessarily extinguishing the ability to participate in a way consistent with the court’s duty to reach a just outcome.

On interpretation, the judgment applied the approach that interpretation is a unitary exercise in which language and context are considered together from the outset, and that context and purpose are relevant whether or not language appears ambiguous. The court nonetheless emphasised that where the wording of an order is clear—here, the characterisation of payment as an “interim payment”—the plain language strongly informs the conclusion on the parties’ intention as reflected in the order.

In relation to loss of support and quantification, the court applied the principle that future uncertainties are managed through contingency deductions, and accepted that a general contingency (here, 15%) is intended to cover future eventualities that cannot be predicted with certainty, including changes in personal circumstances such as a new partnership or remarriage. The court also accepted that, for a dependent child pursuing education, the likely continuation of studies can justify loss of support being calculated up to an age consistent with completion of anticipated tertiary education, where the evidence supports a realistic prospect of progression.

Stevens and Another v Road Accident Fund (26017/2016) [2022] ZAGPJHC 864 (31 October 2022)