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[2021] ZAGPPHC 367
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T.Z obo Minors v Road Accident Fund (29192/2017) [2021] ZAGPPHC 367 (22 June 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case
No:
29192/2017
In
the matter between:
T[…]
Z[…] obo Minors
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGMENT
TSATSI
AJ
INTRODUCTION
1.
This application has been heard in a virtual hearing via
Microsoft Teams.
2.
The Plaintiff, a 35-year-old female, instituted a claim
for
loss of support in both her personal and representative capacities
against the Road Accident Fund.
3.
The Plaintiff claims support on behalf of four of her children
named:
D[…], H […], A […] and W […].
4.
The Plaintiff’s husband SB […] was killed in a
motor
vehicle accident that occurred on 24 May 2016 whilst he was driving
his motor vehicle. The deceased was a mining operator
earning
R27 906.24 per month.
5.
Both the issue of merits and quantum remain in dispute.
BACKGROUND
6.
The Plaintiff deposed to an affidavit and stated that on or
about 24
May 2016 at or near R555 (Old Orgies Road), Witbank the deceased was
driving a motor vehicle with registration letters
and numbers […]
when a motor vehicle with registration letters and numbers [….]
when a motor vehicle with registration
letters and numbers (herein
referred as the first insured motor vehicle) there and then
driven by one [….] herein
after referred to as the first
insured driver, and motor vehicle with unknown registration letters
and numbers [herein after referred
to as the second insured
motor vehicle) there and then driven by unknown driver
(herein after referred to as
the second insured driver) caused a
collision with the deceased’s motor vehicle.
7.
In its plea the Defendant submits
that it bears no knowledge of the collision that caused the
deceased’s death. The Defendant
also submits that it bears no
knowledge of the loss of support by the Plaintiff and her children.
The Defendant requested the Plaintiff
to prove her allegations.
8.
The
Plaintiff stated that she was married to the deceased who was 43
years at the time of his death. The Plaintiff alleged that
she was
married to the deceased in accordance with customary law.
9.
She further stated that the
deceased’s death deprived her and her three minor children one
being an adult child, of maintenance
and support which the deceased
used to provide for them during his lifetime.
10.
The Plaintiff did not plead the
validity of her alleged customary marriage in her particulars of
claim, except to mention that she
and her children were
financially dependent on the deceased. The first time the
Plaintiff’s customary marriage
was mentioned was in the heads
of argument. The Plaintiff ought to have pleaded her customary
marriage in her particulars of claim.
As a result, the Defendant did
not comment on the issue of the Plaintiff’s customary marriage.
11.
The
Plaintiff
attached the following documents to the reply in terms of Rule 36
(4):
Lobola
letter
dated 6 December 2014 supporting the existence of the alleged
customary marriage, her ID copy, an affidavit in terms of section
19
(f) and Birth certificates of the children and the deceased’s
death certificate.
ISSUES
12.
The issue in dispute is both merits and quantum and whether or not
the Plaintiff
is entitled to loss of support both in her personal
capacity and on behalf of her children, one being an adult.
13.
The other issue is whether a valid customary marriage existed between
the Plaintiff
and the deceased. In the event that the Court finds
that there was a valid customary marriage between the Plaintiff and
the deceased
the Court has to determine whether the deceased had a
legal duty to support the Plaintiff’s children.
14.
In section 1 (iv) of
the
Recognition
of Customary Marriages Act: (Act No. 120 of 1998):, the following
definition of “lobolo” is provided:
S
1(iv): “lobolo” means the property in cash or in kind,
whether known as lobolo, bogadi,bohali, xuma; lumalo, thaka,
khazi,
magadi; amabheka; or by any other name, which a prospective
husband or the head of his family undertakes to give to
the head of
the
prospective
wife’s family in consideration of a customary
marriage.”
15.
Although the
Plaintiff alleges that she was married to the deceased according to
customary marriage, the marriage was never registered.
The lobola is
signed by the representatives of both families. The letter from the
tribal authority confirming the marriage of the
Plaintiff to the
deceased is also attached to the Court papers.
16.
In addition to
the above, in an effort to proof the Plaintiff’s marriage to
the deceased three affidavits were attached. One
is from the
neighbour, the second one is from the uncle of the deceased and third
one is from the. Plaintiff’s mother all
confirming that the
Plaintiff was married to the deceased according to customary
marriage.
17.
Section 3 of the
Recognition
of Customary Marriages Act number 120 of 1998 provides that for a
customary marriage entered into after this Act to
be valid the
following requirements had to be complied with:
(a).
The prospective spouses-
(i)
must both be above the age of 18 years; and
(ii)
must both consent to be married to each other under
customary
law: and
(b).
the marriage must be negotiated and entered into or celebrated in
accordance with customary law.”
18.
It is not in dispute
that both the Plaintiff and the deceased were over 18 years, they
consented to be married to each other and
the marriage was negotiated
into by both families as demonstrated by the lobola letter.
THE
LAW
Customary
marriage
19.
In
terms of
section
17
of
the
Road
Accident Fund Act 56 of 1996
the
Respondent is obliged to compensate any person for any loss or damage
which the third party has suffered as a result of any
bodily injury
to himself or herself or the death of or any bodily injury to any
other person, caused by or arising from the driving
of a motor
vehicle by any person at any place within the Republic, if the injury
or death is due to the negligence or other wrongful
act of the driver
or of the owner of the motor vehicle. The RAF Act does not therefore
preclude the Plaintiff from bringing
a claim for loss of
support.
20.
In the case of
Nhlapo
v Mahlangu
59900/14);
[2015] ZAGPPHC 142,
the
court stated that the incorporation of the bride into the family of
the groom is one of the requirements for valid customary
marriage to
come into existence. In casu the customary marriage between the
Plaintiff and the Deceased was not ‘celebrated
in
accordance with custom’ as provided in
Section
3 (1) (b)
of the
Recognition of
Customary Marriages Act (see
Nhlapo
(supra).
21.
The marriage between the
Plaintiff and the Deceased was not celebrated in terms of
Section 3 (b) of the
Recognition
of Customary Marriages Act.
22.
In
Mbungela
& Another v Mkabi & Others
,
(820/2018)
[2019]
ZASCA 134
(30
September 2019)
the
Court was asked to decide whether the appellant and the deceased had
complied with provisions of S 3(1) (b) of the Customary
Marriages Act
and concluded a valid customary marriage, despite the fact that the
deceased’s family did not hand her over
to the Respondent’s
family in accordance to custom.
23.
The SCA noted
that this provision does not restrict itself to a specific list of
requirements which must be complied with for a
valid customary
marriage to exist. In this case the court stated that this is so
because
“
customary
law is a dynamic, flexible system, which continuously evolves within
the context of its values and norms, consistently
with the
Constitution, so as to meet the changing needs of the people who live
by its norms. The system, therefore, requires its
content to be
determined with reference to both the history and the present
practice of the community concerned…Thus, the
legislature left
it open for the various communities to give content to s 3(1) (b) in
accordance with their lived experiences
.”
24.
The Court find
that customary marriage came into existence between the Appellant and
the deceased. The above facts are similar to
the facts
in
casu.
25.
The
recognition Act does not specifically prescribe the manner in which
negotiations must be undertaken or how the marriage must
be entered
into or celebrated. What is clear is that for a customary marriage to
be valid, it must be negotiated and entered into
or celebrated. How
this is to be done is not specifically set out in the Recognition Act
but on the practices of each particular
tribe. A Court in each
specific case must consider the practices of the tribe of the
parties. In fact, a factual determination
must be made to reach a
finding whether the requirement has been complied with (see
Msutu
v Road Accident Fund
(18174/14)
[2011] ZAGPPHC 232 (10 July 2011: para: 31).
26.
It is a fact that the customary marriage
between the Plaintiff and the Deceased was not ‘celebrated in
accordance with custom’
as provided in
Section
3 (1) (b)
of
the
Recognition
of Customary Marriages Act (see
Nhlapo
(supra)
.
Legal duty to
support the Plaintiff and her minor children
27.
The question that arises is whether or not
the deceased had a legal duty to support the children of the
Plaintiff including one
adult child who are said to be also the
children of the deceased.
28.
In
the test laid down in
Paixao
v RAF
2012
(6) SA 377
(SCA)
,
that court gave recognition to the principle that two persons in a
permanent life partnership could enjoy reciprocal duties of
support,
despite the absence of a formal marriage relationship. Such a
duty of support could derive from a tacit agreement.
At [29] Cachalia
JA held:‘
I
appreciate that it is not always easy for defendants in the fund's
position to refute evidence of a plaintiff dependant's assertion
that
the deceased had undertaken a duty to support him or her. But this
concern, I think, overstated. A plaintiff's assertion,
without more,
that he or she was in 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 was 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.
Courts frequently undertake
this exercise without much difficulty — as this and other cases
such as Amod, Satchwell and Du
Plessis demonstrate. Life partnerships
therefore do not present exceptional evidential difficulties for
defendants.’
29.
Metiso v
Padongeluksfonds 2001(3) SA 1142
T)
at
1150G-H, Bertelsmann J found in favour of claimants who had lodged a
claim for loss of support against RAF arising from the death
of an
uncle of certain children whom he had supported. The Court found that
a binding offer to support the children were sufficient
to ground a
duty of support because to do so was consistent with the morality of
society.
30.
Sutherland
J in
JT
v RAF
2015
(1) SA 609
(GJ)
page
616 at para 26 held authoritatively as follows:“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 of reciprocal nature 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 a relationship
akin to that of a
family. This norm is not parochial but rather is likely to be
universal, it is certainly consonant both with
the norms derived from
the Roman-Dutch tradition, as alluded to by Cachalia J in Paixao
v RAF supra and, no less,
from the norms derived from African
tradition, not least of all exemplified by the spirit of Ubuntu, as
mentioned by Dlodlo J in
Fosi v RAF supra”
.
31.
In
M
v Road Accident Fund
(28602/2017) [2020] ZAGPPHC 63 (18 February 2020), the Defendant was
ordered to pay t
he
Plaintiff an amount of
R 700 000-00 being for
past and future loss of support for the Plaintiff. In
addition, the Defendant was ordered to pay
the
Plaintiff an amount of
R 800 000-00, being for
past and future loss of support for the Plaintiff’s minor
children.
32.
In
Sizani
v Road Accident Fund
(1895/2016) [2020] ZAECMHC 4 (13 February 2020), the Plaintiff was
awarded an amount of
R
206, 856.00 for loss of support arising from the untimely death of
her son.
Duty
to support an adult child
33.
In terms of section
17 of the Children’s Act 38 of 2005,
a
child whether male or female becomes a major upon reaching the age of
18 years.
34.
In
Fosi
v RAF
[2007]
JOL 19399
(C)
Dlodlo J at para [11] referred to"[11]The test as set out
in
Smith
v Mutual & Federal Insurance Co Ltd
1998(4)
SA 626 (C) at 6320-E as follows: "To be indigent means to be in
extreme need or want whereas to be poor means
having few things or
nothing. Accordingly, when the plaintiff pleads indigence, it is not
sufficient to show that the plaintiff
lives on very little or
nothing
(vide
World Book dictionary).
The
plaintiff must prove something more. The plaintiff must prove that
there is an extreme need or want for the basic necessities
of life."
35.
Section 23
(2) of the
Road Accident Fund Act provides
that
“
Prescription of a Claim for compensation
referred to in subsection (I) shall not run against, a minor …….(3)
Notwithstanding
subsection (1), no claim which has been lodged in
terms of
section 24
shall prescribe before the expiry of a period of
five years from the date on which the cause of action arose
”.
Costs
of funeral expenses
36.
Section 17
of the
Road Accident Fund Act provides
that, t
he
liability of the Fund or an agent to compensate a third party for any
loss or damage contemplated in
section 17
which is the result of the
death of any person shall in respect of funeral expenses be limited
to the necessary actual costs to
cremate the deceased or to inter him
or her in a grave.
37.
It
was held in
Young
v Hutton
1918
WLD 90
at
91, on the strength of Grotius’
Introduction,
29
that
a person improperly causing the death of another is liable to the
heir of the latter for funeral expenses. In
Rondalia
Assurance Corporation of SA Ltd v Britz
1976
(3) SA 243
(T)
at 245H-246E Margo J, after surveying the authorities, came to the
conclusion that where the heirs have laid out funeral expenses
on
their own account, an action to recover such expenses lies at their
suit. This assertion was not attacked on appeal and
this Court
is in agreement with such assertion.
38.
In K
eforilwe
v RAF
281/13)
[2015] ZANWHC 74
(12 November 2015)
the Plaintiff was
awarded
an
amount of R17 510-00 for funeral expenses. Whereas in
Makangu
and Another v Road Accident Fund
(30137/2003)
[2007]
ZAGPHC 31
(18 April 2007) the Plaintiff was paid
R1
688,81 for funeral expenses.
39.
Having
considered
section 17
of the Road Accident Fund and case law with
regard to funeral expenses, I am of the view that an amount of
R10 000.00 (ten
thousand Rand) is reasonable in the
circumstances.
APPLICATION
OF THE LAW TO THE FACTS
40.
In light of the preceding, it is my
considered view that customary marriage between the Applicant and the
Deceased came into existence.
41.
It is trite that the contract of
a marriage gives rise to a reciprocal duty of support and that a
surviving spouse is entitled to
bring a claim for loss of support
arising out of the death of her spouse.
42.
In addition, in casu, the children of the
Plaintiff who are said to be the children of the deceased were also
entitled to
support from the deceased.
43.
The
claim for the adult child has not prescribed in terms of
section 23
(2) and (3) of the Road Accident Fund.
44.
The
Defendant’s liability with regard to funeral expenses is
limited to
the
actual costs of placing the remains of the
deceased
human
being
into
the
ground, an earth burial. The Defendant is not liable for other
funeral expenses except as provided in terms of
Section
17
of the
Road Accident Fund Act.
45.
It
is trite that contingency deductions are within the discretion of the
Court and depends upon the judge’s impression of the
case.
Having considered case law, read documents filed of record and
submissions made by the Plaintiff’s Counsel I am of
the
considered view that the below order is reasonable.
46.
I
accordingly mark the draft order "X" and it is made an
order of Court.
E.K
TSATSI
ACTING
JUDGE OF THE HIGH COURT
For
the Plaintiff:
Adv.
T.E. Tlhokwe
Instructed
by:
Motimele
Inc.
For
the Defendant
:
No appearance
Date of
Hearing
9 June 2021
Date
of
Judgment:
22 June 2021
This
judgment was handed down electronically by circulation to the
parties’ representatives via email and by uploading on
case
lines.