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[2020] ZAGPPHC 63
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L.M.M v Road Accident Fund (28602/2017) [2020] ZAGPPHC 63 (18 February 2020)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
(1)
REPORTABLE:
YES
/ NO.
(2)
OF INTEREST TO OTHER JUDGES:
YES
/ NO.
(3)
REVISED.
Case
No: 28602/2017
18/2/2020
In
the matter between:
L[….]
M[….]
M[…..]
Plaintiff
And
Road
Accident Fund
Defendant
JUDGMENT
Maumela
J.
1.
This
matter came before court in the opposed motion roll. The plaintiff,
L[….] M[….] M[….], a 36-year-old female
instituted action against the Road Accident Fund. She advanced a
claim based on loss of support. The claim is based on two legs.
The
First claim she lodged is in her personal capacity and the second is
on behalf of her minor children. The claims are constituted
as
follows:
The claim in her personal capacity:
1.1. Past Loss
of support at R 200 000-00.
1.2. Future loss of support at R 500
000-00.
The total claim in respect of the Plaintiff is: R 700
000-00.
2.
The
Second Claim Plaintiff lodged is on behalf of her minor children
K[….] D[….] M[….], a male who was born
on the
2
nd
of June 2001, and T[….] F[….] M[….], a male who
was born on the 16
th
of May 2006. It comprises of:
2.1. Past Loss of
support at R 300 000-00 and
2.2. Future loss of support at R 500
000-00.
The total claim in respect of Plaintiff’s minor
children is: R 800 000-00. This action is defended.
2.3. The
Plaintiff prays for the Defendant to pay the cost of
the suit.
BACKGROUND.
3.
On
the 23
rd
of March 2016 Plaintiff’s husband, D[….] K[….]
T[….], (the deceased), was a passenger in a white Nissan
Hardbody with registration numbers [….]. This vehicle collided
with a white Golf with registration numbers [….],
(the insured
vehicle). The collision took place at the intersection of the Old
Johannesburg Road (R101), and Escourt Road Hennopspark.
4.
The
Defendant does not dispute that this accident took place and that it
involved the vehicles mentioned above. Neither does it
dispute that
the Deceased was a passenger in the insured vehicle, and that he
succumbed to injuries he sustained in the collision.
The plaintiff
alleges that the collision was solely as a result of negligence on
the part of the driver of the insured vehicle.
5.
Plaintiff,
who is 36 years of age, contends that she was married to D[….]
K[….] T[….], who was 30 years of
age at the time he
died. She stated that her marriage to the deceased was in accordance
with Customary Law. She submits that she
and her two children were
dependent on the deceased. She alleges that as a direct result of the
collision, the deceased sustained
bodily injuries and he succumbed to
the said injuries. She submits that the deceased’s demise
deprived her and her minor
children of maintenance and support which
the deceased used to provide for them during his lifetime.
6.
While
the Defendant concedes that the accident was a result of negligence
on the part of the ‘insured driver’ it disputes
liability
to the plaintiff.
It
is not disputed that the accident happened at the place and time
indicated by the plaintiff. Neither is it disputed that the
deceased
succumbed to injuries sustained in that accident. It is not disputed
that the insured driver was negligent. What is disputed
is the
defendant’s liability. The Defendant disputes the claim for
loss of support for the Plaintiff and her children.
7.
The
Defendant disputes the validity of the customary marriage alleged by
the plaintiff. It contends that there was no valid marriage
between
the plaintiff and the deceased. The Defendant contends that the
Plaintiff and the Deceased did not fulfil all the requirements
for a
valid customary marriage as determined by the provisions of the
Recognition of Customary Marriages Act.
[1]
8.
The
Plaintiff submitted that the deceased is not the biological father of
her children. However, she submits that during the deceased’s
lifetime, the children stayed with her and the deceased in the same
house. She contends that the deceased would support her and
the
children. She contends that the deceased would have been legally
obligated to maintain her two minor children and for that
reason, the
children are entitled to support from the estate of the deceased.
9.
The
Defendant disputes that a valid customary marriage came into
existence as between the Deceased and the Plaintiff. The
Plaintiff
substantiates her contention that she was married to the deceased in
accordance with Customary Law. To that end, she submitted
the
following:
11.1.
Lobola
letters
supporting the existence of the marriage,
11.2. An ID copy,
11.3.
An affidavit in terms of section 19 (f).
11.4. Birth certificates
of the children.
10.
The
plaintiff attached Exhibits “A”, “B” and “C”.
These are documents that depict ‘
lobola
negotiations.
In them, the dates, the place and that attendants at the occasion of
the
lobola
negotiations
are reflected. The
Exhibits
attached are numbered
“
A”,
“B” and “C. The Plaintiff contends that these
exhibits constitute proof of the fact that members of
her family,
together with those of the family of the Deceased met on the 6
th
of February 2015, the 7
th
of March 2015 and the 17
th
of September 2015. She contends that the exhibits constitute proof of
the fact that discussions and negotiations concerning
lobola
were
held by individuals whose names stand listed in the exhibits.
THE ISSUES.
11.
The
court has to determine whether a valid customary marriage came into
existence as between the Deceased and the Plaintiff or not.
In the
event where the court finds that a valid customary marriage came into
existence as between the Deceased and the Plaintiff,
it has to
determine whether a legal duty to maintain the Plaintiff’s
minor children came to exist as against the deceased
and indeed, his
deceased estate.
12.
In
making that determination, the court has to determine the following
issues:
14.1. The validity of the customary marriage between the
plaintiff and
the deceased.
14.2. Whether the deceased was under a legal and an
enforceable duty
to support the plaintiff and her
children or not and
14.3. Whether the plaintiff has
locus
standi
to
institute a claim
for loss of support against the defendant as a result of
the death of the deceased.
13.
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.”
14.
The
Plaintiff proved that
lobola
negotiations
were held between members of her family and those of the Deceased.
She advanced exhibits “A”, “B”
and “C”
to substantiate her contention that
lobola
negotiations
were successfully held. The question arises whether the requirements
of a valid customary marriage were fulfilled.
In
section 3 of the Recognition of Customary Marriages Act
[2]
requirements for a valid customary marriage to come into existence
stand prescribed. In that regard, this section provides the
following:
“
Requirements
for validity of customary marriages:
3. (1) For a customary
marriage entered into after the commencement of
this Act to be valid-
(a).
The prospective spouses-
(i) must both be above the age of I8 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.”
15.
It
is not in dispute that the Plaintiff and the deceased were both above
the age of 18. The gathering where negotiations were conducted
concerning
lobola
was
in accordance with custom. The defendant disputes that a marriage in
accordance with custom was entered into between the Plaintiff
and the
Deceased. This is in direct contradiction to the contention by the
Plaintiff. It begs the question as to which version
between that of
the Plaintiff and that of the Defendant is true.
16.
The
Defendant contends that it contacted J[….] M[….] and
P[….] M[….], both of whom are cousins to the
deceased.
It stated that both of the deceased’s cousins confirmed that
the, deceased, and the plaintiff were once in a love
relationship
between the 2007 and 2000. However, they are adamant that the two
were not married to one another. The deceased’s
two cousins
also denied that the deceased had any children with anyone. They
stated that recently, the deceased got into another
love relationship
with one T[….]. D[….] D[….], a brother to the
deceased, also stated that the deceased and
the plaintiff were not
married to one another. He stated that after the Plaintiff and the
Deceased ended their love relationship,
the two of them were not even
in speaking terms.
17.
Daniel
denied that the deceased fathered any child with the plaintiff. The
Defendant raised the point that there is proof of the
fact that the
Plaintiff received child grants through the Department of social
development for her minor children, T[….]
M[….] and
D[….] M[….]. It was found that SASSA pays each of the
children an amount of R 360-00 per month.
The Defendant also states
that he made enquiries at the office of the Master of the High Court
where it was found out that the
Plaintiff and her children do not
feature in the estate file of the deceased.
EVALUATION.
18.
The
Plaintiff claims that she was married to the deceased in accordance
with custom. She produced Exhibits “A”, “B”
and “C” to substantiate her contention. The Defendant
disputes that the Plaintiff and the Deceased entered into a marriage
in accordance with custom. The Defendant is corroborated by two
cousins and a brother of the deceased. In that way, the versions
of
the plaintiff and the defendant are diametrically opposed to one
another. They are mutually destructive against one another.
19.
In
the case of Stellenbosch Farmers' Winery Group Ltd and Another v
Martell
et
cie
and
Others
[3]
, the court had to deal
with versions by the opposing parties which were mutually exclusive
to one another. The court stipulated
an approach that should find
application in such instances. In that regard the court stated the
following:
“
To
come to a conclusion on a disputed issue a court must make findings
on:
(a). The credibility of the various factual witnesses;
(b).
Their reliability; and
(c). The probabilities.
Where it
concerns (a), the court’s finding on the credibility of a
particular witness will depend on its impression about
the veracity
of the witness. That in turn will depend on a variety of subsidiary
factors, not necessarily in order of importance
such as:
(i). The
witness’s candour and demeanour in the witness box;
(ii).
His bias, latent or blatant;
(iii). Internal contradictions in
his evidence;
(iv). External contradictions with what was pleaded
or put on his behalf, or
with established facts or with his own extra curial statement or
actions;
(v). The
probability and/or improbability of particular aspects of his
version;
and
(vi). The
calibre and cogency of his performance
compared to that of other witnesses testifying about
the same incident or events.
As to (b),
witness' reliability depending, apart from factors mentioned under
(a)(ii), (iv) and (v), on (i) opportunities he had
to experience and
observe event in question and (ii) quality,
integrity
and independence of his recall thereof -
As to (c), this
necessitating analysis and evaluation of probability or improbability
of each party's version on each of disputed
issues - In light of its
assessment of (a), (b) and (c) court will, as final step, determine
whether party burdened
with
onus of proof succeeded in discharging it - Hard case occurring
where credibility findings compel court in one direction
and its
evaluation of general probabilities in another - Latter becoming less
convincing where former more so - Probabilities prevailing
where all
factors equipoised.
20.
The
plaintiff produced exhibits, Annexure “A”, “B”
and “C”, which entail
lobola
negotiations.
The Defendant advanced no evidence to disprove the authenticity of
Exhibits “A”, “B” and “C”.
On the
other hand, Jeanette Mashilo, a cousin to the deceased contends that
the deceased never got married to the plaintiff. She
is corroborated
by one other cousin of the Deceased and one brother.
21.
In
this case, the Exhibits advanced purport to prove that meetings were
held between members of the family of the deceased and those
of the
family of the applicant. This culminated in a meeting which
lobola
was
paid to the full on 19 September 2015. Be that as it may, the payment
of
lobola
is
not a requirement for a valid customary marriage to come into
existence. In some of the cases, a mere agreement on
lobola
suffices.
See
Matsoaso
v Roro
[4]
22.
There
is no evidence proving that celebrations were held or that the bride
was accepted or received within the family of the deceased.
Although
an annexure purporting to contain the
lobola
agreement
was produced, consent by the guardian of the applicant was not
proven. However, the applicant was already a major and
therefore,
proof of consent by the guardian was not a requirement. Neither was
incorporation of the bride into the groom’s
family proven. In
the case of
Nhlapo
v Mahlangu
[5]
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.
23.
It
is 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
[6]
.
The question arises whether a customary marriage can be said to have
come into existence between the Plaintiff and the Deceased
despite
the fact that this marriage was not celebrated in terms of Section 3
(b) of the
Recognition
of Customary Marriages Act
[7]
.
24.
In
the SCA judgment of
Mbungela
& Another v Mkabi & Others,
[8]
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. 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
.”
[9]
25.
It
is clear that there
are
individuals within the family of the Deceased who do not recognize
the customary marriage he entered into together with the
Plaintiff.
Some of them go as far as to vouch that the Deceased never entered
into a customary marriage with the Deceased while
there are Exhibits
that reflect a picture clearly different form their contention.
26.
The
Recognition
of Customary Marriages Act
was
promulgated with the objective of the recognizing customary
marriages. This is in line with according all humans, especially
women the human dignity provided to them in the constitution. The
court finds that a customary marriage came into existence between
the
Plaintiff and the Deceased.
OBLIGATION
TO MAINTAIN.
27.
It
is trite that in South Africa, parents owe a duty to maintain their
children. That duty arises by operation of the law.
[10]
The minor children in this case had no blood relationship with the
Decease.
In
the case of
Maneli
v Maneli
[11]
,
the magistrate referred the case to the constitutional for that court
to determine the correctness of her conclusion that the
respondent
had a legal duty to maintain the minor child he and the applicant had
adopted in terms of Xhosa customary law; and her
finding that in that
matter, she was entitled to develop the Common Law in terms of
section 39(3) of the Constitution of the Republic
of South Africa,
1996.
28.
The
Defendant also raises the point it made enquiries at the office of
the Master of the High Court where it was found out that
the
Plaintiff and her children do not feature in the estate file of the
deceased. Estate files are often opened at the instance
of the next
of kin of deceased persons. It is not unheard of that relatives of a
deceased person ignore, shun, exclude scare away
individuals they
consider undesired while they pursue the devolution the estate.
Failure by a woman to feature in the file pertaining
to a deceased
estate does not necessarily imply that the woman who is so excluded
had no relationship with the deceased.
29.
It
is trite that children in a customary marriage can benefit from the
estate of an adoptive parent.
Section
242 (3) of the Children’s Act outlines the effects of an
adoption order. In that regard this section provides the
following:
242 (3). “
An
adopted child must for all purposes be regarded as the child of the
adoptive parent and an adoptive parent must for all purposes
be
regarded as the parent of the adopted child.
”
30.
The
late Professor Maithufi, a widely acknowledged expert in African law
outlined customary adoption. He outlined the process of
adoption as
follows:
“
The
relatives are called to a meeting where the envisaged adoption is to
take place. After this meeting, the adoption has to be
reported to
the traditional leader of the area or his or her representative. The
formalities relating to the agreement between
the families of the
adopted child and the adoptive parent(s), as well as the report to
the traditional leader or his or her representative
are aimed at
indicating that the adopted child has been formally transferred from
one family to another ....Even in cases where
adoption was not
reported to the traditional leader, the adoption would still be valid
if due publicity was given to the process
and there was agreement
between the families of the adopted child and the adoptive parent(s).
The validity of an act of adoption
in terms of customary law largely
depends upon the agreement between these families. A traditional
ceremony which may involve the
slaughtering of small livestock is
normally held to mark the adoption.”
31.
Initially,
South African Case Law dictated that where no biological relationship
existed, no legal duty to maintain arose unless
a formal adoption was
done.
It
is undisputed that the minor children in this case were not formally
adopted by the Deceased. That raises the question whether
a legal
duty could have arisen for the Deceased to maintain the minor
children in this case. In her article
[12]
.
Associate
Professor
Anne
S Louw
[13]
, stated that the
South African courts have in recent times shown an increased
willingness to grant
de
facto
adopted
children some, if not all, the rights reserved for formally adopted
children. She contended that based on the trends apparent
from
judgments, she concludes in her article that a doctrine of
de
facto
adoption
has evidently been created in the context of founding a duty of
support.
32.
Besides;
in the case of
Thibela
v Minister van Wet en Orde
,
the court considered an agreement in terms of which a husband paid
lobola
for
his wife and her “illegitimate” son sufficient to create
a duty of support between the husband and the “illegitimate”
son in terms of Pedi custom. Expert evidence attested to the fact
that such payment would result in the child becoming a “child”
of the husband. The court consequently held that the damages suffered
by the child arising from the death of his deceased “father”,
who could no longer fulfil his duty of supporting him, must be
included in the mother’s claim for damages. As in the
Kewana
-case,
the court in
Metiso
v Padongelukkefonds
was, called upon to decide whether a customary law adoption was valid
and thus created a legally recognizable duty of support for
purposes
of a claim against the Road Accident Fund. The court held that the
customary law adoption should in the interest of the
children be
considered valid despite its possible lack of publication as
prescribed by custom.
33.
The
court concluded that the deceased’s promise to care for the
children, even if not a completed adoption in terms of customary
law,
was sufficient to create a legally recognizable duty of support
towards the children – if not in terms of the common
law then a
logical extension thereof. Bertelsmann J argued that to deny the
legality of such an undertaking would be contrary to
– “the
new ethos of tolerance, pluralism and religious freedom which had
consolidated itself in the community even
before the formal adoption
of the interim Constitution on 22 December 1993”.
34.
In
the case of
Taljaard,
Johanna Marinda N.O. v Road Accident Fund
[14]
,
Sutherland J cited the case of
Metiso
v Padongeluksfonds
[15]
where Bertelsmann J addressed a claim against the RAF arising from
the death an uncle of certain children who he had supported.
After
their father died and their mother had deserted them. A formal
adoption according to the custom of the community had not
occurred
because the consent of the absent mother was a prerequisite and she
was unreachable. It was contended on behalf the children
that the
uncle had agreed to maintain them. The court resolved the problem by
two finding. First, that a
de
facto
adoption
should be acknowledged and that the formal defects be overlooked and,
secondly, that a binding offer to support the children
was sufficient
to ground a duty of support because to do so was consistent with the
morality of society
[16]
. In
MB
v NB
[17]
,
Brassey AJ dealt with whether or not after a divorce an ex-husband
had a duty of support towards the children of his former wife,
who
had been widowed. During the marriage the ex-husband had related to
the children as a father. At issue was whether he was obliged
to
continue to contribute to the payment of the school fees of the
children. At [22] Brassy AJ took the view that it was
unnecessary to construe a quasi-adoption because it was sufficient
that by making the promise to pay the husband was bound.
35.
The
court finds that where the deceased maintained the Plaintiff and her
minor children during his life-time, a legal duty to maintain
the
minor children came into existence against the deceased. Now that the
Deceased perished as a result of a wrong committed by
the driver of
the ‘insured vehicle’ the provisions of
Section 17
(1)
(b) of the
Road Accident Fund Act 1996
[18]
kicks into operation. This section imposes a duty on the Road
Accident Fund to compensate persons adversely affected as a result
of
an accident caused by an act of omission on the part of an ‘insured
driver’.
36.
The
plaintiff in this case indicated the amounts of the claims she brings
against the Defendant. The Defendant did not bring evidence
to oppose
the amounts indicated by the Plaintiff in the claims. All that the
Defendant did was to dispute liability. In the event
where the
Plaintiff proves its case against the Defendant, the claims shall be
granted in the amounts indicated by the Plaintiff.
37.
Considering
the evidence in this case, the court finds as follows:
36.1. That
a customary marriage came into existence
between the Plaintiff and the Deceased.
36.2. That a legal duty
came into existence for the Deceased
to maintain the Plaintiff and her minor children.
37.3.
That there is a legal duty upon the Defendant to
compensate the Plaintiff and her minor children for the
loss they suffered as a result of the collision.
In
the result, the court makes the following order:
ORDER.
39.1.
The Defendant is ordered to pay to the Plaintiff an
amount of
R
700 000-00 being for past and future loss
of support for the Plaintiff.
39.2.
The Defendant is ordered to pay to the Plaintiff an
amount of
R
800 000-00, being for past and future loss
of support for the Plaintiff’s minor children; T[….]
M[….] and
D[….] M[….].
39.3.
The Defendant is ordered to pay the costs of the suit.
Maumela
J.
Judge of the High Court of South Africa.
REFERENCEE
For
the Plaintiff: Adv. C Mosala
Instructed
by: Mokgatle
Lesole Attorneys
For
the Defendant: Adv. J Themane
Instructed
by: Ningiza
Horner Inc.
[1]
.
Act No. 120 of 1998.
[2]
.
Supra.
[3]
.
2003 (1) SA 11
(SCA).
[4]
.
[2011] 2 All SA 324
(GSJ), at paragraph 18.
[5]
.
(59900/14); [2015] ZAGPPHC 142.
[6]
.
Supra.
[7]
.
Supra.
[8]
Mbungela &
another v Mkabi & others
(820/2018)
[2019] ZASCA 134
(30 September 2019)
[9]
Mbungela &
another v Mkabi & others
at
para 17.
[10]
.
See
Vermaak v Vermaak
1945 CPD 89
and
In Re
Estate Visser
1948 (3) SA
1129 (C).
[11]
.
[2010] JOL 25353
(GSJ).
[12]
.
A
de
facto Adoption Doctrine for South Africa
[13]
.
Department of Private Law University of Pretoria BA BIuris LLB LLD.
[14]
.
Case No: 2013/22829.
[15]
.
2001(3) SA 1142 (T)
[16]
.
At page 1150G- H.
[17]
.
2010 (3) SA 220 (GSJ)
[18]
.
Act No 56 of 1996.