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[2019] ZAGPPHC 148
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Lesia obo A.N.L v Road Accident Fund (2016/1728) [2019] ZAGPPHC 148 (13 May 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
CASE NO: 2016/1728
13/5/2019
In
the matter between:
REFILOE
HOPEWELL LESIA obo
A[….]
N[….] L[….]
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
JUDGMENT
MOKOSE
J
[1]
This
is an action by the plaintiff in both her personal capacity and in
her representative capacity on behalf of her minor child
for damages
for loss of support suffered as a result of the death of the deceased
in a motor vehicle accident on 1 March 2014.
[2]
On
6 December 2016 and by agreement between the parties, Pretorius J
granted an order in favour of the plaintiff that the defendant
was
liable to pay one hundred per cent (100%) of the plaintiff's proven
or agreed damages. The matter on hand is in respect of
the quantum of
the plaintiffs claim in the sum of R3 324 759,00 (three million three
hundred and twenty-four seven hundred and
fifty-nine rand).
[3]
Counsel
for the plaintiff advised the court at the commencement of the matter
that the defendant conceded that the deceased had
a duty to support
the minor child. The parties then applied for a further separation in
terms of Rule 33(4) which order was granted.
[4]
The
issue left for the court to determine was the existence of a duty of
support between the plaintiff and the deceased in the absence
of a
formal marriage relationship having been concluded between them.
[5]
The plaintiff testified in her own
matter. She testified that she and the deceased had started dating in
2009 at a time when she
had a one-year old child, L [….], born
of a previous relationship. After a while, the parties began residing
together in
Springs. They were both employed at the time and they
shared all household expenses.
[6]
In about 2011 when the parties had begun
to live together, the deceased asked the plaintiff to marry him and
the engagement proposal
was accepted. It was at this time that she
realised that she was expecting a baby. The plaintiff testified that
in her excitement
she told her parents who were happy for her but
cautioned that lobola negotiations must take place. She testified
further that
they had intended tog et married during 2012 but that
she was retrenched during September of that year.
[7]
The plaintiff testified further that
they relocated from Springs to Duduza after she had been retrenched
to save costs as the rentals
were cheaper. The deceased continued to
pay the rent and all expenses of the household. He would also give
her money when he had
extra for her personal use whilst she would
attend to the household chores.
[8]
During 2013 a misunderstanding ensued between the parties resulting
in the deceased
moving from the common home. At that time, the
plaintiff then attended at the Magistrate's Court to obtain a
maintenance order
against the deceased. She testified further that
they resolved their differences and reconciled. But when she wanted
to cancel
the maintenance application, she was advised by a
maintenance officer that should the deceased fail to maintain the
minor child,
it would be difficult to obtain such order as she had
previously cancelled the application. Accordingly, she proceeded with
the
process and obtained the order which she had not enforced at all
after it was granted.
[9]
In cross-examination, the plaintiff confirmed that she had been
introduced to the
deceased family. She had also accompanied the
deceased's family to identify him at the mortuary on his death. She
conceded that
she had made a claim for maintenance for A[….]
N[….] only as that was the deceased's only child with her. She
did
not claim maintenance for herself as she was not married to him
at that time.
[10] The
defendant closed its case without calling any witnesses.
[11]
Counsel for the plaintiff brought to the
court's attention the unreported case of Cawood and Another v The
Road Accident Fund
[1]
in which the court concluded that:
"In the absence of any
suggestion or contention put to the plaintiff regarding her
credibility, the court a quo should have
proceeded from the premise
that the plaintiff's evidence constituted the proven facts unless the
trial court rejected her evidence
as incredible or inherently
improbable to such a degree that it
could
not be accepted. No such finding was made by the court
a
quo. In the absence
of such
a
finding
the court aquo
should
have determined the probability of a tacit agreement existing between
the plaintiff and the deceased as far as the deceased's
maintenance
of the plaintiff, in her own capacity, was concerned."
[12]
In the matter on hand, the plaintiff's
evidence stands uncontested. It is evident that the relationship
between the plaintiff and
the deceased was an intimate one for which
no other competent witness was called to testify and place
contradictory evidence before
the court.
[13]
Accordingly, the plaintiff's evidence
stands uncontested and is considered as conclusive in the
circumstances.
[14]
A claim for loss of support on the death
of a breadwinner is recognised by the common law as a "dependence"
action. The
object of this remedy is to place the dependants of the
deceased in the same position they would have been in, but for the
death
of the deceased. This action is
sui
generis
as the dependants derived
their right not through the estate of the deceased but from the fact
that they have suffered loss by the
death of the deceased for which
the defendant is liable.
[15]
The plaintiff must show that he has a
right that is worth protecting to satisfy the requirements for a
claim for loss of support.
The court held in the matter of Paixao and
Another v Road Accident Fund
[2]
that to prove the existence of a life partnership or relationship
worthy of the law's protection, the claimant needs to demonstrate
that the partnership had similar characteristics, particularly a
reciprocal duty of support, akin to a marriage. On appeal, the
court
held that a tacit agreement between parties to a heterosexual life
partnership established a reciprocal duty of support worthy
of
protection by the law. The SCA's decision was influenced by several
factors including the
boni mores
of
society, which the court noted require the courts to make a policy
decision based on the recognition that social changes must
be
accompanied by legal norms to encourage social responsibility. The
court held that the relationship amounted to more than a
mere promise
to marry and the question to be decided was whether or not the nature
of the relationship between the parties gave
rise to a reciprocal
duty of support that the law must protect.
[16]
Counsel for the plaintiff argued that
the matter on hand is one which is stronger than the Paixao case in
that the plaintiff testified
that there was an express oral agreement
between her and the deceased to maintain one another which was
supported by the deceased's
conduct towards her. They had also
promised to marry one another. Furthermore, the deceased was working
towards paying lobola to
her family.
[17]
Counsel for the defendant disagreed with
the view of the plaintiff that the Paixao case was on point. He was
of the view that the
only evidence of an existence of a duty of
support on the part of the deceased towards the plaintiff was that
they lived together
and that they intended to get married. He was of
the further view that the payment of rent and the purchase of
groceries should
be regarded as ordinary or normal support.
[18]
It is evident from the evidence before
the court that the plaintiff had been in a relationship with the
deceased for a long period.
The plaintiff alleges that the deceased
supported her and her minor children and in particular the child from
a previous relationship.
She has also explained that they had
intended to marry and why the marriage had not taken place. I am
satisfied that she was an
honest witness whose answers explained the
relationship between the parties satisfactorily.
[19]
Counsel for the plaintiff appointed two
counsel and as such seeks the costs of two counsel should the court
find for her. Counsel
for the defendant was of the opinion that there
was no need for two counsel to be appointed.
[20]
The determination of costs rests within
the discretion of the court. This includes the costs of the
employment of two counsel. In
exercising this discretion the court
determine whether it was a 'wise and reasonable precaution' on the
part of the plaintiff to
employ the services of two counsel.
[3]
Factors to be taken into account in determining whether it was indeed
a reasonable and prudent precaution include the importance
of issues
to be determined, the complexity of the legal and factual issues, the
quantum of the claim and the volume of evidence.
[21] The
plaintiff was of the view that it was a wise and reasonable
precaution to employ two counsel as
the importance of the matter
could not be underestimated as both the mother and the minor child
(the plaintiff in her personal
capacity and on behalf of the minor
child) had lost the support they would have had but for the tragic
death of the deceased. Furthermore,
the quantum was significant and
at the pre-trial conference which was held a couple of days before
the trial, the defendant's legal
representatives disputed the
application of the order to the plaintiff in her personal capacity.
[22]
Counsel for the defendant was of the view that the matter in casu was
not a complex one. Quantum was
not being dealt with and as such there
was no necessity for the matter to be burdened with two counsel.
[23]
Having taken into account the arguments of both counsel in respect of
the costs of suit, I am of the
considered opinion that there was no
need for the employment of two counsel.
[24]
Accordingly, the following order is granted:
The draft order attached hereto
and marked
"X" is
incorporated herein and made an
order of court.
MOKOSE
J
Judge
of the High Court
of
South Africa Gauteng
Division,
Pretoria
For the Plaintiff:
Adv C Woodrow
Adv JL Verwey
instructed by
Frans
Rabie Attorneys
For the Defendant:
Adv OM Mulibana
instructed by
TM
Chauke Attorneys
Date of Hearing
: 29 April
2019
Date
of Judgement
: 13 May 2019
[1]
(A789/2016) [2018] ZAPPHC 581 dated
22
June 2018
[2]
2012 (6) S 377 (SCA)
[3]
Van Wyk v Rondalia
1967 (1) SA 373
(T)