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[2019] ZAGPPHC 245
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Sajini v Road Accident Fund (84816/2016) [2019] ZAGPPHC 245 (25 June 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED:
YES.
CASE NO: 84816/2016
25/6/2019
In the matter between:
N.E.SAJINI
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
COLLIS
J:
INTRODUCTION
[1]
The
plaintiff is suing the defendant, for loss of maintenance and support
arising from the death of Xolan iNgcefa
(the
deceased)
in a motor vehicle
collision on 26 May 2016. On the same day the deceased suffered
injuries and ultimately succumbed to his injuries.
BACKGROUND
[2]
At
the commencement of the proceedings the parties informed the court
that the dispute on the merits was resolved by way of a court
order
dated 30 May 2018. This court was therefore called upon to adjudicate
the amount of loss of support suffered by the plaintiff
as a result
of the death of her late husband which would render the defendant
liable in terms of
section 17(1)
of the Road Accident Fund Act 56 of
1996.
EVIDENCE
[3]
Ms.
Nthombizonke Sajini testified that at the time of the death of the
deceased, Mr. Xolani Ngcefa she was married to the deceased
in terms
of Customory Law. From this union two children, now both majors, were
born. Ms Sanjini testified that during the existence
of their
customary union, she never worked and was responsible for looking
after the children and doing household chores. It was
also her
testimony that she has never received any death benefit from the
employer of her late husband. She testified further that
when life
became tough to survive on the sole income of the breadwinner
deceased, she engaged her late husband's previous employer
requesting
employment and was fortunate that they offered her employment. She
took up this employment on 26 January 2017 and is
still to date
employed at the same company. Confirmation of such employment appears
in Exhibit A page 55. She concluded her testimony
by stating that she
has not remarried and considers such a possibility as remote as she
now even have grandchildren to look after.
[4]
During
cross-examination she testified that from her current income she
supports herself, her two major children and her grandchildren
as
both her children are unemployed. During cross-examination she
maintained that albeit that her husband at the time of his death
was
earning less than what she currently earns, life remains expensive to
maintain herself with the result that she can ill afford
to resign
her job. This then concluded her testimony.
[5]
No
viva voce evidence was presented on behalf of the defendant and as
such the evidence presented by the plaintiff remains uncontroverted.
By agreement between the parties, the actuarial reports prepared by
the respective actuaries was admitted into evidence and the
correctness of such reports confirmed.
[6]
At
the conclusion of the proceedings on 28 February 2019, the matter was
postponed
sine die
to
enable the defendant to obtain a revised actuarial calculation and
for the actuaries to file a joint minute. On 19 June 2019
counsel on
either side informed to the court that the defendant’s actuary
will not be able to furnish this court with a revised
actuarial
calculation as such revised calculation is dependable on a further
instruction to be obtained from the Road Accident
Fund, which
instruction has not been obtained. The court was further informed
that by agreement between the parties, that the actuarial
calculation
which the court should premise its' decision on, should be the
calculation determined by Professor H. Du Plessis, i.e.
that the
plaintiff was earning a zero income as at date of death of her late
husband.
[7]
This
contention the parties had agreed upon as the defendant's actuary
premised his decision on the assumption that the plaintiff
was
employed as at death of the deceased which was clearly wrong.
LEGAL
PRINCIPLES
[8]
A
court retains a wide discretion in the assessment of damages based on
loss of income and support which cannot in general be assessed
with
any degree of mathematical accuracy.
[1]
[9]
It
is true that the court is obliged, as of duty, to assess damages and
award compensation if it is certain that pecuniary damages
have been
suffered.
[2]
[10] In a claim
for loss of support the remedy relates to material loss and seeks to
place dependants
of the deceased breadwinner
"in as good
a
position, as regards maintenance, as they would have been in if
the deceased had not been killed. To this end the material losses
as
well as benefits and prospects must be considered."
[11] In the
decision Lambrakis v Santam
2002 (3) SA 710
(A) para 12 the court
found:
"The measure of damages for loss of
support is usually the difference between the position of the
dependant as
a
result
of the loss of support and the position he or she could reasonably
have expected to be had the deceased not died...."
APPLICATION
OF LEGAL PRINCIPLES
[10] In the
present instance Ms Sojini testified that at the time other late
husband's death she was
unemployed and as such not earning an income.
At this point in time she was solely being maintained by her late
husband and it
follows that as a result of his death, she had been
injured by this loss of support having fallen away.
[11]
From
the authorities it is clear she should be compensated for her loss
and having regard to her actuarial calculation presented
before this
court, the amount to be awarded is R 224 747.00.
[12]
The
general principle with regards to costs is that the successful party
is entitled to its costs in that same should follow the
event unless
there is good cause for holding otherwise. In the circumstances given
the fact that the Plaintiff has been successful
in discharging her
onus to prove her loss of support claim, there exist no basis to
deprive her of her costs incurred in presenting
her claim.
ORDER
[13]
Consequently, the following order is
made:
13.1
The
defendant is ordered to pay the plaintiff an amount of R 224 747.00
in respect of her loss of support. Payment to be made by
means of
electronic transfer of funds to the plaintiff's attorney of record.
13.2
The
above mentioned amount is to be paid within 14 days of date hereof,
failing which interest shall accrue thereon at a rate of
10, 25 % per
annum.
13.3
The
defendant shall further pay the plaintiff's costs on a High Court
scale as between party and party, either as taxed or agreed
including
costs of the qualifying fees and reasonable and necessary fees and
disbursements of expert witnesses, within the discretion
of the
Taxing Master.
COLLIS J
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
Appearances:
For
the Plaintiff:
Adv.
N.
Potgieter
Attorney
of the Plaintiff:
Cremer & Strydom
Inc.
For
the Defendant:
Adv. D.H. Maluleke
Attorney
for the Defendant:
Matabane Inc
Date
of Hearing:
28 February
2019 & 19 June 2019
Date
of Judgement:
25 June 2019
[1]
AA Mutual Insurance Association Ltd v Maqula 1978 (1) SA 895 (A)
[2]
Hersman v Shapiro and Company
1926 TPD 367
at 379