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[2019] ZAGPPHC 271
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Letsoalo v Road Accident Fund (27468/11) [2019] ZAGPPHC 271 (25 June 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
DATE:
25/6/2019
CASE
NO: 27468/11
In
the matter between:
ELIZABETH
MMATSELENG LETSOALO
PLAINTIFF
And
ROAD
ACCIDENT
FUND
RESRONDENT
JUDGMENT
MAKHOBA,
AJ
[1]
Plaintiff instituted an action against the defendant for damages
suffered as a result
of the death of her son who was killed in a
motor vehicle collision on the 14
th
September 2007. The deceased was a pedestrian when he was hit by a
motor vehicle driven by one Mr R.L Visagie bearing registration
number [….]. The plaintiff is the biological mother of the
deceased and she alleges that the deceased was her bread winner
supporting her at the time of his death.
[2]
The
merits were settled between the parties 90%. The issue to be
determined by the court is whether the deceased had a legal duty
to
support and or maintain his mother namely the plaintiff.
[3]
The
plaintiff is the only witness called and she testified she was
biological mother of the deceased. The deceased was employed
by the
department of defence and was stationed at Thaba-Tshwane. He was
residing with her at number [….]. He was single
and
maintaining her and his siblings. He helped in buying grocery and
gave her money to pay the bills for the house.
[4]
In
augmenting her income she had a vegetable pat9h. Some of the
vegetables she sold to make extra income. In cross examination she
testified that the deceased earned ± R2999 per month. He was
employed since 2005. Every month the deceased will give her
money to
buy grocery, bills for the house as well as for clothing for herself.
She was unemployed d did only piece jobs. She also
assisted her own
mother with R100 where she could. She received a state grant in the
sum ofRl700.00.
[5]
In
Peterson
v South British Insurance Co Ltd 1964 (2) 236 (CPD) at page 238
the
court said on paragraph C "ordinarily if a parent is in distress
and unable to work his or her children who have the means
can be
compelled to contribute towards their parents' support (In re Knoop,
10 S.C 198)
where a bereaved parent claims damages suffered as a
result of the loss of a child such parent would have to show not only
that
he or she was indigent but also that the child had sufficient
means to contribute"
[6]
In
Oosthuizen
v Stanley
1938 AD 322
at page 32
the
court said at
paragraph
G
''whether
a parent is in such a state of comparative indigency or destitution
that a court of law can compel a child to supplement
the parent's
income is a question of fact depending on the circumstances of each
case …"
[7]
In
Wigham
v British Traders Insurance Co. Ltd 1963 (3) 151 (WLD) at page 153
the
court said "In an action of this nature plaintiff is required to
prove not only that the child contributed to her support
but that
there was a legal duty to contribute because her circumstances were
such that she needed the contribution the equivalent
of which is now
claimed by her for the rest of her expectation of life"
[8]
In
his heads of argument counsel for the plaintiff submitted that she is
indeed indigent and was entitled to be maintained by the
deceased. He
asked the court to apply 5% contingency on the past and 15%
contingency deductions on the future loss of support.
[9]
In
contrast for the defendant counsel submits that thee are no
collaterals to prove what the deceased was contributing towards the
maintenance of the plaintiff. Furthermore counsel argued that the
plaintiff earns a state grant, has a vegetable patch, a house
and
therefore she is not indigent.
[10]
After
hearing both counsels I am of the view that he degrees of indigence
vary from one case to another. It was stated in Oosthuizen
v Stanley
supra that though the plaintiff earns an· income in some
instances he or she might need a supplement to the salary.
[11]
The
court must be satisfied that the plaintiff succeeded to show on
preponderance of probabilities that the deceased contributed
to her
support and there was a legal duty to support her. To put it
differently she must means to contribute towards her maintenance.
[12]
I
therefore accept that the plaintiff's grant of R17000.00, the
vegetable patch and piece jobs were supplemented by the cash she
received from the deceased. It is clear from her evidence that
without the support of the deceased's contribution it is difficult
to
maintain herself and her family.
[13]
Thus
therefore I am of the view that the plaintiff was and she is still in
a state of indigency and her deceased son had a duty
to supplement
her income. In addition there is no evidence that plaintiff is·
refusing to look for employment as she testified
that she and her
sons they do sometimes get temporary employment.
[14]
I
do not agree with the contingency deductions as submitted on behalf
of the plaintiff because I believe they do not take into account
that
the plaintiff receives a grant she has other means of support.
Furthermore it must be borne in mind that the plaintiff had
he lived
he would have ultimately left the family house to start his own
family.
[15]
After
careful consideration I am of the view that· the contingency
deductions to be applied in this matter are 25% contingency
deductions on the past and 40 % on the future loss of support.
[16]
The
following order is made
16.1.
Judgment
in favour of the plaintiff in the sum of R237069.15 (Two hundred and
thirty seven thousand and sixty nine rand and fifteen
cents)
16.2.
Interest
calculated from the date of judgment at the rate of 10. 25%
per
annum.
16.3.
Costs
of suit.
D.
MAKHOBA
ACTING
JUDGE OF THE GAUTENG DIVISION, PRETORIA
ATTORNEY
FOR PLAINTIFF
:LEBALLO ATTORNEYS
(012)
3213902
COUNSEL
FOR PLAINTIFF
:ADV
MAELANE
ATTORNEYFORDEFENDANT
:BRIAN
RAMABOA INCOPORATED
(012)
342 0900
COUNSEL
FOR DEFENDANT:
ADV MONONYANE