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[2019] ZAGPPHC 257
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Rakhav v Road Accident Fund (38754/2018) [2019] ZAGPPHC 257 (27 June 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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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.
CASE NO: 38754/2018
27/6/2019
In
the matter between:
MILLICENT
ITANI RAKHAV
Applicant/Plaintiff
and
ROAD
ACCIDENT
FUND
Respondent/Defendant
JUDGMENT
KUBUSHI
J
[1]
This matter served on the unopposed
motion court roll of 6 June 2019. The plaintiff applied for default
judgment against the defendant
for payment of an amount of R1 429
655, being for damages for loss of support incurred by the plaintiff
and her minor child emanating
from the death of her husband and
father of her minor child ("the deceased"). The death is
alleged to have been occasioned
by the negligent driving of a motor
vehicle by one T.A. Mtheto ("the insured driver").
[2]
The plaintiff was married to the
deceased during his lifetime in community of property as
per
the marriage certificate annexed to
the application for default judgment. The two are said to have been
the legal guardians and
parents of one minor child, E[….]
J[….] R[….]. The plaintiff is, thus, in this matter,
claiming in her personal
capacity as the wife of the deceased, as
well as, in her representative capacity, as the mother and guardian
of the minor child.
[3]
There is no birth certificate attached
to the papers as proof that the minor child was the biological child
of the deceased. It
appears, however, that when the deceased paid
lobola
for
the plaintiff, she already had a child and it was agreed during the
lobola
negotiations
by the deceased's family and the plaintiff's family that the deceased
marry the plaintiff together with the said child.
This appears from
the affidavit of the deceased's mother annexed to the application for
default judgment. It is on this basis that
the plaintiff is claiming
that the deceased had, during his lifetime, the legal duty to
maintain the minor child.
[4]
The question that arises is whether in
such circumstances, the deceased was legally liable for the
maintenance of the child. When
I prepared judgment, the plaintiff's
counsel had not addressed me specifically on this issue. I then opted
to request him to prepare
heads of argument in respect of this issue
and to provide relevant case law.
[5]
In the heads of argument, counsel
contends that the deceased had the legal duty to maintain the minor
child because he had adopted
the minor child by customary law. When
concluding and/or finalising the customary marriage between the
plaintiff and the deceased,
their respective families undertook the
customary adoption of the minor child by the deceased. The plaintiff
and the deceased were,
as such, the legal guardians and parents of
the minor child. The handing over of the minor child to the deceased
was done simultaneously
with the
lobola
celebration as a fulfilment of the
requirements of adoption in customary law. In this regard, counsel
relied on the authority of
Professor Maithufi (an expert in African
Law) in Maithufi, I "Adoption according to customary law -
Kewana v Santam Insurance
Co.
Ltd
(4)
SA (Tk) Followed" (200) 34
De
Jure
390 at 391 - 392.
[6]
It is trite that adoption in customary
law is recognised in our law.
[1]
The requirements for a valid customary adoption have been held to be
-
6.1
An agreement between the families; and
6.2
Publicity in the traditional areas that
the parties were living together.
[7]
It is evident from the facts in this
matter that the adoption was performed as confirmed by the deceased's
mother and was celebrated
together with the
lobola
celebration, as an indication that
it was announced. At the time of the deceased' death, the minor child
was staying together with
the plaintiff and the deceased. In
Centre
for Child Law v Minister of Social Development,
[2]
the Gauteng Division of the High
Court, Pretoria issued an order and declared on 29 October 2013
inter
alia
that s. 230 (3) of the
Children's Act
[3]
does not preclude a child from being adopted in instances where the
child has a guardian and the person seeking to adopt the child
is the
spouse or permanent domestic life-partner of that guardian. The
deceased was the spouse of the plaintiff who is the guardian
of the
minor child and he was, thus, entitled to adopt the minor child.
[8]
The plaintiff instituted proceedings
against the defendant on 5 June 2018. The summons was duly served on
the defendant on 11 June
2018. The
dies
for the defendant to enter
appearance to defend expired on 26 June 2018 and to date
hereof no appearance to defend has been
entered. As such, when the matter served before me almost twelve
months had expired since
the summons was served on the defendant.
[9]
It is the practice of this court, where
a long time (usually more than six to twelve months) has expired
since the service of the
summons had taken place without the
plaintiff taking further steps, to order that such summons be served
again. However, in this
instance, from the record, it appears that
there was email communications and telephonic conversations between
the plaintiff's
previous attorneys of record and one of the officials
of the defendant in regard to settlement of the claim. I would in
such circumstances
assume that the defendant is aware of the summons
served on it and failed, neglected and/or has no intention to defend
the matter.
[10]
The defendant is, in terms of the
Road Accident Fund Act 56 of 1996
,
liable to compensate people injured in motor collisions due to the
negligence of the driver of a motor vehicle involved in such
collision ("the insured driver"). The plaintiff in her
evidence contained in the affidavit filed with the application
for
default judgment, states that a collision occurred on 28 March 2017
between a certain Toyota Quantum Mini Bus bearing registration
numbers [….], there and then driven by the insured driver and
a VW Polo bearing registration numbers [….], then driven
by
one Mahlangu Phumzile. The deceased was a passenger in the VW Polo at
the time of the collision. The deceased is said to have
died as a
result of the multiple injuries he sustained in the collision, thus
rendering the defendant liable to compensate both
the plaintiff and
her minor child for loss of support.
[11]
In her evidence, the plaintiff
attributes negligence to the insured driver in one or more of the
following factors:
11.1
He
failed to keep a proper look-out; and/or
11.2
He
failed to keep the motor vehicle of which he was a driver under
proper control; and/or
11.3
He
failed to apply brakes of the motor vehicle of which he was the
driver timeously or at all; and/or
11.4
He
failed to avoid the collision when, by the exercise of reasonable
care, he could and should have done so; and/or
11.5
He
failed to pay due regard to the rights of other road users and in
particular the rights of the deceased; and/or
11.6
He
failed to stop at a stop sign.
[12]
The plaintiff in this default judgment
application has not separated the merits from
quantum.
She is thus asking for default
judgment on both merits and
quantum.
In support of the amounts she claims
as
quantum,
the
plaintiff has attached an actuarial report prepared by Johan Sauer
Actuaries & Consultants. The report is, however, not
confirmed as
the true report authored by the experts involved and can, as such,
not be admissible as proof of the
quantum
claimed.
[13]
In conclusion, I am satisfied that the
defendant has not entered appearance to defend this matter even
though he was duly served.
I am also satisfied that the deceased was
legally responsible for the maintenance of the plaintiff and the
minor child during his
lifetime and as such, they are entitled to be
compensated for the loss of support sustained as a result of the
death of the deceased.
[14]
The plaintiff must, however, still prove
quantum
and
I, as a result, have to postpone the issue of
quantum.
[15]
In the circumstances, I make the
following order:
1.
The plaintiffs claim on the merits
succeeds;
2.
The defendant is 100% liable;
3.
Quantum
is
postponed
sine die.
E.M. KUBUSHI
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for Applicant
: Adv. M. Mphahlele
Instructed
by
: Sathekge Muliti Inc.
c/o
B Rikhotso Attorneys
Date
of hearing
: 06 June 2019
Date
of judgment
: 27 June 2019
[1]
See Kewana v Santam Insurance Co Ltd 1993 (4) SA 771 (AD).
[2]
2014 (1) SA 468 (GNP).
[3]
Act 38 of 2005.