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[2018] ZAGPPHC 181
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L D v Road Accident Fund (14606/2016) [2018] ZAGPPHC 181 (5 February 2018)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case
No. 14606/2016
Not
reportable
Not
of interest to other judges
Revised.
5/2/2018
In
the matter between:
L
D
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
MILLAR
AJ
1.
The Plaintiff brought an action for damages for loss of support
arising out of the death of her late husband J B ("the
deceased"), as a result of injuries sustained by him in a motor
vehicle collision on 5 March 2013. The action is brought against
the
Defendant, the party responsible to pay such claims in terms of the
Road Accident Fund Act 56 of 1996
.
2.
On 15 June 2017, the parties settled the issue of liability. The
parties agreed that the issues to be determined by this court
are:
2.1 Whether or not the plaintiff's
minor child is entitled to claim a loss of support; and
2.2 The quantum of damages in respect
of such claims for which the Defendant is liable.
3.
The plaintiff called two witnesses. She testified herself and also
called a Mr. Christian Petrus De Witt. These were the only
witnesses
called. After the plaintiff closed her case, the parties reached an
agreement as to the basis upon which the actuarial
calculations for
loss of support were to be premised. This was in accordance with the
evidence of the plaintiff and Mr. De Witt.
The evidence of both the
in respect of income was corroborated by income tax documentation and
correspondence which was put to
them variously during their evidence
and confirmed. A report was prepared by the actuary Mr. Johan Sauer
and handed into evidence.
4.
This resulted in a narrowing of issues by limiting the quantum aspect
referred to in paragraph 2.2 above. On this aspect I need
only decide
the so called "remarriage contingency" to be deducted from
what has been calculated by the actuary.
5.
On the two issues to be decided, the plaintiffs evidence was that she
was born on 2 August 1975 and had matriculated in Lichtenburg
in
1993. After leaving school she had commenced studying graphic design
at a Technicon but had given up those studies during the
first year.
She worked at various jobs and had then gone to London in the United
Kingdom in 1999 on a two-year working visa. She
had worked initially
at an estate agency as an administrator and thereafter doing fund
raising. She had extended her stay beyond
the two years and while
doing so had studied graphic design and also enrolled to study
business management through UNISA. While
in London she had met J F
("F") who had also been studying graphic design there. They
had a relationship as a result
of which their daughter L B ("L")
was born on 15 May 2005.
6.
Although F proposed marriage, she declined and three months after her
daughter’s birth she had returned to South Africa.
Although F
also returned to South Africa, the relationship did not continue.
7.
Due to her own family background, she had been reluctant to enter
into a marriage, even if she was going to have a child and
hence the
refusal of the proposal made by F. She was adamant that she would not
marry just for the sake of it.
8.
She started her own business in 2009 and had met the deceased in July
of the following year. The deceased was 5 years younger
than her. The
deceased had courted her for just over 2 years and they were married
on 6 October 2012.
9.
During her evidence, the plaintiff was emotional and had become
tearful on more than one occasion when testifying about her
relationship with the deceased and the family that she and L had with
him. She testified that he had regarded L as his own and had,
as an
indication of this, during the marriage ceremony and just before they
had exchanged vows, called L to join them. He had picked
her up and
held her in his arms between them and had pledged to look after her
as his own in front of the assembled congregation.
10.
She testified that the relationship with the deceased had been good
and that at the time of his death she had still felt that
she was on
"honeymoon". Her evidence was further that while they had
lived together they had shared all expenses jointly.
Even though F
had contributed to L's school fees only, due to his own
circumstances, the deceased had contributed to all the other
costs
associated with raising L. This was the situation that prevailed at
the time of his death, only 5 months after the marriage.
The deceased
had left no estate to speak of and no will. She conceded that there
was a possibility she may remarry but pointed
to the fact that she
had taken 17 years to find the deceased and that she was not now, 5
years after his death, in a relationship
nor did she want one with
anyone.
11.
The plaintiff gave her evidence in a clear and unequivocal manner.
Her evidence was neither seriously challenged nor disturbed
in cross
examination. The plaintiff impressed me as a truthful witness and I
have no hesitation in accepting her evidence.
12.
Firstly
, in regard to whether or not the defendant is liable
to compensate L for loss of support, the undisputed evidence was that
although
L was not the biological child of the deceased, he had
undertaken to and had in fact supported her as though she was his
own.
13.
In
Paixao
and Another v Road Accident Fund
[1]
it was held that:
"[18] First it
must be decided whether there was any agreement creating
a
binding
legal obligation between the appellants and the deceased. An
agreement may be made expressly or tacitly. An express agreement
may
be made orally or in writing. A tacit agreement is inferred from the
surrounding circumstances and conduct of the parties.
In either case
it is for the court to decide whether
a
contract
probably came into existence
[2]
and
"I therefore hold
that the dependents' action is to be extended to unmarried persons in
heterosexual relationships who have
established
a
contractual
reciprocal duty of support"
[3]
and
"But once it is
established that the deceased had undertaken to support Mrs. Paixao
and her children, including Michelle, and
did so, I cannot see any
reason why Michelle's claim should fail. Her claim, like her
mother's, arose from the same 'family relationship"'.”
[4]
14.
The facts of the present case are not dissimilar to those in Paixao,
save that in the present case the plaintiff and the deceased
had in
fact been legally married, albeit for a short period of time before
his death. The marriage, together with the deceased's
promise to L at
the time of the marriage, to my mind only serves to strengthen my
view
that the obligation to support her was indeed undertaken
by the deceased.
15.
There is no limitation on the
number of different persons who may contribute to the maintenance and
support of another The fact
that a biological parent has a duty, to
support a child, which arises
ex
lege,
does not preclude or
exclude support of the child by others. It is self-evident that such
a situation which will necessarily result
in a child's needs being
better met, is in the bests interests of the child
[5]
.
16.
Accordingly, I hold that the
deceased had undertaken a duty to and in fact did support L. The
Defendant is liable to compensate
L. The right to claim support is
not however open ended and in the circumstances tempered by a
limitation to claim only that loss
which has actually been
suffered.
[6]
17.
Counsel for the defendant
initially argued, should the defendant be found liable, that there
should be an adjustment to the apportionment
of the income in respect
of L to be half of the usual single share allocated for children or
that a notional further child yet
to be born be provided for in the
calculation
[7]
.
During argument, the latter two propositions were abandoned, and the
defendant argued that a more appropriate way to account for
a
possible increase in support being paid by F was by the deduction of
a further contingency. Counsel for the plaintiff argued
that there
should be no deduction at all.
18.
The support received by L from
F is separate and in addition to that received from the deceased. Any
increase in the support paid
by F would not have led to a reduction
in support from the deceased. The evidence was to the contrary, that
the deceased would
have supported L irrespective of the contribution
towards her support by F.
[8]
19.
Accordingly, there is to be no further contingency deduction from the
loss of support suffered by L simply because she also
receives some
support from F.
20.
Secondly, and as to the
remarriage contingency to be deducted in respect of the plaintiff
herself, in respect of the deduction of
contingencies generally, the
principle to be applied is that set out in
Southern
Insurance Association Ltd v Bailey NO
[9]
-
"Even where
method of actuarial calculations is adopted the trial Judge still has
a
discretion to award
what he considers right
-
Can
make
a
discount for
contingencies
-
Nature
of contingencies that can be taken into account
–
Such contingencies not always adverse
"
21.
It is generally accepted in our courts that for claims for loss of
support a remarriage contingency may be deducted over and
above the
normal contingencies for the hazards and vicissitudes of life.
22.
The current position in our law
with regard to remarriage contingencies and the factors to be taken
into account in the determination
of such contingencies is set out
Esterhuizen v Road Accident
Fund
[10]
in which the court stated:
"[10] To take
appearance and nature in consideration is not in accordance with the
constitutional values of dignity and equality
enshrined in our
Constitution. In the Members of the Executive Council Responsible for
the Department of Road and Public Works,
North West Province v
Oosthuizen
[11]
it was stated that reliance on appearance is offensive and should not
be part of our law. In that case it was argued that
a
remarriage
contingency should be struck down as unconstitutional because it
offends against the equality provisions of the Constitution.
The
Court however pointed out that no reference was made to the
respondent's appearance, and found that to provide for
a
remarriage
contingency is not unconstitutional.
[11] The Court stated as follows:
(5) "In South Africa, the
contingency of remarriage is usually taken into account. If the
purpose of an award for damages for
loss of support is borne in mind
the possibility of the plaintiff remarrying is
a
very real
consideration, the possibility of
a
young widow remarrying
shortly after the death of her husband and receiving damages for loss
of support calculated over
a
period of 40 years is completely
unrealistic, allowing for the contingency is obviously realistic. In
Hulley v Cox
1923 AD 234
at 244 the court said:
"The dependants
are entitled to be compensated for the pecuniary loss involved in a
reduced income and a restricted provision
for the supply of what they
had been accustomed to. But the object being to compensate them for
material loss, not to improve their
material prospects, it follows
that allowance must be made for such factors as the possibility of
remarriage.
In Peri-Urban Areas
Health Board v Munarin
1965(3) SA 367 (A) at
3768-0
the court summarised the position as
follows:
'A widow is therefore
entitled to compensation for loss of maintenance consequent upon the
death of her husband, but any pecuniary
benefits, similarly
consequent, must be taken into account. To suggest that she is
obliged to mitigate her damages by finding employment
is to mistake
the nature of her loss. What she has lost is a right
-
the right of support. She cannot be required
to mitigate that loss by incurring the duty of supporting herself. If
she does obtain
employment, it is more appropriate to regard her
earnings as being the product of her own work than as a consequent
upon her husband's
death. Marriage prospects are relevant because
marriage would reinstate her right of support. The propriety of
taking such prospects
into account was recognised by this Court in
Hulley v Cox,
1923 AD 234
at 244 and Botha's case, supra, at pp616-8'
These, and other
judgments, reflect the approach of South African courts to the
question of damages; that they should be fairly
assessed in the light
of the realities of the case.
(6) These judgments do
not suggest anything other than that the possibility of remarriage
must be taken into account. They do not,
in terms, require that
a
trial court
assess
the
likelihood of the plaintiff remarrying on the strength of her
physical appearance. The respondent has not referred to judgments
in
South Africa where this has been stated
as a
requirement in determining the possibility of
the plaintiff remarrying. If it is the Jaw that this be done I agree
with the respondent
that this would be offensive and should not be
part of the law. But the respondent has not been
so
assessed in this
case
and this court has not seen her. It therefore
plays no role in the
case.
It
is a simple actuarial contingency
(my
emphasis)."
[12] In my view the aforementioned
approach is both correct and realistic and in accordance with the
values of equality and dignity
enshrined in our Constitution. It
keeps in mind that an award of damages should be fair and to allow
for the possibility of remarriage
is appropriate, but no reliance
should be placed on factors such
as
appearance.
[13] I am
of the view that
it must also be borne in mind that
a
second marriage may not
result in financial support. There is the possibility that the second
marriage may not last and that the
financial support, if gained may
be lost. The second husband may also not be in
a
financial
position to give the necessary financial support. Consequently, the
possibility that the remarriage may not result in
financial support
must
a/so
be taken into consideration when the remarriage
contingency is determined
[14] To determine the Plaintiffs
prospects of remarriage and the possibility of financial support is
to gaze into the proverbial
crystal ball."
29.
While the determination of a
remarriage contingency is a discretionary matter for the trial court,
taking into account all the evidence
before it, and the court in the
exercise of its discretion may have regard to statistics, I do not
agree that the matter is one
of "a simple actuarial contingency"
referred to in
Esterhuizen
[12]
.
The decision to marry is
seldom, if ever, in the first instance a commercial one or one
arrived at mathematically
30.
In Paixao
[13]
,
the court observed that:
"[31] Our courts
have emphasised the importance of marriage and the nuclear family as
important social institutions of society,
which give rise to
important legal obligations, particularly the reciprocal duty of
support placed upon spouses. The fact is, however,
that the nuclear
family has, for
a
long
time, not been the norm in South Africa. South Africans have lower
rates of marriage and higher rates of extra-marital child-bearing
than found in most countries."
31.
Marriage is a social institution. The decision to marry is not one
taken lightly having regard to the social, cultural and religious
obligations that the parties undertake to each other. In the present
case, the plaintiff did not end her marriage through the exercise
of
any choice by her or the deceased. The marriage was brought to an end
suddenly and unexpectedly in consequence of the actions
of a
negligent driver.
32.
Proper statistics relating to remarriage may well be useful in
assessing an appropriate contingency, but statistics are only
assistive if they are derived from a sufficiently large and
representative sample. Furthermore, the statistics should at least
be
derived from data collected within a reasonable frame of time
relative to when the contingency is to be applied, so as to provide
some validity to the specific social and other circumstances which
would influence marriage and remarriage trends prevailing at
the
time.
33.
A number of cases and writers
have cited the work of the actuary Mr. Koch as providing a reference
in this regard. Indeed, in the
present matter, counsel also referred
me to this work. In latest edition of The Quantum Yearbook
[14]
the following is stated in respect to the application of remarriage
contingencies
"NOTES TO
REMARRIAGE DEDUCTIONS
This table is based on
the 1970 and 1980 census data in South Africa graduated by Thomson
and used as the basis for his article
published in 1988 De Rebus 70.
This reflects the latest statistical information on the subject. The
percentages reflect the deduction
to be made from the actuarial
present value of the future loss of support for
a
widow. It usual that these percentages are
adjusted upwards or downwards depending on perceptions of the likely
financial status
of
a
second
notional husband. In the event of remarriage, regard will be had to
the earnings of the new husband (Ongevallekommisaris
v Santam
1999 1
SA
251
(SCA)). For
black widows subject to the influence of customary law it is
appropriate to use something less than the rate for coloured
widows,
perhaps one half, to allow for cultural and financial impedances to
remarriage. For urbanised higher income blacks
the coloured rate
would seem to be appropriate. Very high remarriage rates are
a
peculiarly white phenomenon.
It is [un]common (sic)
that the main breadwinner is the wife. In the event of
a
claim for loss of support by
a
surviving husband it is appropriate to make
a
deduction for his prospects of remarriage. It
is usual to use the female table to select
a
remarriage deduction.
A comprehensive
discussion of remarriage rates and their application to damages
awards has been published in 1988 De Rebus 67-80.
The percentages
reflect the chances of remarriage and in no way provide
a
guide as to the period until remarriage. Most
widows will either marry within
a
few
years of the death or not at all. This is evident from the table in
that the number of marriages reduces substantially with
advancing
age.
For purposes of claims
for maintenance against deceased estates and divorce settlements the
remarriage rates are much lower due
to the propensity of widows to
avoid
a
financially
prejudicial marriage. For such claims it would be appropriate for
whites to use about 60% of the remarriage rates published
here, this
being
a
compromise
between the full rate and the reduced rate
[15]
.”
33.
Counsel for both parties relied on the statistics in this work and
argued for deductions of between 20 percent and 30 percent.
34.
My primary difficulty with the
basis proposed by Mr. Koch is that the statistics are derived from
data that is at worst 48 and at
best 38 years old. The data was
gathered at a time when the very fabric of our society was different.
The period concerned, 1970
to 1980 represented the height of
apartheid and a time when the majority of the population andwomen
specifically were subjected
to legal disability, not least being the
marital power and the legislative prohibition to choose a marriage
partner freely
[16]
.
Furthermore, the census periods, exclude a significantly large
percentage of the population
[17]
so as to render them all but statistically valueless in our presently
multicultural society
[18]
.
There can be no doubt that since the 1980 census, our society and our
law have developed sufficiently, in my mind to render any
reliance on
those statistics and the racially based expression of them
[19]
,
of no value whatsoever.
35.
There is a second difficulty, and this is the practical prejudicial
effect of a special contingency for remarriage. This is
best
demonstrated when one has regard to the fact that each 8.3 percent of
such contingency represents 1 month of the year. A 16.6
percent
contingency is two months and 25 percent is 3 months or put
differently a quarter of the year.
36.
The deduction of such a
contingency, for example 25 percent, means that the support awarded,
although intended to replace that which
would have been lost for each
full year of 12 months, only replaces 9 months of the year and the
plaintiff would in that case have
to either seek and find a
replacement marriage partner or face
a
substantial
drop in
standard of living
[20]
.
The effect is compounded and more prejudicial the younger the widow
or widower.
37.
In the present case, the
parties agreed to the deduction of a 5 and15 percent contingency for
the general hazards of life in respect
of the past and future loss
respectively. For the plaintiff
[21]
these translate to a total deduction of R336 693,00 and for L
[22]
a deduction of R187 715,00.
38.
The decision to marry does not
seem to me to be any different in principal to the decision to
remarry, whether or not the marriage
ended through death or divorce.
Professor L Steynberg in an article titled "Re-partnering as a
Contingency Deduction in Claims
for Loss of Support Comparing
South Africa and Australian Law
[23]
states:
"In general, it
can be stated that South African courts tend to give serious
consideration to the probability of
a
widow
re-partnering and they are inclined to make substantial accommodation
for this. It is nevertheless true that the proven factual
circumstances do not always warrant these high adjustments,
especially if they are preceded by
a
general
contingency adjustment.
In three Australian
jurisdictions the legislature has promulgated legislation forbidding
the use of re-partnering as
a
contingency
deduction in
a
claim
for Joss of support. These three jurisdictions are the Northern
Territories, Victoria and Queensland.
Apart from the three
mentioned jurisdictions in Australia regulated by statute, the legal
position in Australian law on re-partnering
as
a
possible contingency deduction is to be found
in case law, as is the case in South Africa. In
a
recent decision of the Australian
High Court in De Sales
v lngrilli
[24]
justice Kirby pointed out the changeability of the Australian
judicial bench when it comes to the quantification of re-partnering
as
a
probability
or contingency.
Contingency
adjustments for re-partnering in Australian case law vary from two
percent to one hundred percent.
In Dominish v
Astill
[25]
Reynolds AJ declares that
a
position
of moderation should be taken in terms of re-partnering in order to
avoid acting unfairly towards the widow. In the recent
decision in
the High Court of Australia in De Sales v lngrilli,
[26]
this position of moderation was formulated comprehensively. Chief
justice Gleeson distinguished between cases where the claimant
had
already remarried (re-partnered) and cases where remarriage (re
partnering) had not yet occurred. In the instance where
remarriage
had occurred, or where a
marriage
with
a
specific
person was
a
definite
prospect, the court could examine the circumstances of the particular
case and make appropriate adjustments. Therefore,
the remarriage did
not automatically exclude the right to support.
Where remarriage had
not yet occurred,
a
double
contingency had to be addressed: Firstly, the probability that the
claimant would remarry and secondly, the probability that
financial
advantage would flow from this union. Chief justice Gleeson was of
the opinion that the court's subjective adjudication
of both these
contingencies would be speculative in nature and that even statistics
would not sufficiently assist the court. The
fact that these
contingencies were unpredictable, did not however release the courts
from the obligation to take this into account.
According to him, the
uncertainties involved in the probability of remarriage were not
greater or smaller than those apparent in
other 'vicissitudes of
life' such as unemployment which usually forms part of
a
general contingency adjustment.
The majority finding
of the court by justice Kirby was that in cases where remarriage has
not yet occurred, remarriage or re-partnering
could no longer be
applied as
a
specific
contingency, which tends to be higher than the general contingency
adjustment. However, it was held that the degree to
which economic
advantages or disadvantages of hypothetical re-partnering remained
relevant in the calculation of the loss suffered
as a result of the
death of the breadwinner, it should now be taken into consideration
as part of the 'standard' adjustment (general
contingency adjustment)
for uncertain future events. The High Court determined that the
general contingency adjustment, which incorporated
re-partnering,
should only be five percent:
Re-partnering is
merely another of the many possible vicissitudes of life, namely that
the claimant may enter an economically beneficial
or detrimental
relationship after the trial. It is therefore to be given no more
weight than any of the other vicissitudes that
go to make up the
general discount. The 'standard' adjustment should not be increased
to re introduce the 'remarriage' discount
by the back door."
37.
Having regard to the outdated statistics in Koch, it seems to me that
in order to obviate an injustice to a widow or widower
and in
particular to the plaintiff in the present case, that the approach
adopted by the Australian court is the correct approach
to follow.
Unless the facts of a particular case clearly demonstrate that a
higher than normal, and, special contingency for remarriage
is to be
deducted, such further contingency ought not to be deducted. The
'vicissitudes of life',
take account of the prospects of
remarriage - no matter the reason therefore and thus, absent special
circumstances, incorporate
a more just provision for the contingency
than the arbitrary statistical deduction of a further contingency.
38.
The parties agreed in the present case to the deduction of a 5 and15
percent contingency for the general hazards of life in
respect of the
past and future loss respectively. This is the usual deduction
applied in our courts for this type of contingency.
On the
established facts of the present case, I am of the view that there
are no circumstances that warrant the deduction of any
further
contingency and am satisfied that the agreed deduction appropriately
provides for the possibility of the remarriage of
the plaintiff such
as it may be.
39.
In the premises, I make the following order:
39.1 The defendant is ordered to pay
to the plaintiff in her personal capacity the sum of R 2 056 161,00
(Two million and fifty-six
thousand one hundred and sixty-one Rand)
39.2 The defendant is ordered to pay
to the plaintiff in her representative capacity as guardian of L the
sum of R 1 393 257,00
(One million three hundred and ninety-three
thousand two hundred and fifty-seven Rand)
39.3 The Defendant is ordered to pay
the Plaintiffs taxed or agreed costs of suit to date on the scale as
between part and party,
excluding all costs recovered by order of
this court of 15 June 2017. Such costs are to include the costs of
Johan Sauer, Actuary
for reports prepared pursuant to and during this
trial.
39.4 The reasonable travelling and
accommodation costs of the Plaintiff, L and Mr De Witt to attend
trial on the 31 January and
1 February 2018, which costs will include
their return airfare tickets from Cape Town International to Oliver
Tambo and their reasonable
travel costs to and from court;
39.5 The Defendant is ordered to pay
interest at the prescribed rate a
tempore mora
from 14 days
after the granting of this order to date of payment.
______________________
A
MILLAR
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
31 JANUARY & 1 FEBRUARY 2018
JUDGMENT
DELIVERED ON:
5 FEBRUARY 2018
COUNSEL
FOR THE APPLICANT:
ADV P VERMEULEN
INSTRUCTED
BY:
HAGERMAN &ASSOCIATES
REFERENCE:
MS HAGERMAN
COUNSEL
FOR THE RESPONDENT: ADV L COETZEE
INSTRUCTED
BY:
T M CHAUKE INC.
REFERENCE:
MS KHOKHONE
[1]
2012 (6) SA 377
(SCA)
[2]
Paixao supra at 383 D-E
[3]
Paixao supra at 391 F
[4]
Paixao supra at 391 G-H
[5]
s 28 ( 2 ) of The Constitution of The Republic of South Africa 1996;
s 9
of The
Children's Act 38 of 2005
.
[6]
Lambrak is v Santam Ltd 2002 (3) SA 710 (SCA)
[7]
Road Accident Fund v Monani and Another 2009 (4) SA 327 (SCA)
[8]
see Lambrakis supra at paragraph 10 where the court stated "The
principles governing the award of damages to dependents
for loss of
support were not in contention in this appeal. It was conceded by
the plaintiff that the children were entitled to
damages only
insofar as they had suffered actual pecuniary loss as a result of
the wrongdoing of the insured driver (see Evins
v Shield Insurance
Co Ltd
1980 (2) SA 814
(A) at 838A, where Corbett JA described this
proposition as trite)".see also Constantia
Versekeringsmaatskappy Bpk v Victor
NO
1986 (1) SA 601
(A)
[9]
1984 (1) SA 98
(A) at 98 E-F
[10]
An unreported judgment of Tolmay J delivered in this division under
case no. 26180/2014 on 6 December 2014.
[11]
(A671/07) (2009) ZAGPPHC 16 (2 April 2009).
[12]
Esterhuizen supra paragraph 11
[13]
Paixao supra at 389 B-C
[14]
Van Zyl, Rudd & Associates2018
[15]
At page 113, there is also at page 112 a table setting out
percentages for the remarriage contingency extracted from the
statistics.
[16]
For example, The Prohibition of Mixed Marriages Act 55 of 1949 which
was only repealed in 1985
[17]
Ten self-governing territories for different black ethnic groups
were established as part of the policy of apartheid. Four of
which
were granted "independence· by South Africa (recognized
only by South Africa and each other). These former
South African
Homelands or bantustans ceased to exist 27 Apr 1994 and were
re-incorporated into South Africa, and all absorbed
into the new
provinces. (www.worldstatesman.org/South_African_Homelands)
[18]
The suggested application of the statistics to black people with
reference to those relating to coloured people is demeaning
and
offensive.
[19]
The way in which the population groups have been described relative
to those statistics is unfortunate, and given the publication
of the
book in 2018, only serves to reinforce the historical context in
which the data was gathered and interpreted.
[20]
See S 9(2) and S 10 Of The Constitution, 1996. The consequences of
the application of an excessive contingency not properly supported
by evidence may result in a breach of rights in the bill of rights.
[21]
The past loss of support for the plaintiff was calculated by the
actuary as R222 345,00 before contingencies and the future loss
of
support calculated as R2 170 509,00. Of a total loss, the deduction
of the hazards of life contingency reduced the gross amount
of the
loss from R 2 392 854,00 to R2 056 161,00.
[22]
The past loss of support for L was calculated by the actuary as R494
313,00 before contingencies and the future loss of support
calculated as R1 086 659,00. Of a total loss, the deduction of the
hazards of life contingency reduced the gross amount of the
loss
from R1 580 972,00 to R 1 393 257,00.
[23]
PER/PELJ 2007 10 (3) and to the footnotes referred to therein.
[24]
De Sales v lngrilli [2002) 21
2 CLR 338
(HC) 391-392 par 150.
[25]
Dominish v Astill [1979)
2 NSWLR 368
(CA) 378F-G: "It has come
to be accepted and in my opinion correctly, that, although real and
not nominal allowance should
be made for the revived capacity to
marry, such allowance should, in general be moderated for fear of
otherwise doing an injustice
to the widow.
[26]
De Sales v lngrilli [2002) 21
2 CLR 338
(HC) 352-353 par 27-31.