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[2018] ZALMPPHC 11
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Sethole v Road Accident Fund (1487/2014) [2018] ZALMPPHC 11 (17 April 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 1487/2014
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
17/4/2018
In
the matter between:
MANTSIE
PAULINAH
SETHOLE
PLAINTIFF
And
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
KGANYAGO
J
[1]
On the 19
th
September 2013, the plaintiff’s husband was involved in a motor
collision wherein he passed away. The plaintiff is claiming
loss of
support in her personal capacity as well as representative capacity
for her two children, Bridgette and Lebogang. At the
time of the
accident Bridgette was 16 years of age whilst Lebogang was aged 12
years. Bridgette has now reached the age of majority.
[2]
The merits of this matter have been disposed of and liability on the
part of the defendant has been resolved on the basis of
100% in
favour of the plaintiff’s proven damages.
[3]
The parties have agreed that it will not be necessary to lead oral
evidence but will dispose the matter on arguments only. Both
parties
have employed the services of the same actuary, the Independent
Actuaries and Consultants. Both parties have also agreed
to use the
defendant’s updated actuarial calculations.
[4]
The Court is called upon to determine two issues. The first issue is
whether the immovable property at Lephalale should be considered
as
accelerated benefit for the purposes of calculating the damages
suffered by the plaintiff. The second issue is the contingency
to be
applied in respect of the plaintiff and her two children. The parties
have agreed that the Court should consider table 2
of the actuarial
calculations which put the children’s dependency until the age
of 21.
[5]
The plaintiff’s counsel has argued that accelerated benefit
should be considered as an income that the family still receives
even
after the death of the deceased. According to the plaintiff that
income will not be affected by the death of the deceased.
[6]
Plaintiff’s counsel contends that the plaintiff and the
deceased were married in community of property and the house in
Lephalale is their matrimonial home which she still lives in it
together with her children. There is no income that is been derived
from that house. The plaintiff and the deceased had equal shares on
that house, and it cannot be divided into two parts.
[7]
Counsel for the plaintiff submitted that the income which the
deceased has been generating to maintain her and their children
was
derived from his salary. Therefore, the value of the house should not
be considered for actuarial calculations as it is not
an accelerated
inheritance, but a joint matrimonial home which did not generate any
income. The plaintiff relied on the cases of
Legal Insurance Company
Ltd v Botes
1963 (1) SA 608
(A) and also on that of Lambrakis v
Santam
2002 (3) SA 710
(SCA).
[8]
With regard to contingency deductions, counsel for the plaintiff
argues that no contingency deductions should be applied. In
the
alternative he submitted that should the Court decide to apply
contingency deductions, it should apply the normal contingency
deductions.
[9]
Counsel for the defendant also relying on the same case law quoted by
the plaintiff’s counsel, submitted that it is settled
law that
inheritance that comes earlier should be deducted in order to avoid
double compensation. Counsel for the defendant contends
that the
house in Lephalale is an earlier benefit and has got nothing to do
with the income.
[10]
With regard to contingency deductions, counsel for the defendant
submitted that at the time the death of the deceased, the
plaintiff
was turning 51, whist Bridgette was aged 16, and Lebogang aged 12.
The defendant’s counsel conceded that at that
age, the chances
of the plaintiff’s remarriage were slim. He is therefore
suggesting a contingency deduction of 10% for the
plaintiff, 5% for
Bridgette and 10% for Lebogang.
[11]
The first issue to be determined is whether the house in Lephalale
should be considered as an accelerated benefit for the purpose
of
assessing the damages suffered by the plaintiff and her two children.
It is settled law that the dependents of the deceased
should be
compensated only for financial loss, and that they should not profit
from the actions of the wrongdoer.
[12] In
Legal
Insurance Company Ltd v Botes 1963(1) SA 608 (A)
621 E-F the
Court said:
“
In
regard to the motor vehicle, the next proceeds of the business and
the cash in the estate, the trial court bore in mind that
the
respondent had a one half share in these by virtue of marriage in
community. Mr Hoberman elaborated an argument inter alia
as to the
distinction between the benefit of obtaining the dominium, and the
benefit of acceleration. But the trial Judge, looking
at substance
more than form, considered that for all practical purposes the death
of the deceased caused the respondent to benefit
by the accelerated
acquisition of the half by his will. I do not think that this court
can interfere, bearing in mind what may
be termed a trial court’s
latitude of approach in cases of this nature.”
[13] In
Lambrakis v
Santam LTD
2002 (3) SA 710
(SCA)
at para 13 the Court said:
“
Where
property is inherited by a defendant in determining the extent of his
loss or her loss the court should take into account
not the value of
the property but that of the accelerated accrual (cf Groenewald v
Snyders 1966(3) SA 237 (A) at 248 C-F). This
entails probabilities of
the defendant having inherited the property should the deceased not
have been killed through the wrongdoing
of the defendant, but dying
from a different cause at a later date.”
[14]
In the present case it is not dispute that the plaintiff and the
deceased were married to each other in community of property.
It is
also not in dispute that the house in Lephalale was the joint
matrimonial home of the plaintiff and the deceased, and further
that
the plaintiff and her children are continuing to live in that house
which they regard as their only home.
[15]
As the plaintiff and the deceased were married to each other in
community of property, she has automatically acquired 50% share
of
the estate by virtue of marriage in community of property. The death
of the deceased was the reason the plaintiff and her children
got
inheritance from the deceased estate.
[16] As per the
liquidation and distribution account, the deceased and plaintiff’s
estate was made up as follows:
Assets
Fixed
property
R 1230 000-00
FNB
Cheque Acc
R 15434-61
Life
Insurance
R
566 544-99
R
1811 979-60
Liabilities
R126 881-44
Balance
available for
Distribution
R 1685 098-16
[17]
The plaintiff inherited one half share by virtue of marriage in
community of property and R 168 588-14 in terms of the
Intestate
Succession Act. The two children inherited R168 588-14 each in
terms of the Intestate Succession Act.
[18]
The actuarial calculations to determine the accelerated inheritance
was based on the house in Lephalale only. Other benefits
were not
taken into consideration. The actuary came to the conclusion the
plaintiff’s inheritance amounted to R671 131-90,
whist
that of the two children amounted to R111 855-32 each.
Thereafter the accelerated inheritance for the plaintiff was
calculated as R181 104-00 whilst that of the two children as
R111 855-32.
[19]
The actuary did not deduct the full inheritance of the plaintiff as
they allowed the possibility of the future inheritance
had death not
occurred, and also assumed that the value of the estate would have
increased with inflation. With regard to the two
children, the
actuary deducted the full inheritance as according to them the
possibility the children remaining dependent on the
deceased had the
accident not taken place was assumed to be negligible.
[20]
The house in Lephalale even if it is a family house for the plaintiff
and her two children, the inheritance from that house
accrued to them
as a result of the deceased death. The plaintiff and all her children
inherited from the deceased estate as a result
of his death, and in
my view that amounted to an accelerated benefit. The actuary in
determining their accelerated benefit did
not take into account the
value of the house in Lephalale, but their accelerated accrual. In my
view if their accelerated benefit
is not taken into consideration in
assessing their damages, there will be double compensation, and they
would have profited from
the actions of the wrongdoer.
[21]
Regarding contingencies, it is settled law that contingency
deductions is a matter which falls within the discretion of the
Court. A Court may be entitled, in qualifying an amount of damages,
to form an estimate of plaintiff’s chances of earning
a
particular figure. This figure will not have to be proved on a
balance of probability, but will be a matter of estimation. (See
De
Klerk v ABSA Bank Ltd and Others
2003 (4) SA 315
(SCA)).
[22]
In relation to the plaintiff’s she is 55 years age. Even though
her chances of remarriage are slim, at that age, it cannot
be said
with certainty that her chances of remarriage are non-existence.
Culturally she is part of the deceased family and might
be required
to remain unmarried. However, culture and custom also adapt with
time. Therefore, in my view the 10% deduction suggested
by the
defendant’s counsel will be appropriate under the
circumstances.
[23]
With regard to the two children, there is no evidence that they are
having any form of disability wherein they will need any
care for the
rest of their lives. In my view, they were not going to be dependent
on the deceased for the rest of his life. Taking
into consideration
their age and that they are in good health, I am of view that the
deduction of 10% and 5% as suggested by the
defendant’s counsel
will be appropriate under the circumstances.
[24]
The parties have already agreed that table 2 of the actuarial
calculations is the appropriate table to apply. The actuary did
not
apply any contingency deductions on their calculations. What remains
is for me to factor the appropriate contingency calculations.
[25] In my view the
following calculations are fair and equitable.
25.1 Plaintiff (Mrs MP
Sithole)
R604 417-00
Less
10% contingency deduction
R60441-70
R543 975-30
25.2
Briget
R44 390-00
Less
5% contingency deduction
R2219-50
R
42170-50
25.3 Lebogang
Less
10% contingency deduction
R142 830-00
R
14 283-00
Total
loss
R714 692-80
[26] In the result i make
the following order:
26.1 The plaintiff
succeeds in her claim for compensation against the
defendant.
26.2 The defendant is to
pay the plaintiff the sum of R714 692.80 representing her claim
in both personal and representative
capacity of her two children.
26.3 The defendant to pay
the plaintiff’s costs.
_________________________
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION
APPEARENCES
1.
For
the Plaintiff
:SA Monanyane Attorneys
2.
For
the Defendant
:Noko Maimela
Attorneys
3.
Date
Hearing
:5
th
March 2018
4.
Date
of Judgment
: