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[2017] ZASCA 155
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Road Accident Fund v Mohohlo (882/2016) [2017] ZASCA 155; 2018 (2) SA 65 (SCA) (24 November 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 882/2016
In
the matter between
ROAD
ACCIDENT FUND
APPELLANT
and
REBECCA
MOHOHLO
RESPONDENT
Neutral
citation:
Road
Accident Fund v Mohohlo
(882/16)
[2017] ZASCA
155
(24 November 2017)
Coram:
Leach JA, Meyer, Mokgohloa, Makgoka and Rogers AJJA
Heard
:
13
November 2017
Delivered:
24 November 2017
Summary:
Delict – dependant’s action –
claim by deceased’s aunt – de facto adoption –
deceased owed her
duty of support – claimant sufficiently
indigent to enforce duty.
ORDER
On
appeal from:
The
Gauteng Division of the High Court, Pretoria (Hughes J sitting as
court of first instance).
The
appeal is dismissed with costs.
JUDGMENT
Rogers AJA (Leach JA,
Meyer, Mokgohloa and Makgoka AJJA concurring):
[1]
The question in this appeal is whether the respondent, who was the
plaintiff in the court a quo, is entitled to claim damages
for loss
of support arising from the death of her nephew,
Otshepeng
Letshufi
, who died on 27 October 2011 as a
result of injuries sustained in a motor collision on 2 July 2011. The
appellant, the defendant
in the court a quo (RAF), conceded the issue
of negligence but disputed the respondent’s right to damages.
For convenience
I refer to the respondent as the plaintiff.
[2]
The parties asked the court a quo to determine whether Otsepeng owed
the plaintiff a legal duty of support and whether she had
the degree
of indigence entitling her to enforce the duty. The quantification of
her claim, if these questions were answered in
her favour, stood over
for later determination. Unfortunately, and despite repeated
admonishments from this court, the matter proceeded
without a formal
separation order, without a clear identification of the issues and
without proper consideration as to whether
separation was
convenient.
[1]
The result was
that the court a quo, which found for the plaintiff, made an order
that the RAF was ‘liable to compensate
the plaintiff…
(for) the amount of damages the plaintiff is able to prove’.
This was not in terms a determination
of the issues which the parties
apparently wanted the judge to decide.
[3]
It is doubtful whether a separation of issues was convenient. The
quantification would not have required extensive evidence.
More
importantly, there is a connection between indigence and
quantification, since the quantum of support, if any, to which the
plaintiff is entitled would be the amount required to eliminate the
indigence.
[4]
However, it would not be fair to the plaintiff if we were to refuse
to determine the appeal at this stage. We thus proceed on
the basis
that the court a quo’s decision should be understood as a
determination that Otsepeng owed the plaintiff a legal
duty of
support and that she was sufficiently indigent to enforce the duty.
Since quantification has been deferred for later decision,
even a
slight deficit in her resources would suffice to sustain the court a
quo’s decision.
[5]
It is not the plaintiff’s case that Otsepeng owed her a duty of
support merely by virtue of their blood relationship.
According to
our common law, blood relationship per se only gives rise to a duty
of support to the second degree of consanguinity
so that, while there
is a duty of support between grandchild and grandparent, and between
siblings inter se, there is no duty of
support between uncle/aunt on
the one hand and nephew/niece on the other. See Voet
Commentary
on the Pandects
25.3.10 (Gane’s
translation); Van Leeuwen
Roman-Dutch Law
1.13.7 (Kotze’s translation, 2 ed); Van
Leeuwen
Censura Forensis
1.10.4
(WP Schreiner’s translation); Sande
Frisian
Decisions
2.8; Huber
Jurisprudence
of My Time
1.23.30 (Gane’s
translation);
Ford v Allen & others
1925
TPD 5
, which contains a full discussion of the old authorities;
United Building Society v
Matiwane
1933 EDL 280
at 284;
Vaughan NO v
SA National Trust and Assurance Co Ltd
1954
(3) SA 667
(C) at 670D-671B. See also Van Heerden et al
Boberg’s
Law of Persons and the Family
2
ed at 253.
[6]
In
Vaughan NO
Herbstein J, with whom Van Wyk AJ concurred,
referred to Grotius 3.33.2 where the writer speaks of ‘the
widow and children
and any others, if such there be, who were
maintained by the dead man’s labour’, observing that
insofar as Grotius
related the duty of support to the factual
provision of support by the deceased at the time of his death, the
writer did not appear
to state our law (at 671A). He also pointed out
that, in the light of Voet’s unequivocal statement at 25.3.10,
the same writer’s
reference at 9.2.11 to a duty of support owed
to the wife and children and ‘other near relations’ could
not be a reference
to the relationship between an uncle/aunt and
nephew/niece.
[7]
In the present case, the plaintiff relies on circumstances additional
to the blood relationship. She was the only person to
testify (which
she did through an interpreter) and her evidence must be accepted
unless it was plainly unsatisfactory, which I
do not think it was.
Her evidence disclosed the following. She is the oldest of her
siblings, of whom only two sisters survive.
She was 64 when she
testified in August 2015. Otsepeng is the child of one of her
surviving sisters, Lenah. The latter was an unmarried
woman of 19
when she gave birth to Otsepeng in March 1983. She was still at
school. Otsepeng’s alleged father is deceased
and disputed
paternity while he was alive. Lenah subsequently married another man
with whom she has four children and a grandchild.
[8]
The plaintiff testified that in her culture, when a woman who has a
child marries another man, the man’s family will not
accept the
child as their own. In such circumstances there is family
consultation to decide who will take care of the child. In
the
present case the plaintiff, who had no children of her own, agreed to
take Otsepeng into her home. He was about three months
old. She
treated him as her son and he viewed her as his mother. Lenah and her
husband never provided financial support for him.
She was asked why
she did not formally adopt Otsepeng. Her answer was that ‘in
our culture we do not have these things of
adopting’.
[9]
The plaintiff was a domestic worker until 2004 when she was forced by
ill-health to give up permanent employment. She testified
that she
suffers from diabetes, high blood pressure, heart troubles and
arthritis. She has subsequently done occasional jobs as
a babysitter
and selling vegetables and vetkoek. She evidently cared well for
Otsepeng because he was able to enter the formal
job market in 2007
at the age of about 24. At the time of the collision he was earning
R6 690 per month as a financial consultant
with Old Mutual. He
continued to live with her. She testified that he supported her by
giving her cash and buying her groceries
and clothes.
[10]
This court has on several occasions in recent years considered the
extension of claims for loss of support to persons who do
not fall
within categories recognised by the common law, in particular
partners who are not married according to civil law. Most
recently,
in
Paixão & another v Road Accident Fund
2012 (6)
SA 377
(SCA), which dealt with a claim for loss of support by an
unmarried life partner and her daughter, Cachalia JA said the
following
(para 13, citation of authority omitted):
‘
The
existence of a dependant’s right to claim support which is
worthy of the law’s protection, and the breadwinner’s
correlative duty of support, is determined by the boni mores
criterion or, as Rumpff CJ in another context put it in
Minister
van Polisie v Ewels
,
the legal convictions of the community. This is essentially a
judicial determination that a court must make after considering
the
interplay of several factors: “the hand of history, our ideas
of morals and justice, the convenience of administering
the rule and
our social ideas of where the loss should fall”. In this regard
considerations of “equity and decency”
have always been
important. Underpinning all of this are constitutional norms and
values. So the court is required to make a policy
decision based on
the recognition that social changes must be accompanied by legal
norms to encourage social responsibility. By
making the boni mores
the decisive factor in this determination, the dependants’
action has had the flexibility to adapt
to social changes and to
modern conditions.’
[11]
Cachalia JA went on to refer to a passage from Mahomed CJ’s
judgment in
Amod v Multilateral Motor Vehicle Accidents Fund
(Commission for Gender Equality Intervening)
1999 (4) SA 1319
(SCA) para 7 where the Chief Justice said that the precise scope of
the dependant’s action was unclear from the writings
of the
Roman-Dutch jurists and that there were passages in Grotius and Voet
perhaps suggesting that the action might be extended
to any dependant
within the deceased’s ‘broad family whom he in fact
supported whether he was obliged to do so or not’
or to any
dependant enjoying a ‘de facto close familial relationship with
the breadwinner’. As I have said, Voet and
others were quite
clear that there was no legal duty of support beyond the second
degree of consanguinity.
[12]
However, the legal convictions of the community are not static. It
may well be that a legal duty of support which depends on
nothing
more than the happenstance of a blood relationship should be kept
within the limits indicated in our old authorities. Our
ideas of
morals and justice may not, in general, insist on support between
more distant relatives. It by no means follows that
the same approach
should be followed where the blood relationship has been fortified by
additional circumstances. And in answering
the latter question, one
must have regard to the values underlying our Constitution. One of
these is ubuntu:
‘
The
spirit of
ubuntu
,
part of the deep cultural heritage of the majority of the population,
suffuses the whole constitutional order. It combines individual
rights with a communitarian philosophy. It is a unifying motif of the
Bill of Rights, which is nothing if not a structured,
institutionalised
and operational declaration in our evolving new
society of the need for human interdependence, respect and concern.’
See
Port Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005 (1) SA
217
(CC) para 37; see also
City of Johannesburg Metropolitan
Municipality v Blue Moonlight Properties 39 (Pty) Ltd & another
2012 (2) SA 104
(CC) para 38.
[13]
Another relevant consideration is that in terms of s 211(3) of the
Constitution the court must apply customary law when that
law is
applicable, subject to the Constitution and any legislation that
specifically deals with customary law. In
United
Building Society v
Matiwane
,
cited earlier,
the plaintiff, who claimed
inter alia on behalf of the daughters of the deceased’s sister,
alleged that the deceased had been
duty bound to support his nieces
‘by native law and custom’ and that the plaintiff was
entitled to bring the claim
on their behalf as the head of the kraal
according to such law and custom. The court held that customary law
could not govern the
defendant’s liability and that our common
law did not recognise a duty of support owed by an uncle to his
nieces. By virtue
of s 211(3) of the Constitution, the answer
would be different now. What needs to be ascertained is whether in
law the one
family member owed the other a duty of support. If that
duty existed by virtue of a customary law applicable to the family,
the
duty should be recognised, even though – in a dependant’s
claim – the defendant is not itself a party bound by
customary
law.
[14]
In the present case there was no expert evidence as to customary law.
However, the plaintiff testified as to what was required
by her
culture and her evidence was not put in issue. It may well be that,
once she agreed to care for Otsepeng following family
consultation,
she had by customary law a legal duty to support him but it is
unnecessary to go so far. On her evidence, she at
least felt under a
duty to do so. She started caring for him when he was still an infant
and continued to maintain him until he
became self-supporting. Her
behaviour, and the way Otsepeng reciprocated when he became an adult,
gave expression to ubuntu. For
all practical purposes the plaintiff
adopted him, even though according to her there was no formal process
of adoption in her culture.
The de facto relationship between them
was that of mother and child. This de facto relationship was every
bit as real as the de
facto life partnerships which our courts have
accepted as giving rise to reciprocal duties of support.
[15]
In
Fosi v Road Accident Fund & another
[2007] ZAWCHC 8
;
2008 (3) SA 560
(C)
Dlodlo J provided an African law perspective of the duty of support.
Although in that case the deceased was the biological
child of the
mother, the following passage almost certainly would have been
recognised by the plaintiff and Otsepeng as applicable
to their de
facto relationship of mother and child (para 16):
‘
When
an African (black) provides support and education to his/hers
son/daughter, he/she is not only under a duty to do so on the
strength of the South African legal system, but custom also obliges
such a parent. In fact, in African tradition to bring up a
child is
to make for oneself an investment in that when the child becomes a
grown-up and is able to participate in the labour market,
that child
will never simply forget about where he came from. That child,
without being told to do so, will make a determination
(taking into
account the amount he/she earns, her travelling to and from work,
food to sustain himself and personal clothing, etc)
of how much he
must send home to the parents on a monthly basis. This duty is inborn
and the African child does not have to be
told by anybody to honour
that obligation. . . It is for this reason that the
plaintiff was puzzled on being asked
in cross-examination why the
deceased sent her money. Her answer was rather telling: “Because
the deceased knew where he
was coming from”. The duty of a
child to support a needy and deserving parent is well known in
indigenous/customary law.
It is observed by such children. There is
always an expectation on the part of a parent that his child will
honour this duty.’
[16]
In
Metiso v Padongelukfonds
2001 (3) SA 1142
(T) the court recognised a duty of
support where an uncle had accepted custody of two minor children
upon the death of their father,
his brother, even though the process
of adoption was not complete according to tribal rules because of the
absence of consultation
with the mother’s family. With
reference to this and other cases, Sutherland J in
JT
v Road Accident Fund
2015 (1) SA 609
(GJ)
said the following (para 26):
‘
It
seems to me that these cases demonstrate that the common law has been
developed to recognise that a duty of support can arise,
in a given
case, from the fact-specific circumstances of a proven relationship
from which it is shown that a binding duty of support
was assumed by
one person in favour of another. Moreover, a culturally embedded
notion of “family”, constituted as
being a network of
relationships of reciprocal nurture and support, informs the
common-law’s appetite to embrace, as worthy
of protection, the
assumption of duties of support and the reciprocal right to claim
support, by persons who are in relationships
akin to that of family.
This norm is not parochial but rather is likely to be universal, it
certainly is consonant both with norms
derived from the Roman-Dutch
tradition . . . and, no less, from norms derived from
African tradition, not least of al
as exemplified by the spirit of
Ubuntu, as mentioned by Dlodlo J in
Fosi
v RAF
supra.’
[17]
In my view it would be consistent with the legal convictions of the
community to recognise a reciprocal duty of support between
the
plaintiff and Otsepeng. Indeed, to deny it would revolt one’s
ideas of ‘morals and justice’ and considerations
of
‘equity and decency’ (see
Paixão
supra).
[18]
The defendant’s counsel submitted that such a finding would
open the floodgates to similar claims and that the RAF would
be at an
evidential disadvantage in determining whether the de facto
relationship existed. I do not think the recognition of the
duty of
support can depend on the particular position of the RAF. The
question is whether, as between the de facto mother and child,
a duty
of support exists. The fact that the breadwinner may die in a motor
accident as a result of another driver’s negligence,
leading to
potential liability on the part of the RAF, cannot affect the answer
to the question. If, for example, Otsepeng had
fallen out with his de
facto mother and stopped supporting her, her right to claim support
from him could obviously not have been
affected by the notional
possibility that he might at some stage die in a motor accident
because of another driver’s negligence.
[19]
Furthermore, there is nothing before us to show that claims of the
present kind would be very numerous. We will not be deciding
that
there is, without more, a duty of support between an aunt and her
nephew; or that such exists once it could be shown that
the nephew
has assisted his aunt financially. We are only deciding that a duty
of support exists where, in accordance with the
family’s
cultural practices, an aunt has de facto adopted an infant and
brought him up as her own child. I doubt whether
such cases are
likely to be more common than the life partnerships which have
already been recognised by the courts as giving rise
to a duty of
support.
[20]
In any event, the ‘evidential disadvantage’ should not be
overstated. There are many aspects of claims against
the RAF which
depend on information of which the RAF in the nature of things can
have no knowledge. Where loss of support is claimed,
para 18 of the
prescribed RAF 1 form requires all necessary particulars to be
furnished, including the reason for dependence. Where
the duty of
support rests on a de facto relationship rather than a blood or
marital relationship recognised by law, the proper
answering of this
component of the form would require adequate particularity to be
given. The RAF could ask the claimant to provide
corroborating
information under oath, with the warning that if the claimant fails
to do so but eventually succeeds at trial, the
RAF will ask for an
adverse costs order. By signing the prescribed form, the claimant
expressly gives the RAF consent to obtain
information and documents
from any persons who are able to provide it. After the institution of
proceedings the RAF could file
a request for further particulars for
purposes of trial. It could consult with other family members.
[21]
The other question we must decide is whether the plaintiff’s
financial circumstances are such that she is entitled to
enforce the
duty of support. In
Oosthuizen v Stanley
1938 AD 322
it was
said that a child has a duty to support his parents if they are
‘indigent’. Tindall JA referred to support in
the form of
food, clothing, lodging and medical care ‘in accordance with
the quality and condition of the persons to be supported’.
Whether a parent is in such a state of ‘comparative indigency
or destitution’ was said to be a question of fact depending
on
the circumstances of each case (p 328). The word ‘comparative’
was presumably used by the learned judge to
emphasise that the
exercise should be undertaken with reference to the ‘quality
and condition of the persons to be supported’
so that what
might constitute indigence with reference to one person would not
necessarily constitute indigence with reference
to a more humble
person (see
Van Vuuren v Sam
1972 (2) SA 633
(A) at 642E-F and
643E-F). Even so, support is limited to the dependant’s basic
needs – food, clothes, board and medical
care (at 642F).
[22]
Just as the existence of a duty of support is affected by
considerations of public policy, so in my view is the content of
the
duty. With the advent of democracy and abolition of apartheid, people
disadvantaged under the previous regime have the opportunity
of
improving their economic lot. One of the ways of doing so is by
providing children with opportunities denied to their parents.
I do
not think it would be consistent with our constitutional values to
hold that an indigent woman, who has been able to raise
and educate a
child despite her straitened circumstances, can expect no more
support from the child than is necessary to keep her
in the same
deprived circumstances as she was forced to endure for most of her
life.
[23]
The plaintiff testified that while Otsepeng was alive they lived in
Hillbrow where her accommodation cost R1 000 per month.
Since
Otsepeng’s
death she has had to move back to her rural roots (she
called it her homeland) where she now pays R600 for accommodation.
She estimated
her monthly grocery and transport expenses at R1 000
and R350 respectively. She also pays (or used to pay) a monthly
amount
to a burial society. In cross-examination she was asked to
confirm that these were her expenses. She replied:
‘
I
have highlighted those things before court although they themselves
are accommodated to the grant that I receive and again what
will it
help me if I highlight to this court much more things, there is quite
a lot of things to life. There is quite a lot of
things to spend in
the life of today that are in need to a person to survive.’
[24]
The grant mentioned in this passage is an old age pension which she
has been receiving since she turned 60 (which would have
been in
2011). This amounted to R1 350 as at August 2015. She testified
that while Otsepeng was alive he would pay her between
R1 200
and R1 300 per month in cash, which she spent on rent,
medication and her burial society contributions. In addition
he would
buy groceries. From time to time he would also buy her clothes. She
was asked about her lifestyle before his death. She
replied:
‘
I
was leading a very nice lifestyle your ladyship even in clothing.
[Otsepeng] sometimes said to me Mama let’s go out, let
me go
and buy you something that will make you look nice.
And
now ma’am what is your lifestyle now like? Even
now in clothing your ladyship it is a disaster
with me. I do not have
nice clothes any more. I do not live a lifestyle which I used to
live.’
[25]
The defendant’s counsel submitted that this demonstrated that
the plaintiff was wanting support for luxuries. I disagree.
Otsepeng’s income was not large. He no doubt wanted the
plaintiff to be able to dress in a way which lent her dignity and
gave her a certain basic pleasure. I do not think that that goes
beyond her basic needs.
[26]
In regard to her selling of vetkoek, the plaintiff said that the
income was sporadic. She required assistance to sell as she
could not
stand for a long time. When she ran out of money she looked to other
relatives for help. As noted, she has moved back
to the countryside
to reduce the cost of her accommodation. Her household consists of
herself and an unemployed daughter of her
deceased brother, for whom
it seems she is caring on much the same basis as she took Otsepeng
into her home. The daughter has a
child whom the plaintiff described
as her grandchild.
[27]
It is clear, in my view, that R1 350 per month, plus modest
sporadic income from selling vetkoek, is not enough to cover
the
plaintiff’s basic necessaries of life, such as are reasonably
appropriate to her station in life following Otsepeng’s
successful entry into the job market in 2007. At that time she was
living in Hillbrow and she should not be denied the opportunity
of
returning there, particularly since she is likely to have increasing
need of medical care as she ages. Even if one confines
her
accommodation expenditure to the current amount of R600, that leaves
only R750 for groceries, clothing, transport, burial society
contributions and other incidental expenses. That is not enough to
save her from indigence, even if it be assumed that all medical
expenses are provided free of charge by State facilities.
[28]
In the circumstances, it is unnecessary to decide whether the
plaintiff’s ability to obtain free medical services from
the
State should be taken into account when it comes to quantifying her
claim for loss of support. When that question comes to
be answered,
the parties will need to have regard to the recent judgment of the
Constitutional Court in
Member
of the Executive Council for Health and Social Development, Gauteng v
DZ obo WZ
[2017]
ZACC 37
(31 October 2017). In para 23 of the majority judgment,
Froneman J said the following with reference to this court’s
decision
in
Ngubane
v South African Transport Services
[1990]
ZASCA 148
; 1991 (1) SA 756 (A):
‘
Ngubane
is
authority for allowing a defendant to produce evidence that medical
services of the same or higher standard, at no or lesser
cost than
private medical care, will be available to a plaintiff in future. If
that evidence is of a sufficiently cogent nature
to disturb the
presumption that private future healthcare is reasonable, the
plaintiff will not succeed in the claim for the higher
future medical
expenses. This approach is in accordance with general principles in
relation to the proving of damages.’
Froneman
J disapproved the contrary conclusion in the more recent decision of
this court in
The
Premier, Western Cape N.O. v Kiewitz
[2017]
ZASCA 41
;
2017
(4) SA 202
(SCA). If this approach were extended to claims for
loss of support incorporating future medical treatment, the passage I
have
quoted suggests that the evidential burden would rest on the RAF
to show that the plaintiff does not reasonably require private
medical treatment as part of her support.
[29]
I thus make the following order:
The
appeal is dismissed with costs.
____________________
O L Rogers
Acting Judge of Appeal
APPEARANCES
For
Appellant
R Strydom (with him
CPJ Strydom)
Instructed by
FourieFismer
,
Pretoria c/o
Maduba
Attorneys,
Bloemfontein
For
Respondent
P Lourens
Instructed by
Spruyt
Inc, Pretoria c/o Webbers
Attorneys,
Bloemfontein
[1]
See eg
Denel
(Edms) Bpk v Vorster
[2004]
ZASCA 4
;
2004 (4) SA 481
(SCA) para 3;
Absa
Bank Ltd v Bernert
[2010]
ZASCA 36
;
2011 (3) SA 74
(SCA) para 21.