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[2017] ZAGPPHC 62
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Boy v Road Accident Fund (20753/13) [2017] ZAGPPHC 62 (28 February 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
28/02/2017
CASE
NUMBER: 20753/13
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
SABELO
SYDNEY BOY PLAINTIFF
And
ROAD
ACCIDENT FUND DEFENDANT
JUDGMENT
KUBUSHI,
J
[1]
The matter before me is for a claim for maintenance against the Road
Accident Fund. The merits part of the claim has been settled
at 100%
in favour of the plaintiff. What is outstanding is the
quantum
part of the claim. Defendant has admitted all the issues of
quantum
but would like the court to determine whether the plaintiff is
entitled to claim maintenance resulting from the death of a child.
The defendant is also not satisfied about the contingency deductions
contained in the actuarial report.
[2]
The crux therefore is whether the plaintiff is legally entitled to
maintenance from his daughter and whether the contingencies
in the
actuarial report are correct.
MAINTENANCE
[3]
The plaintiff is the only witness that gave evidence. The plaintiff
is sixty nine years old and presently stays in Folweni Township
in
the vicinity of Umlazi in Kwa-Zulu Natal. It is common cause that the
plaintiff's daughter Purity Thembeka Sabelo ("Thembeka")
died in a motor collision in 2012. At the time of her death she was
employed. It is, however, not said how much she earned. The
plaintiff
on the other hand was not employed as he is a pensioner. Thembeka
contributed towards his daily living expenses. She
used to give money
to the plaintiff's wife, who, unfortunately also passed on after the
death of Thembeka, on a monthly basis for
the household necessities.
With that money the plaintiff's wife would buy groceries for the
household, candles, paraffin and pay
for household utilities.
[4]
At the time Thembeka died, the plaintiff was already a pensioner and
was receiving an amount of R1 200 old age pension. At the
moment he
receives R1 500. After buying household necessities there was no
money left mainly because the wife was also sickly and
constantly
required medical attention. The plaintiff testified that according to
his Zulu custom and tradition it is the duty of
a child, if such a
child is working, to maintain her/his parents. Thembeka had a duty to
maintain him.
[5]
Under cross examination it was determined that the plaintiff has two
surviving children - before the death of Thembeka they
were three.
The eldest child was born in 1980 and the young one in 1982. They are
all living together. There are actually six other
children from the
plaintiff's wife's side of the family who are staying with them and
the plaintiff is responsible for their maintenance.
Thembeka's twin
Thandeka is working and sometimes contributes to the household needs.
She cannot contribute much because she has
a child to maintain and
also pays for her studies. The boy, Sihle is unemployed but at times
he gets odd jobs. The plaintiff left
work because of an injury he
sustained on duty but he was already of a pensionable age. When he
left work he was given an amount
of R230 000. He used this money for
a traditional wedding celebration, renovated his house and used the
remaining amount for other
household requirements. The money is all
used up. With his pension grant and Thandeka's contribution they can
only afford the bare
necessities of life - no luxuries.
ARGUMENT
[6]
The submission by the plaintiff's legal representative is that there
was a duty on the plaintiff's daughter, Thembekile to maintain
the
plaintiff due to tradition and custom. He concedes that to prove a
claim the parent should be indigent but argued that indigency
does
not mean that the claimant should be poor and have nothing.
[7]
The defendant's legal representative's contention is that in case of
loss of support the requirement is that the person claiming
should be
indigent in order to qualify. According to her, the plaintiff is not
indigent because he has money. He receives government
pension grant
every month and the duty to support him has now shifted on Thandeka
who is presently working.
[8]
The parties referred me to the following judgments:
Fosi v Road
Accident Fund 2008
(3) SA 560 (C) and
Jermimah Tutubala v Road
Accident Fund
2014/34463 Gauteng Local Division.
THE
LAW
[9]
From my reading of the judgments I have been referred to it appears
as if the test for a parent's entitlement to maintenance
from her/his
child is no longer indigency but whether the parent can prove that
she/he was dependant on the child's contribution
for the necessities
of life.
[1]
[10]
I am in agreement that the test for indigency is too onerous and
difficult to prove. It may result in many who are in need
of the
maintenance contribution not being able to claim. The reformulated
test is much easier to prove. What constitutes necessities
of life
depends on the individual parent's lifestyle.
[11]
I am satisfied therefore that the plaintiff in his evidence was able
to show on a balance of probabilities that he is in need
of the
maintenance contribution. The evidence shows that the amount of the
government pension he receives is inadequate and cannot
meet all his
household necessities. He does not live a luxurious life. He is a
simple man who requires only the bare necessities
of life. His money
goes only towards groceries and the household utilities and nothing
else. He does not have anything left after
he has expended his
monthly income. The plaintiff has also been able to establish his
dependency on Thembekile during her lifetime.
[12]
The plaintiff's claim in this regard should succeed.
CONTIGENCY
CALCULATIONS
[13]
The parties are common cause in regard to the figures used in the
actuarial report. What is in dispute are the contingency
percentages.
The actuary has deducted a contingency percentage of 5% for accrued
loss and 10% for prospective loss. These contingencies
have been
calculated on the life expectancy between the plaintiff and the
deceased
[14]
The plaintiff's legal representative's submission is that the
contingency percentages used in the actuarial report are correct
because the plaintiff is an elderly person.
[15]
According to the legal representative of the defendant the
calculations should have been based on the life expectancy of the
plaintiff as such there must be a higher contingency. The possibility
of the deceased getting married and having her own family
is not
factored in, so she argued. She suggests a deduction of 30% for past
loss and 45% for future loss.
[16]
The parties referred me in this regard to the judgment in
R B E v
Road Accident Fund 20179/2013 Gauteng Division, Pretoria 15/12/2014
para [39].
[17]
It is my view that the contingency calculations in the actuarial
report are correct. I find the percentages to be fair and
reasonable
in the circumstances of this matter. The plaintiff is as a result
awarded an amount of R340 690 for damages for loss
of support.
[18]
I make the following order:
18.1
The plaintiff's claim for damages for loss of support succeeds with
costs on a party and party scale.
18.2
The defendant shall pay the sum of R340 690 together with interest at
the rate of 9%
per annum
to the plaintiff after fourteen court
days from date of this order to date of payment
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
APPEARANCES:
HEARD
ON THE:
09
February 2017
DATE
OF JUDGMENT: 28
February 2017
PLAINTIFF'S
COUNSEL:
Mr.
H.W. Theron
PLAINTIFF'S
ATTORNEYS: H
W Theron Inc.
DEFENDANTS'
COUNSEL:
Adv.
D. M. Matlhabegoane
DEFENDANTS'
ATTORNEY Borman
Duma Zitha Attorneys
[1]
See
Fosi v Road Accident Fund above,at para [13]