About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2017
>>
[2017] ZASCA 164
|
|
Septoo obo Septoo and Another v Road Accident Fund (058/2017) [2017] ZASCA 164 (29 November 2017)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 058/2017
In the matter between:
CHINAZ
SEPTOO obo J M SEPTOO
&
M
SEPTOO
APPELLANT
and
THE
ROAD ACCIDENT FUND
RESPONDENT
Neutral citation:
C Septoo obo J M Septoo &
another v The Road Accident Fund
(058/2017)
[2017] ZASCA 164
(29 November 2017)
Coram:
Tshiqi, Majiedt and Mocumie JJA, Mbatha and Rogers
AJJA
Heard
:
09 November 2017
Delivered
:
29 November 2017
Summary:
Delict – action for damages –
loss of support – dependant's action – breadwinner died
as a result of own
negligence – single vehicle accident –
wrongfulness not established against the Road Accident Fund –
appeal dismissed.
ORDER
On
appeal from:
Eastern Cape Local
Division of the High Court, Port Elizabeth (Schoeman J sitting as
court of first instance):
The appeal is
dismissed.
JUDGMENT
Mbatha AJA (Tshiqi, Majiedt and Mocumie JJA and
Rogers AJA concurring)
[1] The appeal before
us is with the leave of the high court, Eastern Cape Local Division,
Port Elizabeth. The issues on appeal
are; first, whether dependants,
in the position of the appellant Ms Chinaz Septoo, and her minor
children, are entitled to claim
compensation for loss of support from
the respondent, the Road Accident Fund (the Fund) in terms of the
Road Accident Fund Act
56 of 1996 (the Act) in circumstances where
the deceased breadwinner was the sole cause of the collision; second,
whether the common
law should be developed to include such claims.
[2]
The
deceased, who was the driver of the motor vehicle at the time of the
collision, was married to the appellant and was the father
to both
her minor child and unborn child. The appellant and her minor child
were both passengers in the said motor vehicle. The
deceased
negligence was the sole cause of the collision. In a separate action
the Road Accident Fund (the Fund) was declared liable
for the
appellant and her minor child’s general damages and future
medical expenses. In another action giving rise to the
present
appeal, she claimed damages for loss of support.
[3] Section 3 of the Act
stipulates that:
‘
The
object of the Fund shall be the payment of compensation in accordance
with this Act
for loss or
damage wrongfully caused by the driving of motor vehicles.’
The underlying basis
for the Act is the common law principles of the law of delict. A
claimant must therefore prove all the elements
of a delict before it
can succeed with its claim in terms of the Act.
[4] In
Legal
Insurance Company Ltd v Botes
[1]
this Court described the nature of the dependants’
claim for loss of support in the following manner:
‘
At
the outset it is necessary to deal with the nature and scope of the
action, according to existing South African Law, by dependants
against a person who has unlawfully killed the bread-winner who was
legally liable to support them. The remedy was unknown to Roman
Law,
in which no action arose out of the death of a freeman, and
consequently the Aquilian action was not available. It had its
origin
in Germanic custom, in which the reparation of “maaggeld”
was regarded as a conciliation to obviate revenge
by the kinsmen of
the deceased, and it was divided among the latter’s children or
parents or other blood relatives. The Roman-Dutch
Law modified the
custom by regarding the payment as compensation to the dependants for
loss of maintenance. The Roman-Dutch jurists
felt that this could be
accommodated within the extended framework of the Roman Aquilian
action by means of a
utilis
actio.
The remedy
has continued its evolution in South Africa - particularly during the
course of this century - through judicial pronouncements,
including
judgments of this Court, and it has kept abreast of the times in
regard to such matters as benefits from insurance policies.
The
remedy relates to material loss “caused to the dependants of
the deceased man by his death”. It aims at placing
them in as
good a position, as regards maintenance, as they would have been in
if the deceased had not been killed. To this end,
material losses as
well as benefits and prospects must be considered. The remedy has
been described as anomalous, peculiar, and
sui
generis
- but it is
effective.’
[2]
[5] In
Evins
v Shield Insurance Co Ltd
[3]
this Court illustrated the
distinction between a dependant's claim, and a damages action for
bodily injuries as follows:
‘
In
the case of an Aquilian action for damages for bodily injury . . .
the basic ingredients of the plaintiff's cause of action are
(a)
a wrongful act by the defendant causing bodily injury,
(b)
accompanied by fault, in the sense of
culpa
or
dolus
,
on the part of the defendant, and (c)
damnum
,
ie loss to plaintiff's patrimony, caused by the bodily injury. The
material facts which must be proved in order to enable the
plaintiff
to sue (or
facta
probanda
)
would relate to these three basic ingredients and upon the
concurrence of these facts the cause of an action arises. In the
usual
case of bodily injury arising from a motor accident this
concurrence would take place at the time of the accident.’
On the other hand, in the case of
action for damages for loss of support, the basic ingredients of the
plaintiff’s cause of
action would be (
a
)
a wrongful act by the defendant causing the death of the deceased,
(
b
)
concomitant
culpa
(or
dolus
)
on the part of the defendant, (
c
)
a legal right to be supported by the deceased, vested in the
plaintiff prior to the death of the deceased, and (
d
)
damnum
,
in the sense of a real deprivation of anticipated support. The
facta
probanda
would
relate to these matters and no cause of action would arise until they
had all occurred.’
[4]
[6]
In
Aetna
Insurance Co v Minister of Justice
[5]
this Court said that the
purpose of motor vehicle insurance legislation was to remedy the evil
‘that members of the public
who are injured, and the dependants
of those who are killed, through the negligent driving of motor
vehicles may find themselves
without redress against the wrongdoer.
If the driver of the motor vehicle or his master is without means and
is uninsured, the
person who has been injured or his dependants, if
he has been killed, are in fact remediless and are compelled to bear
the loss
themselves. To remedy that evil, the Act provides a system
of compulsory insurance.’
[6]
[7] The provisions of
the Act that are relevant to the present enquiry are ss 17, 19 and
21. Section 17 confers on a third party
a right to claim against the
Fund for any loss or damage suffered by him or her as a result of
personal injury to himself or herself,
or death of or any personal
injury to any other person, if the injury is due to the negligence or
other wrongful act of the driver
or owner of the motor vehicle.
[8] Section 19
(a)
of
the Act excludes liability for the Fund in certain cases. It provides
that:
‘
The
Fund or an agent shall not be obliged to compensate any person in
terms of section 17 for any loss or damage –
(a) for which
neither the driver nor the owner of the motor vehicle concerned would
have been liable but for section 21; or
(b)
. . .’
[9] Section 21(1) provides
that:
‘
(1)
No claim for compensation in respect of loss or damage resulting from
bodily injury to or the death of any person caused by
or arising from
the driving of a motor vehicle shall lie–
(a)
against the owner or driver of a
motor vehicle; or
(b)
against the employer of the driver.
(2) Subsection
(1) does not apply –
(a)
if the Fund or an agent is unable to
pay any compensation; or
(b)
to an action for compensation in
respect of loss or damage resulting from emotional shock sustained by
a person, other than a third
party, when that person witnessed or
observed or was informed of the bodily injury or the death of another
person as a result of
the driving of a motor vehicle.’
[10] In
Mlisane v South African Eagle Insurance Co
Ltd
[7]
the facts and the legal question
raised were similar to the ones raised in this case. The court in
that matter held that:
‘the
defendant incurs liability because he has acted wrongfully and
negligently (or with
dolus
)
towards the deceased and thereby caused the death of the
deceased.’
[8]
It
held further that the right of action was against a third party who
unlawfully caused the death of a breadwinner and not against
the
estate of a breadwinner who caused his own death.
[9]
[11] In
Amod
v Multilateral Motor Vehicle Accidents Fund
[10]
this Court set out the requirements for the action
for dependants, being that:
‘
(a)
The claimant for loss of support resulting from the
unlawful killing of the deceased must establish that the deceased had
a duty
to support the dependant;
(b)
It
had to be a legally enforceable duty;
(c)
The
right of the dependant to such support had to be worthy of protection
by the law;
(d)
The
preceding element had to be determined by the criterion of
boni
mores
.’
[12]
In
Amod
the requirement of the unlawful killing of the deceased was
reaffirmed as an essential requirement.
This Court in
Du
Plessis v Road Accident Fund
[11]
stated as follows:
‘
In
terms of s 17 of the Act the defendant or an agent is, subject to the
provisions of the Act, obliged to compensate any person
for any loss
or damage which that person has suffered as a result of the death of
any other person caused by or arising from the
driving of a motor
vehicle if the death is due to the negligence of the driver or owner
of the vehicle. Section 19
(a)
of the Act exempts the defendant from liability for loss or damage
for which neither the driver nor the owner of the motor vehicle
which
caused the deceased’s death, would have been liable at common
law.’
[12]
[13] In
Brooks
v Minister of Safety and Security
[13]
,
w
here
this Court had to deal with whether a claim for maintenance against
the Minister of Safety and Security by the dependant of
a convicted
criminal was competent or not, the following was
said
:
‘
It
is true that in matters of human behaviour we are often told not to
judge by results, but in law, when considering whether a
contention
is well-founded, the absurdity of the results to which it will give
rise is not an immaterial consideration. That a
person in the
position of Brooks could by his own intentional wrongful act create
in favour of his dependants a cause of action
that would not
otherwise exist is nothing short of preposterous; indeed in my view
that would be a dangerous proposition. After
all it is a trite
principle of our law, that a person should not be allowed to benefit
from his/her own wrongful act.’
[14]
[14] The reasoning
adopted by this Court as illustrated above is consistent with the
common law position. In my view the Act codifies
the common law
position, which recognises that compensation for loss of support can
only arise from the unlawful killing of the
breadwinner by a another
person. Section 19(a) expressly states that liability is excluded in
certain cases. Therefore the dependants
in the case of the deceased,
who died as a result of his own negligence, do not have a cause of
action for damages for loss of
support.
[15] In
order
to bolster its contention that the dependants should be eligible to
claim even if the breadwinner was the sole cause of the
accident, the
appellants contended that the common law should be developed.
In
Carmichele v Minister of Safety and
Security
,
[15]
the Constitutional Court warned judges to be
mindful that the major engine for law reform should be the
Legislature and not the
Judiciary. It stated that ‘the
Judiciary should confine itself to those incremental changes which
are necessary to keep the
common law in step with the dynamic and
evolving fabric of our society’.
[16]
[16] In
Cape
Town City v South African National Roads Authority & others
[17]
this Court said:
‘
.
. . if the common law is to be developed, it must occur not only in a
way that meets the s39(2) objectives, but also in a way
most
appropriate for the development of the common law within its
paradigm. Faced with such a task, a court is obliged to undertake
a
two-stage enquiry: It should ask itself whether, given the objectives
of s 39(2), the existing common law should be developed
beyond the
existing precedent – if the answer to that question is a
negative one that should be the end of the enquiry. If
not, the next
enquiry should be how the development should occur and which court
should embark on that exercise.’
[18]
[17] In this matter
the appellant has failed to lay the basis for the proposed
development. The effect of such a development would
amount to
jettisoning an essential element of the law of delict, ie
wrongfulness. In any event
Du Plessis
and
Brooks
,
to the extent relevant to the issues in this matter, affirmed the
common law position in the existing current constitutional
dispensation. The decision in
Mlisane
was cited with approval in
Amod.
[19]
This is the correct approach that is still
applicable to cases of this nature and there is no uncertainty to the
law.
[18]
For
its contention that the common law should be developed, the appellant
also seeks to place reliance on
the Apportionment of Damages Act 34 of
1956. According to the appellant the Apportionment of Damages Act 34
of 1956 discriminates
against dependants’ claims for loss of
support where only a single vehicle is involved in an accident as
opposed to where
there are joint wrongdoers. This argument is based
on s 2(1B) which provides as follows:
‘
Subject
to the provisions of the second proviso to subsection (6)(a), if it
is alleged that the plaintiff has suffered damage as
a result of any
injury to all the death of any person and that such injury or death
was caused partly by the fault of such injured
or deceased person and
partly by the fault of any other person, such injured person or the
estate of such deceased person, as the
case may be, and such other
person shall for the purposes of this section be regarded as joint
wrongdoers.’
[19] The
discrimination argument is misconceived. The purpose of s 2(1B) is
not to grant a remedy to the dependant against the deceased
breadwinner. Its purpose is to ensure that the other negligent party
can reduce his own liability by bringing into account the
negligence
of the deceased breadwinner. Boberg says this of the amendment in
terms of The Apportionment of Damages Amendment Act:
[20]
‘
It
appears, then, that the effect of this amendment on its literal
wording is not merely to grant a third party a right of contribution
against a guilty spouse, but to abolish the common-law prohibition of
actions in delict between spouses married in community for
the
purposes of s 2 of the Act, ie
if
the defendant spouse was a joint wrongdoer
.
But what if he was the
sole
wrongdoer
? The Act
does not deal with that situation: the common-law prohibition
therefore remains.’
[21]
[20] The appellant
argued that the deletion of s 19
(b)
of the Act in 2008 showed that the liability which the appellant
asserts in the present case was no longer excluded. Section 19
(b)
previously excluded the Fund’s liability for loss or damage
suffered as a result of bodily injury to or the death of any
passenger who was a member of the household of the negligent driver
of the vehicle. The simple answer is that on the previous
restrictions applied to claims arising from the injury or loss caused
to the claimant directly or from the death of a breadwinner
who was
also a passenger in the vehicle. The exclusion was not directed at
the type of liability asserted by the appellant in the
present case –
no such liability ever existed.
[21] In circumstances
such as the present, the appellant and the minor children have a
right to claim for loss of support against
the estate of the
deceased. This is a liability which exists regardless of the manner
in which the deceased died. There is thus
no conceivable basis to
extend the common law to create another action on their behalf. That
is not the role of the courts. It
is thus not necessary to develop
the common law in this regard.
[22] The only
question that remains for consideration is that of costs. The
respondent as the successful party in this litigation
is entitled to
costs as a general rule. Though the general rule is that costs should
follow the result, the issue of costs is an
exercise of a judicial
discretion. In the case where a party has been successful, there must
be exceptional circumstances, to deprive
the successful party of its
costs. A court ‘should take into consideration the
circumstances of each case, . . . the conduct
of the parties and any
other circumstance which may have a bearing upon the question of
costs, and then make such order as to costs
as would be fair and just
between the parties.’
[22]
[23] I have
considered whether it will be in the interests of justice to make an
order of costs against the appellant and it is
my view that
exceptional circumstances exist that should persuade this Court not
to mulct the appellant with costs. Though the
litigation was not
undertaken to assert a constitutional right, the issue raised by the
appellant was of broad public concern and
in the public interest. We
were told that there are a number of such claims in the pipeline and
that the present matter is in the
nature of a test case. Private
litigants should not be discouraged to approach the courts on issues
that affect the general public,
for fear of being mulcted with costs.
[24] In
Hotz
& others v University of Cape Town
[23]
the Constitutional Court held that the starting point when
determining an award for costs is to have regard to the ‘nature
of the issues’ between the parties. In considering whether the
appellant should be held liable for the costs of the appeal,
I have
taken into consideration the nature of the claim. This claim was not
a frivolous exercise. It addressed concerns which had
been brought
through the various divisions of the high court. This matter will
hopefully clear the uncertainty brought about the
Fund due to the
fact that the Fund had settled similar claims in the past and
rejected others.
[24]
(See also
Ferreira v Levin NO &
others
;
Vryenhoek
& others v Powell NO & others
).
[25]
[25] In the light of
the aforementioned I make an order that each party should pay its own
costs in the appeal. Accordingly the
appeal fails.
[26] The following order is
made:
The appeal is
dismissed.
___________________
Y T Mbatha
Acting
Judge of Appeal
Appearances
For appellants:
A Frost (with him A White)
Instructed by: Ingram & Louis
Attorneys, Port Elizabeth
A P Pretorius & Vennote, Bloemfontein
For respondent:
P E Jooste (with him T Rossi)
Instructed by: Friedman
Scheckter, Port Elizabeth
Honey Attorneys, Bloemfontein
[1]
Legal Insurance Company Ltd v Botes
1963 (1) SA 608;
[1963]
1 All SA 593 (A).
[2]
Ibid at 614B-E.
[3]
Evins v Shield Insurance Co Ltd
1980 (2) SA 814 (A); [1980] 2 ALL SA 40 (A).
[4]
Ibid
at
838H-839C.
[5]
Aetna Insurance Co v Minister of Justice
1960 (3) SA 273
(A).
[6]
Ibid at
285A-B.
[7]
Mlisane v South African Eagle Insurance Co Ltd
1996 (3) SA 36
(C).
[8]
Ibid at 41G.
[9]
Ibid at 41E-F.
[10]
Amod
v Multilateral Motor Vehicle Accidents Fund
(Commission for
Gender Equality Intervening)
1999 (4) SA 1319
(SCA);
1999 4 All SA
421
(A) para 12.
[11]
Du Plessis v Road Accident Fund
2004 (1) SA 359 (SCA).
[12]
Ibid
para 6
[13]
Brooks v Minister of Safety and Security
[2008] ZASCA 141;
2009 (2) SA 94 (SCA); [2009] 2 All SA 17 (SCA).
[14]
Ibid para 16.
[14]
See also
Mnguni v
Road Accident Fund
(1090/2014)
[2015] ZAGPPHC 1074 (26 November 2015).
[15]
Carmichele v Minister of Safety
and Security
&
another (Centre for Applied Legal Studies Intervening) 2001 (4) SA
938 (CC)
; 2001
(10) BCLR 995 (CC).
[16]
Ibid para 36.
[17]
Cape
Town City v South African National Roads Authority & others
[2015]
ZASCA 58
;
2015 (3) SA 386 (SCA);
[2015]
2 ALL SA 517 (SCA).
[18]
Ibid para 29.
[19]
Amod
fn 10 para
6.
‘
It
constitutes the juristic basis for any claim which the appellant
might have against Biyela and therefore against the respondent
which
is only obliged to compensate the dependants of a deceased for
losses suffered by them in consequence of a motor accident
caused by
the negligent or other unlawful conduct of the driver of the
relevant motor vehicle, if such a driver would have been
liable for
such losses at common law.’
[20]
The Apportionment of Damages Amendment Act 58 of
1971.
See Boberg 1971 SALJ 452.
[21]
P Q R Boberg, ‘
The
Apportionment of Damages Amendment Act 58 of 1971:
Reform
of the law regarding delictual actions between spouses married in
community and the dependants’ action’ (1971)
423 SALJ at
433.
[22]
Fripp v Gibbon & Co
1913
AD 354
at 363.
[23]
Hotz & others v University of Cape Town
[2017] ZACC 10
’
2017 (7) BCLR
815
(CC) para 29.
[24]
Khonziwe Ntombizanele Mbambani v Road Accident
Fund
Case no 340/2015 Eastern Cape
Local Division, Port Elizabeth, 02 March 2016.
[25]
Ferreira v Levin NO & others
;
Vryenhoek & others v Powell NO &
others
[1996] ZACC 27
;
1996 (2) SA 621
(CC);
1996 (4)
BCLR 441
(CC) para 3.