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2017
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[2017] ZAFSHC 172
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Mohajane v Road Accident Fund (2718/2015) [2017] ZAFSHC 172 (5 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES
Of
Interest to other Judges: YES
Circulate
to Magistrates: NO
Case
number: 2718/2015
In
the matter between:
ELSIE
MALETHOLE
MOHAJANE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
CORAM:
LEKALE, J
HEARD
ON:
12
AND 15 SEPTEMBER 2017
JUDGMENT
BY:
LEKALE,
J
DELIVERED
ON:
5
OCTOBER 2017
Summary:
Delict- Loss of support- Extension of claim
to survivor of heterosexual cohabitative relationship-
As at date of
death plaintiff and deceased staying with their minor child, who
carries the latter’s surname, at the residence
of the
deceased’s aunt with blessings of their elders who met agreeing
deceased to pay lobola once in a financial position
to do so –
Deceased using monthly allowance to contribute towards
maintenance of plaintiff and minor child who both
remained at aunt’s
house in his absence- Claim allowed.
INTRODUCTION
AND BACKGROUND
[1]
This is, in essence, a stated case in an action for loss of support
instituted by the surviving partner of a cohabitative relationship
following the death of her partner. Plaintiff is mother to
Machogo
Thato Sehloho,
a minor child of one
Hendry
Matsheliso Sehloho
(the
deceased), who sustained fatal injuries in a collision with a vehicle
insured by defendant on 18 September 2012.
[2]
As at the date of his death the deceased had been cohabiting with the
plaintiff at his aunt’s house since August 2011
when the child,
with whom they were staying, was born.
[3]
Pursuant to the fatal accident plaintiff instituted action for loss
of support in the instant matter both in her personal capacity
and on
behalf of the minor child. The claim lodged on behalf of the minor
child has since been settled by the parties and only
the plaintiff’s
personal claim serves before the court for adjudication.
[3]
In the statement of facts filed the parties are in agreement that the
deceased’s aunt, who raised him, was responsible
for his
studies in Bloemfontein and, further, gave him a R2 000-00
monthly allowance which he, on his part, used to support
himself at
school and to contribute towards the maintenance of the plaintiff and
the child back home.
[4]
It is, further, patent
ex
facie
the statement of facts that the plaintiff and the deceased, as
represented by their elders, intended to conclude a customary union,
with the deceased paying lobola, upon completion of his studies and
commencement, on his part, of employment.
[5]
On 12 September 2017, when the matter first served before me, the
parties agreed to state a case for adjudication after it became
clear
that their dispute is limited to a question of law insofar as there
exist no factual disputes between them. The parties
have since
obliged with the statement of facts, duly signed, being filed
together with heads of arguments on 15 September 2017.
ISSUE
FOR DETERMINATION
[6]
The parties are at variance on whether or not the deceased, as of
law, owed the plaintiff duty of support as at the date of
his death
with the plaintiff contending that such duty was owed to her regard
being had to case law and the peculiar as well as
sui
generis
nature of the claim in question. Defendant, on its part,
maintains that such duty did not exist on the part of the deceased
insofar as he was not married to the plaintiff at all.
[7]
In the event of the above question being decided in the affirmative,
I am required to award plaintiff damages as claimed insofar
as the
quantum of her damages, as reflected in the actuarial report filed,
is not in dispute.
CONTENTIONS
FOR THE PLAINTIFF
[8]
Mr Berry for the plaintiff submits to,
inter
alia
,
the effect that the agreed facts are such that the instant matter is
an appropriate case for the court to extend the relevant
remedy to
the plaintiff regard being had to
boni
mores
,
our constitutional values, recent legislation and case law, among
others. He, further, reminds the court that plaintiff’s
expert reports are also not in dispute and it is clear from the same
that plaintiff’s quantum for loss of support amounts
to
R2 871 823 after contingencies have been applied. In
his view the amount claimed is, however, less insofar as
it amounts
to R2 264 329.
CONTENTIONS
FOR THE DEFENDANT
[9]
On behalf of the defendant Mr Mopeli submits to,
inter
alia
,
the effect that no such duty existed and that the facts in the
instant matter do not justify the extension of the relevant remedy
to
the plaintiff who only had the deceased’s promise to marry her
at a future undetermined date. He, further, reiterates
that
cohabitation cannot
per
se
create
a duty to maintain. The duty in question must have existed, as
a matter of fact, during cohabitation and not as a mere
possibility
at some future date.
APPLICABLE
LEGAL POSITION
[10]
A dependant’s claim for loss of support as a result of the
unlawful killing of another is only valid if the deceased
had a
legally enforceable duty to support such dependant and if the right
of the dependant to such support was worthy of protection
by way of
an action. (See
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814(A)).
[11]
The law attaches a duty of support to various family relationships
such as husband and wife and parent and child. Such
a duty of
support might be inferred as a matter of fact in certain cases such
as persons involved in same-sex permanent life partnerships.
Whether the duty of support existed or not depends on the
circumstances of each case. (See
Du
Plessis v Road Accident Fund
2004
(1) SA 359
(SCA)
paras
[11], [12] and [13]).
[12]
The duty to support can arise
ex
contractu
where the deceased had undertaken, expressly or tacitly, to support
the plaintiff with the intention of being legally bound by
such an
undertaking. The question as to whether or not the plaintiff’s
right of support is worthy of protection depends
on whether or not
the killing of the deceased was a wrongful act as against the
plaintiff. The answer to the relevant question
depends on the
prevailing
boni
mores
.
When the constitutional values of equality and human dignity dictate
that such protection be extended to the plaintiff the
court obliges.
(See
Du
Plessis v Road Accident Fund
(
supra
)
paras [19] to and including [26])
[13]
Where the facts in a heterosexual life partnership establish a
contractual reciprocal duty of support between partners and
the
nature of the relationship merits protection of the law, the court
takes an incremental step towards development of the common
law by
extending the right of support to the surviving partner. (See
Paixao
and Ano. v Road Accident Fund
2012(6) SA 377 (SCA)).
[14]
The statutory requirements for the validity of customary marriages
are firstly that the prospective spouses must be above the
age of
majority and must consent to being married under customary law and
secondly, that the marriage must be negotiated and entered
into or
celebrated in accordance with customary law. (See
Section
3(1) of
Recognition of Customary Marriages Act
120 of 1998
)
[15]
At customary law the broad essentials of customary union or marriage
in South Africa are the participation of the families
or emissaries
of the prospective partners in the lobola negotiations; the consent
of the prospective partners; the payment of lobola
and the handing
over of the bride to the groom. (See in general
Seymour’s
Customary Law in Southern Africa
Fifth Edition- Juta by JC Bekker and
Southon
v Moropane
[2012]
ZAGPJHC 146).
[16]
A promise to put in motion lobola negotiations is a significant
factor pointing towards stability of a committed heterosexual
relationship akin to marriage and entitling plaintiff’s right
of support to legal protection. (See
Mahapeloa
v Road Accident Fund
[2016]
ZAGPJHC 317).
APPLICATION
OF LEGAL POSITION AND FINDINGS
[17]
I am satisfied, from the agreed facts, that the plaintiff and the
deceased lived together as husband and wife and their intention
was
clearly to marry at a future yet to be determined date. Their
position was different from that of the betrothed in that
they lived together and were not just engaged to each other. They
already had a child together with whom they lived raising him
as if
born in wedlock.
[18]
The relationship between plaintiff and the deceased was blessed by
their respective elders who were aware of both their intention
to
marry and plaintiff’s commitment to pay lobola once in a
financial position to do so. The respective families were
fully
aware and part of what was going on between the two of them having
met and agreed on the way forward as in lobola negotiations
when
elders meet to agree on the terms of a customary union between their
children. The deceased had assumed the role of
husband as
against the plaintiff and the father as against the minor child,
contributing towards their maintenance
and joining them at his
aunt’s residence over weekends and holidays. They simply lived
together as a family eating from the
same pot. The fact that the
child carries the deceased’s last name
viz.
Sehloho
is, in my view, indicative of the permanency of the relationship and
so does the fact that the child’s birth certificate
reflects
the deceased as the father and the plaintiff as the mother.
The most plausible inference to draw from the
facts is that the
deceased tacitly undertook to maintain the plaintiff and
the child when he took them to stay with
him at his aunt’s home
and continued to share his monthly allowance with them.
[19]
It was obviously in the interests of the minor child for his parents
to stay together with him in the same household.
In my view
the expectations of the society are that parents of a
minor child would take care of such a child by,
inter
alia,
staying with him in order to give him the necessary family support
and warmth necessary for proper and beneficial development of
a
child. The society would, therefore, never frown upon the
relevant relationship and would, in my judgment, most probably
support and protect the same insofar as it is not a loose,
unstructured and immoral relationship running parallel to accepted
values. The couple lived together with their child as a family unit
and was, most probably, regarded by all and sundry as a married
couple. Theirs was, in my opinion, a
de
facto
customary
marriage with the only hurdle in the formalisation of the
relationship being outstanding lobola agreement inclusive of
payment
of lobola itself. In the circumstances the facts in the instant
matter are such that the legal convictions of society effectively
require the law to protect plaintiff’s right of support.
In my view incremental extension of the relevant remedy to
the
plaintiff
in
casu
is,
thus, warranted.
ORDER
[20]
Defendant shall pay R2 264 329 to the plaintiff in respect
of past and future loss of support.
[21]
Defendant shall, further, pay interest on the above sum at the
prevailing legal rate of interest calculated from 14 days after
date
hereof to date of final payment.
[22]
Defendant shall, furthermore, pay costs of suit inclusive of, but not
limited to, qualifying expenses of all expert witnesses
in respect of
whom expert reports have been delivered.
[23]
Interest on the aforesaid costs of suit at the prevailing legal rate
of interest calculated from the date of taxing master’s
allocatur to date of final payment.
______________
LJ
LEKALE, J
On
behalf of plaintiff:
Adv. AP Berry
Instructed
by:
BL Kretzmann Inc
C/O McIntyre & Van
der Post
Bloemfontein
On
behalf of defendant: Adv.
MF Mopeli
Instructed
by:
Maduba Attorneys
Bloemfontein