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[2016] ZAFSHC 181
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K v Road Accident Fund (3996/2013) [2016] ZAFSHC 181 (27 October 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3996/2013
In
the matter between:
D.
M. K.
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
HEARD
ON:
11 OCTOBER
2016
JUDGMENT
BY:
GELA, AJ
DELIVERED
ON:
27 OCTOBER 2016
[1]
This is an action in which the plaintiff, D. M. K. sues the
defendant, the Road Accident Fund under
section 17(1)
of the
Road
Accident Fund Act 56 of 1996
, for loss of maintenance and support
arising from the death of M. D. S. in a motor vehicle accident on the
29
th
November 2009. The victim was a pedestrian in Khumalo Street,
Parys, in the Free State Province when he was hit by a vehicle
driven
by L.B Motha (the insured driver) with registration number [D...].
At the time of the accident the victim had been
living with the
plaintiff and their two minor children and was supporting them
financially.
[2]
It is important to give an account of the background facts of this
matter, most of which are common cause. The victim
and the
plaintiff met in 1995, while they were still primary school
learners. They fell in love and when the plaintiff was
a
teenager aged 17 years old and in secondary school, the victim
deflowered her. Consequently, the couple’s first child,
M. C.
K. was born on the [....] 2001. At the time the child was born
the victim was gainfully employed and was also involved
in the
upbringing of the child.
[3]
In 2005 they started living together as husband and wife and the
couple’s second child, R. A. K. was born on the [...]
2006.
After the birth of their second child, the parties agreed that the
plaintiff should stop doing part-time jobs and take
care of the baby,
while the victim was hustling to support them, (plaintiff and the 2
children). Between June and July 2008
there were lobola
negotiations between the two families and a sum of R10 000-00
(then thousand) was agreed upon as lobola
for the plaintiff.
They continued staying together as husband and wife even after the
lobola negotiations were concluded.
Their relationship was with
the blessings of both families. At the time of his death the
victim was still raising the lobola
agreed upon during the
negotiations between the two families. No handing over of the
bride and traditional ceremony was as
yet performed and no part
payment of lobola was done.
[4]
The victim was on 29 November 2009 around 08H10 a pedestrian in
Khumalo Street, Parys, Free State Province when he was hit by
a motor
vehicle with registration number [D...]. The said vehicle was
driven by LB Motha, the insured driver. The victim
died
immediately as a result of the injuries sustained.
[5]
The essential facts pertaining to the nature of the relationship
between the plaintiff and the deceased are not in dispute.
They
emerge from the testimony adduced by three witnesses who testified on
behalf of the plaintiff, Ms D. S. herself, P. S. M.,
(deceased’s
brother in-law) and N. K. (the plaintiff’s brother). The
Road Accident Fund (defendant) adduced no
rebuttal evidence.
The defendant’s cross examination of the three witnesses was
aimed at impugning the plaintiff’s
assertion that she entered
into a customary marriage with the deceased.
[6]
When the matter served before this court, the defendant had conceded
the merits and had accepted full liability for the plaintiff’s
proven damages, but of course, depending on the finding of this
court. In addition, the parties also confirmed that the
calculation of the quantum was not in dispute.
[7]
The defendant having agreed that the victim at the time of his death
owed a legal duty of support to the couple’s two
minor
children, the issue to be determined is whether or not the deceased,
owed the plaintiff such duty of support at the time
of his death on
29 November 2009. Put differently, was the plaintiff legally
married to the deceased, alternatively, does
the legal principle
founded in
Paixäo
and Another v Road Accident Fund
2012 (6) SA 377
(SCA) find application in this matter?
[8]
The defendant has contended that the evidence adduced did not support
any conclusion of a customary marriage in that lobola
was not yet
paid and there were no ceremonies held for the handing over of the
plaintiff to her husband’s family. See
Lawsa, Volume 32:
Indigenous Law, Para 95 where the essential requirements for a
legally binding customary marriage are listed.
The defendant
submitted that the deceased and the plaintiff were desiring to be
married but due to financial constraints the deceased
did not pay
lobola and the marriage ceremony was not concluded. Nothing
significant was submitted by the defendant pertaining
to the
alternative claim of the plaintiff, based on the question whether the
deceased owed the plaintiff a duty of support at the
time of his
death, which called for the court to decide whether the principle in
Paixäo
and Another v Road Accident Fund
(
supra
),
which extended the dependant’s action to permanent heterosexual
relationships applied.
[9]
The Paixäo principle also found application in the case of
Engela
v Road Accident Fund
2016 (1) SA 214
(GJ), where the plaintiff sued the defendant for loss
of support sustained by her two sons, T and O, as a result of the
death of
her deceased ex-husband, in a motor vehicle collision.
T was the illegitimate son of the plaintiff and brought into the
marriage
with the deceased. Subsequent to their divorce and a
brief separation, the plaintiff and deceased reconciled, and
commenced
living together again as family of four. There
existed no express agreement between the deceased and the plaintiff
that the
deceased would support T. At para [12] the court held
that, underlying the agreements in both cases (i.e. Paixäo and
Engela (
supra
)
is a mutual commitment of the parties to live together as a family.
It is irrelevant whether the one agreement is gorvened
by a marriage
certificate while the other is not. It was held, further, that
the duty of support would not only arise in
circumstances where the
deceased had during his lifetime expressly undertaken to support an
illegitimate child beyond the dissolution
of a marriage but also when
he had tacitly undertaken to do so. The court found that there
existed, on a balance of probabilities,
a tacit agreement that the
deceased would support T as his own child, and that accordingly the
deceased owed T a legal duty of
support at the time of his death.
[10]
The development of the common law to extend to dependant’s
action to cover permanent heterosexual relationships was found
to be
applicable to the Engela case (
supra
).
[11]
I revert to the circumstances of this case. The facts show that
the plaintiff and the victim were in a love relationship
since their
school days. The plaintiff became pregnant with their first
child while she was still attending school.
From then the
deceased accepted the duty to support the child. In 2005 they
moved in together. They were combining
their earnings until the
victim promised the plaintiff that he would support her and the
children. The plaintiff stopped
working, stayed at home for the
sake of the victim’s children and looked after the children for
the victims benefit.
The length of the relationship, the
blessing of such relationship by families on both sides, the victim’s
conduct and the
plaintiff’s conduct demonstrated that there
existed a mutual commitment to permanently live together as husband
and wife
in order to raise a family, Paixao,
supra
and Engela,
supra
.
All these were material considerations. They substantially
compel the conclusion that the victim was under a legal
duty to
support the plaintiff notwithstanding the apparent lack of recognised
requisites of a customary marriage.
[12]
Crucially, they had already undertaken duties of support and agreed
to formalise their relationship through marriage.
The deceased
in this case undertook a duty to maintain and support the plaintiff
and the children. I have found that the
plaintiff tacitly
established the existence of legally enforceable duty of support and
I can see no reason in principle or policy
not to extend the
protection of the common law to the plaintiff.
[13]
In my view, the facts presented warrant a conclusion that there
existed a tacit agreement that the victim would support the
plaintiff. Accordingly, the plaintiff has, on a balance of
probabilities established that the deceased owed her (plaintiff)
a
legal duty of support as at the date of his death. The
development of the common law to extend the dependant’s action
to cover permanent heterosexual relationships is therefore applicable
to this case.
[14]
In the circumstances, I am of the view that the victim owed a legal
duty of support to the plaintiff. Accordingly, I
would
determine the issue in favour of the plaintiff.
[15]
The following order is made:
15.1
The defendant is ordered to pay to the plaintiff in her personal
capacity, compensation in an amount of R365,
201.00.
15.2
The defendant is also ordered to pay interest on the aforesaid
capital amount at the rate of 9% per annum
from the 15
th
day of this order.
15.3
The defendant is further directed to pay the costs of the action
which shall include the costs relative to
the preparation of the
court file as well as the actuary’s fees.
___________
N.
GELA, AJ
On
behalf of the plaintiff:
Adv. PJJ Zietsman
Instructed
by:
Honey Attorneys
Northridge
Mall
Bloemfontein
On
behalf of the defendant:
Adv. CJ Hendricks
Instructed
by:
Maduba Attorneys
77
Kellner Street
Westdene
Bloemfontein
/PK