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2016
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[2016] ZAFSHC 192
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Mokoena v Road Accident Fund (317/2013) [2016] ZAFSHC 192 (10 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges:NO
Circulate
to Magistrates:NO
Case
number: 317/2013
In
the matter between:
SETELI
ANNA
MOKOENA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
BY:
MATHEBULA, AJ
HEARD
ON:
21 SEPTEMBER 2016
DELIVERED
ON:
10 NOVEMBER 2016
[1]
The plaintiff instituted an action against the defendant for loss of
support for herself and her two minor daughters.
The merits
were settled and an order to that effect was made by Lekale J on the
29 July 2014. The only outstanding issue
before me is the
determination of the quantum.
[2]
At the outset of the trial the parties agreed to the correctness of
the Acturial Report compiled by an actuary namely Alex Munro.
The report was handed in and marked Exhibit “A”.
[3]
Two witnesses were called to testify for the plaintiff. The
plaintiff testified that her deceased husband was a tuck-shop
owner
who conducted it from rented premises based at Mashaeng,
Fouriesburg. She was also assisting him in selling cigarettes,
hair products, airtime vouchers etc. The stock was sourced
primarily from Ficksburg, Bethlehem and Qwa-Qwa. She was
the
author of the document detailing their daily takings. Although
this document was properly kept on that aspect, it did
not reflect
the nett income of the business.
[4]
Allan Soley took the stand and testified that he is a qualified and
practicing Chartered Accountant for approximately 50 years.
His
clients consists mainly of small business owners. He compiled
the income and expenditure statement handed in and accepted
per
agreement between the parties. This was marked exhibit “B”.
According to him the average income of the deceased
was approximately
R16 000,00 per month. It is from these figures that
Exhibit “A” was compiled by the Actuary.
[5]
It was submitted on behalf of the plaintiff that the loss of support
be calculated until the age of 21 for the minor children.
Further that the costs be awarded for two days that the matter has
been set down.
[6]
The defendant through Miss Oliver agreed with the plaintiff on the
issue of calculating the loss of support until age 21 for
the minor
children. As far as costs were concerned, it was her submission
that I exercise my discretion on the matter.
[7]
It is not in dispute that the deceased owed a duty of support to the
plaintiff and had two minor daughters. It is a trite
principle
of law the plaintiff will be entitled to damages in so far as has
been actual paternally loss as a result of the wrongdoing
of the
insured driver. See
Evens
v Shield Insurance Company Ltd
1980 (2) SA 814
(A) at 838. It is an undisputed fact that the
deceased was gainfully employed during his lifetime. He had an
identifiable
earning capacity. It is trite law that when an
expert is called in a matter he does so to be of assistance to the
court.
[8]
In order to measure such damages for loss of support one must take
into account the difference between the current position
of the
plaintiff and the position that could have existed had the deceased
not died in coming to the correct award. In coming
to the
correct award I must execise my discretion judicially and in the
interest of justice. In this matter the report that
has been
compiled by the Actuary accepted as exhibit “A” was
uncontested. As a result of the report both parties
accepted
that the calculations in that report are correct and that the
difference will only be as to whether I accept that the
deceased had
all the duty of support to the minor children up to the ages of 18 or
21. It is not uncommon in these current
days that the parents
will owe a duty of support to their children beyond the age of
majority which is 18 years. Taking into
consideration that at
18 years a child will in all probability completing Grade 12.
Given the availability of education opportunities
such a child will
proceed to a will undertake post matric qualification studies.
This will require another three years of
learning and dependency on
the parent to support such a child until completion of studies. In
this regard, I am therefore persuaded
that calculating the loss of
support until age 21 will be appropriate in the circumstances.
[9]
I am of the view that the costs shall follow the result as per the
general rule governing the question of costs. Further,
that
this matter was set down to commence on the 20
th
September but could not because of
inter
alia
the negotiations as well as the lack of instructions on the part of
the defendant to the legal representatives. In that regard,
the
defendant should pay costs for both the
20
th
and
21
st
of September 2016.
[10]
In the result, I make the following order:
1.
The
defendant must pay the plaintiff the sum of R2 052 700,00;
2.
Interest
at the rate of 10,50% a
temporae
morae
in the event the amount of R2 052 700,00 is not paid within
14 days from the date of this judgment;
3.
The
defendant shall pay the plaintiff taxed or agreed costs for the 20
th
and 21
st
September 2016 which costs will include costs for preparation,
qualifying fees and attendance of the following expert witnesses
namely: Alex Munro and Allan Soley.
___________________
M. A. MATHABULA, AJ
On
behalf of the plaintiff: Adv. J Zietsman
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the defendant: Adv. I Olivier
Instructed
by:
Maduba
Attorneys
BLOEMFONTEIN
/eb