About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 142
|
|
Mohohlo v Road Accident Fund (7205/13) [2016] ZAGPPHC 142 (29 January 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number- 7205/13
DATE:
29 JANUARY 2016
In
the matter between:
REBECCA
MOHOHLO
......................................................................................................
PLAINTIFF
And
THE
ROAD ACCIDENT
FUND
.....................................................................................
DEFENDANT
Coram:
HUGHES J
JUDGMENT
HUGHESJ
[1]
On 2 July 2011, Letshufi Otshepeng (the deceased), died as a
result of a motor vehicle collision. The plaintiff, Rebecca Mohohlo
(Rebecca), the maternal aunt of the deceased, has instituted a claim
for loss of support.
[2]
The plaintiff contends that she raised and supported the
deceased until he was self-supporting. When he was self-supporting he
in
turn supported and / or contributed to supporting her financially.
[3]
The parties state that the defendant has conceded negligence
and the only issue to be determined is that of quantum. As regards
quantum only the issue of funeral expenses has been settled.
[4]
The dispute is limited to two Issues, whether the deceased had
the legal duty to support the plaintiff, in a nut shell the
plaintiff’s
locus stand to claim for loss of support from the
defendant, and whether the plaintiff was indigent
[5]
The defendant argued that in terms of section 17(1) of the
Road Accident Fund Act 56 of 1996 ( the Act) the fund was not obliged
to compensate the plaintiff for loss of support as no legal duty
existed between the deceased and the plaintiff support each other
as
he had not been adopted by the plaintiff.
[6]
Section 17 (1) reads as follows :
'The
Fund or sin agent (I) fa) subject to this Act, in the case of a claim
for compensation under this smmoa arising from rhe driving
of a motor
vehicle mhere
r
he identity of
the owner or the driver thereof has been established;
(k)
subject to any reguiatior:
made under section
26
, in the
case of a claim ;m compensation under this section arising from the
driving of'a mater vehicle where the identity ay neidier
the ownm nor
the be obliged to compensate any person (the third party) for any
loss or damage which the third
parly
has suffered as a result of any bodily injury to himself or herself
or the death of or any
bodily
injury to any other person
, caused by or arising from the
driving of a motor vehicle by any person at any place within the
Republic, if the injury or death
is due to the negligence or other
wrongful act of the driver or of the owner of the motor vehicle or of
his or her employee in
the performance of the employee's duties as
employee: Provided that the obligation of the Fund to compensate a
third party for
non-peciiniary loss shall be limited to compensation
for a serious injury as contemplated in subsection
(IA)
and shall be paid by -way of a lump sum. "
[7]
The plaintiff was the only person who testified in this action
and in these circumstances her evidence stands uncontested. However,
at this juncture I would like to reiterate, that which, is now
established law that unchallenged evidence is not automatically
accepted as the truth and does not discharge a litigant’s onus.
See Stiffmen v Kriel 1909 TS at 538 where innes CJ sounds
the
following warning:
"it
dees not follow that because evidence is uncontradicted, that
therefore it is fine ; he story roid by the persons on whom
the onus
rest may be improbable as not to discharge it."
[8]
The plaintiff testified that she was the eldest of her
siblings. She was married and had no children when the deceased was
born.
The mother of the deceased is her younger sister and the father
had disputed paternity of the deceased. The deceased’s
biological
mother was very young when she gave birth to the deceased.
The plaintiff's parents were still alive at time and It was resolved
by the family of the plaintiff that she would take care of the
deceased and rear him as her own The deceased was three months old
when the plaintiff and her Sate husband took charge of the deceased.
[9]
Incidentally the plaintiff also took charge and care of her
brother’s daughter who was born after the deceased. The
plaintiff
testified that both these children were not formally
adopted by her and her late husband.
[10]
Her testimony is that she cared for the deceased as her own as
she had no children. She worked and supported the deceased until he
was self-sufficient. At the time of his death the deceased was
employed at Old Mutual. For the four years that he had been employed
prior to his death he supported the plaintiff. She testified that she
did not have to request assistance from the deceased as he
did so on
his own accord. Her reasoning for him doing so was that the deceased
appreciated that the plaintiff had done him a favour
by raising him.
[11]
In his short lifetime the deceased lived with the plaintiff.
The deceased biological mother obtained a career, got married, had
children and led a separate life with her husband and children. From
the time that the deceased was placed in the plaintiff’s
care
she never took an interest in the deceased till his demise.
[12]
The plaintiff’s evidence is that the deceased called her
‘mamma’ and she considered their relationship to be that
of mother and son and not aunt and nephew. The deceased supported her
by buying clothes, her medication and the necessities in
life. He did
this whist she was employed and when she became unemployed.
[13]
When questioned whv she and her husbsnd hsd not adopted the
children that such thing as adoption.
[14]
it is trite that for the plaintiff to succeed she must
demonstrate that a legal duty tc support existed between her and the
deceased
and that this right was worthy of the law’s
protection. See Amod v Multilateral Motor Vehicle Accident Fund
(Commission for
Gender Equality Intervening
1999 (4) SA 1319
(SCA) at
para [6] tc [81
[15j
in establishing whether a duty to support did in fact exist Detween
tne piaintin and the deceased, Adv. Pienaar, for the plaintiff,
argued that a tacit agreement was created between the plaintiff and
deceased when she undertook to support him and likewise when
was
self-sufficient. That agreement, so the argument goes, confers the
legal duty between the parties.
[16]
On the other hand, Adv. Strydom, for the defendant, argues
that if the plaintiff needed to be maintained this could be claimed
from
other family members. Further, the mother of the deceased is
still alive taking care of her other children from her marriage, she
or any other member of the plaintiff’s family could have
assisted to maintain the plaintiff. He stated that there was also
the
consideration of African customary law that provides that it is not
the plaintiff whom suffers the loss but rather the plaintiff’s
entire family who suffer the loss of support from the deceased. Thus,
the plaintiff has no locus standi to claim for loss of support.
[17]
In
Amod supra
it was stated that it is unclear
what the scope of the plaintiff’s action should entail.
However, the old Roman-Dutch jurist
made it clear that the legal
obligation to support "
extends it to ‘those whom
the deceased was accustomed to aliment ex officio'. ..the action was
competent at the instance of
any dependant within his broad family
whom he in fact supported whether he was obliged to do so or not but
this is unclear.”
At
para
[7]
of
Amod
and
reiterated in
Paixao v Road Accident Fund
2012 (6) SA 377
at
para [15]:
“
[
15] However, as this court observed in Amod. the old authorities
appeared to be anxious tc
recognise
the
existence of a dependants action
for the
‘family’ members of
tne
deceased.—
But
it
cannot be stated conclusively that
they
intended
only relationships
by
blood or
marriage
to
fail within its ambit Arc; giver the
si.i gsneris character of me remedy there seems ic he no proper
reason to restrict it on^y
to family or olccti relaiionships when
sociai changes no longer require this.
[18]
In these circumstances, it is clear that the plaintiff, when
called upon by her family, took charge of the deceased whilst he was
a mere three month old child. She supported him until he was
self-sufficient and when the deceased became self- sufficient he in
turn supported the plaintiff, without even being requested to do so
t
but merely reciprocated the duty. Though there Is no written
agreement between the plaintiff and the deceased in my view, on an
examination of their conduct and the surrounding circumstances, it is
apparent to me that a tacit agreement came to the fore between
the
plaintiff and the deceased.
[19]
The inquiry does not end here though as
u
. the
mere fact that the parties had a binding agreement inter se does not
mean that it was enforceable against third parties such
as the fund.
Put another way the appellants had to establish not only that they
had an enforceable agreement against the deceased
but that the
obligations created by the nature of their relationship were worthy
of the law’s protection.
31
As I have said this must
be determined by reference to the boni mores criterion." See
Paixao v RAF supra at para [23]
[20]
in addressing the aforesaid issue, Adv. Pienaar argued that
the boni mores as well as African custom ought to be considered in
order
to elevate the right arising from the agreement between the
deceased and plaintiff to enjoy the protection of the law. To this
end I was referred to the cases of Metiso v Padongeiukfonds
2001 (3)
SA 1142
(T), Fosi v Road Accident Fund and Another
[2007] ZAWCHC 8
;
2008 (3) SA 560
(C) and JT v Road Accident Fund
2015 (1) SA 609
(GJ). In all these
cases the common law was developed in line with the boni mores at
that time together with the cultural and customary
values.
[21]
In Metiso supra the children were adopted in customary law by
the brother of the father of the children. The mother of the children
had absolutely no contact with them. Even though the mother had not
been notified of the adoption, as is required, Bertelsmann
J held
that it was irrational and against the interest of the children to
let this fact stand in the way of a valid adoption. This
would harm
the interest of the children as it was considered to be contra bonos
mores. The adoption even though not complete was
held to be a binding
offer enforceable on behalf of the children and recognition of the
duty to maintain resonated therefrom. It
was held that this is
reconcilable with the boni mores and even though it is not recognised
by common law, it is a logical extension
thereof.
[22]
Staying on the topic of adoption, in JT v RAF supra this case
involved a legal adoption by the grandparents of their granddaughter.
The father of the child, due to the nature of his work, allowed his
parents to adopt his daughter. The mother of (be child opted
to have
nothing to do with the child shortly after the child was born The
surrounding circumstances were such that even though
the child was
adopied the father still played a role in the life of the child, as
he assisted his parent’s <n supporting
his child. Here the
fund argued that his legal duty to support his daughter ended when
the adoption took place. However, the court
found that even so if one
looks at the surrounding circumstances the duty to support between de
facto family members had to give
expression to the moral views of
society.
[23]
Sutherland J states the following in JT v RAF at para [26]
"it
seems
to
me that
these cases demonstrate
that the
common
law
has
been developed
to
recognise that a duty of support can arise, in a giver, case from the
fact-specific circumstances of a proven relationship from
which it is
shown that a binding duty of support was assumed by one person in
favour of another. Moreover, a culturally imbedded
notion of
'family', constituted as being a network of relationships or
reciprocal nurture and support, informs the common law's
appetite to
embrace, as worthy of protection, the assumption of duties of support
and the reciprocal right to claim support by
persons who are in
relationships akin to that of a family.”
[24]
The court in Fosi v RAF and Another supra, where a claim for
compensation for the loss of support by a child to a parent was
considered,
it was held that the origin of the obligation for a child
to support a parent resided in customary' law A child would lack
Ubuntu
were a child not to support a needy parent. “The duty is
inborn and the African child does not have to be told by anyone to
honour that obligation”.[Extracted from para [16] of Fosi v RAF
]
[25]
In the present case we have the deceased who, on his own
accord, supported the plaintiff, having received such support from
the
plaintiff herself, until he was self sufficient. The
relationship between the deceased and plaintiff was, in my view, a
relationship
of reciprocal nurture and support. This to my mind,
dictates that it is worthy to be protected by our law as this is a
norm both
apparent in African cuiture, practised universally and
accepted by others other than Africans, as wel! as having been
entrenched
as far back as the Roman-Dutch era. See Paixao v RAF.
[26]
In conclusion 1 find that the plaintiff has successfully
demonstrated that the
nature of the
relationship between the parties gave rise to a reciprocal duty of
support, which the law must protect.
[27]
The last issue is that of indigence of the plaintiff. The test
goes back as far as Oosthuizen v Stanley 1938 AD,
where
Tindall JA wrote as follows at 327-8:
"There
is no doubt on the authorities which are quoted in Waterson v
Mayberry,
1934 T.P.D. 210
that the plaintiff had to prove not only
that either Stephanus or Elsie contributed to his support but that
there was a legal duty
to contribute because his circumstances were
such that he needed the contribution. The liability of children to
support their parents,
if these are indigent (inopes), is beyond
question; See Voet, 25.3.8; Van Leeuwen. Censura Forensis, 1.10.4.
the fact that a child
is a minor does not absolve him from his duty,
if he is able to provide or contribute to the required support; See
In re Knoop,
10 SC 198
, Support (alimenta) includes not only food and
clothing in accordance -with the quality and condition of the persons
to be supported,
but also lodging and care in sickness: See Voet
25.3.4; Van Leeuwen, Censura Forensis, 1.10,5; Brunnemann, in A
Codicern 5,25,
Whether a parent is in such a state of comparative
indigency or destitution that a Court of law can compel a child to
supplement
the parent's income is a question of fact depending on the
circumstances of each case, i find, in an old Scottish case quoted by
Fraser Parent and Child, 3
rd
ed P.137 and in Green's
Encyclopaedia of Scots Law, vol. 1 p.300. that a widow having an
annual income of £60 was held to
be not entitled to claim
additional aliment from a son who had an income of £1 500 a
year. No doubt the higher value of money
80 years ago was an
important factor in the failure of the parents claim in that case.
However, though each case must depend on
its own peculiar
circumstances, that decision supports the view, I think, that the
parent must show that, considering his or her
station in life, he or
she is in want of what should, considering his or her station in
life, be regarded as coming under the head
of necessities.”
[281
On the evidence of the plaintiff, she supported herself, the deceased
and her daughter (the niece) working as a domestic until
2004. Due to
ill health she resigned and was receiving a disability grant. This
was stopped as she was due to receive a state pension
grant. To
supplement her grant from time to time she makes vetkoeks and her
daughter goes out to sei! these, i his is nor a permanent
situation
but rather dependant of customers. She aiso offers her services as a
babysitting to supplement her income as weii. Just
of interest her
daughter has two young children and is not employed.
[29]
She testified that in 2007 she was 57years of age when the
deceased started working. He provided her with R1 200.00 per month
which
she used to buy groceries and pay for her medication. These are
the necessities that she states she utilised the money for which
was
given to her by the deceased,
[30]
Adv. Pienaar argued that even though the plaintiff was trying
to generate an income this was not consistent and she was struggling
to survive. She stated that during the periods when her health
deteriorated and she was hospitalised no income was forth coming.
It
was correctly argued by Adv. Pienaar that the question of whether the
plaintiff was indigent or not was a question of facts
depending on
the circumstances of each case.
[31]
In summing up the norm, this is whether the plaintiff is able
to show that she was dependant on the deceased’s contributions
for the necessities in life. What constitutes these necessities will
depend on the plaintiff’s station in life. See Jacobs
v Road
Accident Fund
2010 (3) SA 263
(SE) at para [20].
[32]
From my examination of the plaintiff’s evidence it is
telling that the contribution made to the plaintiff by the deceased
assisted her to afford the necessary things in life and not the
luxuries. Without this contribution the plaintiff states that she
is
experiencing hardship in making ends meet in attaining these
necessities.
[33]
My view is that it is correct that she is not just sitting on
her hands and depending on the state grant system, she is actually
attempting whatever possible to bridge the gap to attain what she had
whilst the deceased was still alive and supporting her. In
addition,
she suffers from ill health and is not able to do the things she
could have done to assist herself in attaining these
necessities. The
fact, that the daughter can assist in supporting the plaintiff does
not detract from the fact that the deceased
did support her and she
is legally entitled to claim for the loss of this support. See Khan v
Padayachy
1971 (3) SA 877
(W): Jacobs v RAF supra
[34]
I
am satisfied that the plaintiff has demonstrated that what
little income she is able to scrap together is not sufficient and
adequate
to help her attain the necessities in life since the death
of the deceased. In my view, as the deceased had assumed the
obligation
to voluntarily support the plaintiff, it would be
invidious' and contra bonos mores of me to rule that there was no
duty on the
deceased to support her
[35]
Consequently the following order is made:
[35.1]
The defendant, the Road Accident Fund, is liable to compensate
the plaintiff,
Rebecca
Mohohlo, the amount of damages the plaintiff is able to prove.
[35.2]
The defendant is ordered to pay the plaintiff's costs of this
action W. Hughes
Judge
of the High Court
Matter
heard on 03 September 2015
Judgment
reserved on 03 September 2015
Attorneys
for the Plaintiff Spruyt Incorporated
Attorneys
for the Defendant Fouriefisher Inc.