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[2016] ZAGPPHC 124
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Zaayman v Road Accident Fund (55880/2011) [2016] ZAGPPHC 124 (23 March 2016)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG DIVISION, PRETORIA
)
CASE NO: 55880/2011
DATE: 23/3/2016
Not reportable
Not of interest to other judges
Revised
IN THE MATTER BETWEEN
NOELINE CHRISTINA
ZAAYMAN PLAINTIFF
AND
THE ROAD ACCIDENT
FUND DEFENDANT
JUDGMENT
MSIMEKI, J
[1] Plaintiff instituted an action against defendant for damages that
she suffered after her husband ("the deceased")
died on 7
May 2009 as a direct result of the injuries that he sustained in an
accident which involved two motor vehicles.
Deceased was a
passenger in the motor vehicle bearing registration number DDS […]
("the Toyota") which, at
the time, was driven by
T J Bieldt. The insured driver, E M Mlombo,
at the time, drove a motor vehicle
bearing registration number
DHW […] ("the truck"). The deceased died
at the scene of the accident.
[2] On 24 March 2014, the issue of liability was resolved on the
basis of 100% in favour of plaintiff. In other words the
accident was caused solely by the negligence of the insured driver.
[3] This is a claim for loss of support. Adv Geach SC and
Adv L J Visser (Mr Visser") represented
plaintiff while Adv M Olivier ("Ms Olivier")
represented defendant when the matter was argued.
[4] The following facts are common cause:
1. deceased and plaintiff were husband and wife;
2. deceased had a duty to support and maintain plaintiff;
3. deceased died as a direct result of the accident which occurred on
7 May 2009;
4. plaintiff, as a result of deceased's death, suffered damages which
the court has to determine;
5. deceased supported plaintiff;
6. deceased's income, during his lifetime, consisted of:
6.1 income from his job;
6.2 income from his pension;
6.3 income from policies.
[5] The issue to be determined is whether money derived from pension
and policies should be regarded as part of deceased's income.
Ms Olivier's view is that pension money and money from policies
should not be regarded as part of the income. Adv Geach
SC
and Mr Visser, on the contrary, regard pension money and money
derived from policies as part of deceased's income when
loss of
support is computed.
[6] Noeline Christina Zaayman (plaintiff) and Charl Gerhardus du
Plessis testified in support of plaintiff's case. Defendant
called no witnesses. Plaintiff and defendant's cases were then
closed.
[7] Plaintiff's case is briefly that she was married to deceased who
died on 7 May 2009. She told the court that deceased's
income while he lived consisted of money from his job, policies and
pension. Plaintiff and deceased worked for the Department
of
Correctional Services. Deceased started in approximately 1970
while she started in 1973. Deceased, by reason of
his
employment, was a member of the Government Employees Pension Fund
("GEPF"). As a retired government employee,
deceased
received pension in the sum of R8 594,00 per month. He
also received R6 000,00 per month which was meant
to supplement
his pension from employment. She told the court that deceased
was working for Sterling Construction at the
time of his death.
Plaintiff testified that she received a lump sum only and not pension
from the GEPF when she retired in
1985. Plaintiff, after the
death of deceased, received 50% of his pension. She confirmed
that deceased supported her
from his pension, policies and salary.
Deceased had policies with Sanlam.
[8] When cross-examined, plaintiff testified and confirmed her
evidence in chief. She conceded that she earned more than
deceased. She explained that some salary slips did not
correctly reflect her salary as they included her bonus and payment
relating to her overtime that she worked. She further conceded
that she was earning more than deceased at the time of his
death.
Deceased, according to her, would have worked until he reached age
65. She was to retire at age 65 but this,
because of
circumstances, did not eventuate. She was not given a lump sum
when deceased died. Plaintiff became the
beneficiary under the
policies after deceased's death.
[9] The expertise of Charl G du Plessis was never placed in dispute.
He is a fellow of the Institute of Actuaries and a fellow
of the
Actuarial Society of South Africa. He is a qualified actuary.
He is part of Munro Forensic Actuaries.
Their report sets out
succinctly how the amount, which Adv Geach SC submitted was fair
and reasonable and needed to be regarded
as a reasonable claim which
plaintiff is entitled to, which she lost in respect of support upon
the death of deceased was computed.
[10] The witness was provided with deceased's earnings, plaintiff's
earnings, life assurance and annuities and accelerated benefits.
A contingency of 5% was applied on past and future losses.
[11] Plaintiff's past loss was calculated as follows:
PAST LOSS (N C Zaayman)
R237 300,00
less 5% contingency
R225 435,00
FUTURE LOSS
R391 100,00
less 5% contingency
R371 545,00
Total loss
R596 980,00
less accelerated benefits
R 58 359,00
R538 621,00
TOTAL LOSS OF SUPPORT
R538 621,00
[12] Adv Geach SC submitted that defendant had its own actuary but
decided not to call her. One can only assume that the
actuary
was in no way going to assist defendant.
[13] Going back to the issue to be determined, it will be remembered
that it is Ms Olivier's view that pension money and money
derived from policies should be deducted when an amount in respect of
loss of support is computed. Adv Geach SC, on the other
hand,
holds a contrary view.
[14] In support of the position that Ms Olivier took, reference was
made to the following cases:
1.
Santam Versekeringsmaatskappy Bpk v Byleveldt
1973 2 SA 146
(A).
This case, in my view, does not assist defendant. The court in
that case held that an injured driver was entitled to money
paid to
him on compassionate grounds at the time when he could do nothing.
The injured driver was found to be entitled to
include such amount.
2.
Dippenaar v Shield Insurance Co Ltd
1979 2 SA 904
(A)
915A D.
What is said at 915A-D, in my view, does not assist defendant either.
3.
Du Toit v General Accident Insurance Co of South Africa Ltd
1988 3 SA 75
(D&CLD) at 82C-J. There the court found that –
"The provisions of Act 9 of 1969 are applicable to this matter
and therefore the pension payable to plaintiff is not to be
taken
into account in the computation of her damages."
This, again, does not assist defendant.
4.
Commissioner for Inland Revenue v Nolan's Estate
1962 1 SA
785
(A).
This case dealt with annuity payable to an employee on retirement for
sixty months and what was to happen if death occurred prior
to such
payments being made balance to wife married in community of
property. This case, obviously, has nothing to do with
the
present case.
THE LAW
[15] The resolution of the issue lies in what the law says.
First I shall have regard to what the statute provides and second
I
shall refer to case law.
[16] The
Assessment of Damages Act 9 of 1969
is key in the resolution
of the issue. The aim of the Act is "to amend the law
relating to the assessment of damages
for loss of support as a result
of a person's death". The Act, in section 1(1), provides
as follows:
"(1) When in any action, the cause of which arose after the
commencement of this Act, damages are assessed for loss of support
as
a result of a person's death, no insurance money, pension or benefit
which has been or will or may be paid as a result of the
death, shall
be taken into account."
[17] Section 1(2) defines "benefit", "insurance money"
and "pension" as follows:
"(2) For the purposes of subsection (1) –
'benefit' means any payment by a friendly society or trade union for
the relief or maintenance of a member's dependants;
'insurance money' includes a refund of premiums and any payment of
interest on such premiums;
'pension' includes a refund of contributions and any payment of
interest on such contributions, and also any payment of a gratuity
or
other lump sum by a pension or provident fund or by an employer in
respect of a person's employment."
[18] Lewis AJA in
Lambrakis v Santam Ltd
2002 3 SA 710
at 715B
said:
"It is to be noted that in terms of
s 1(1)
of the
Assessment of
Damages Act 9 of 1969
, insurance money (which includes a refund of
premiums and payment of interest on premiums) and pensions do not
fall to be deducted."
(See also
Erasmus Ferreira and Ackermann and Others v Francis
2010 2 SA 228
(SCA) at [19] and
Du Toit v General Accident
Insurance Co of South Africa Ltd
1988 3 SA 75
(D&CLD).
THE MEASURE OF DAMAGES
[19] "The measure of damages for loss of support is usually the
difference between the position of the dependant as a result
of the
loss of support and the position he or she could reasonably have
expected to be in had the deceased not died."
(See
Lambrakis v Santam Ltd (supra)
paragraph [12] at 714;
Road Accident Fund v Monani and Another
2009 4 SA 327
(SCA);
Legal Insurance Company Ltd v Botes
1963 1 SA 608
(A) at 614E;
Wigham v British Traders Insurance Company Ltd
1963 3 SA 151
(W) at 154;
Nochomowitz v Santam Insurance Co Ltd
1972 1 SA
718
(T) at 725 and
Hulley v Cox
1923 AD 234
at 243-244.)
[20] The position regarding the issue to be determined is by now
clear. Ms Olivier's submission cannot be correct.
Section 1(1)
of the
Assessment of Damages Act 9 of 1969
as well as
the case law have clearly demonstrated that Adv Geach's
submission on the subject has strong foundation and merit.
[21] The damages suffered by plaintiff remain to be determined and
computed. As alluded to above, defendant had an actuary
but
decided against using her. As I also have shown this can only
lead to an inference, namely that that actuary could not
advance
their case.
[22] Adv Geach SC submitted, and correctly in my view, that the
actuarial report of Munro Forensic Actuaries marked exhibit "D2"
is noteworthy. This is the only report before me. The
report therefore is uncontroverted.
[23] Plaintiff, in her personal capacity, prayed for the following
relief against the defendant:
"1. Payment of the amount of R788 088,00, alternatively
payment of such amount of damage (
sic
) as the honourable court
on the evidence to be presented to it holds the plaintiff suffers;
2. Interest on the judgment amount in terms of prayer 1 above at the
rate of 15.5% per annum
a tempore morae
;
3. Costs of the suit;
4. Further and/or alternative relief."
[24] Adv Geach SC provided the court with a draft order which,
according to him, properly reflects a fair and proper quantification
of plaintiff's loss of support. Ms Olivier, on the other
hand, holds the view that awarding the damages as presently
formulated would have the effect of placing plaintiff in a better
position which would amount to unfair advantage. Plaintiff,
according to her, has to prove actual loss. This submission is
not supported by the
Assessment of Damages Act 9 of 1969
as well as
the case law.
[25] Having regard to the fact that plaintiff had prayed for payment
of R788 088,00 which, according to her, represents her
loss of
support and the fact that Munro Forensic Actuaries have made their
calculations based on the deceased's income, the amount
of
R538 621,00, which represents plaintiff's loss of support, in my
view, is indeed proper, fair and reasonable in the circumstances
of
plaintiff's case. The contingencies of 5% in respect of past
loss of support and 5% in respect of future loss of support
are, in
my view, very reasonable.
[26] I have been provided with a draft order by counsel for the
plaintiff, Adv Geach SC. I have perused the
draft order as amended and am in agreement therewith. I have
merely inserted the amount of R538 621,00.
[27] In the result the following order is made:
1. The draft order as amended marked "X", signed and dated,
is made an order of the court.
M W MSIMEKI
JUDGE OF THE GAUTENG DIVISION, PRETORIA
HEARD ON: 12 NOVEMBER 2015
FOR THE PLAINTIFF: ADV GEACH SC AND ADV L J VISSER
INSTRUCTED BY: PHILIP MEYER ATTORNEYS
FOR THE DEFENDANT: ADV M OLIVIER
INSTRUCTED BY: MOTHLE JOOMA SABDIA INCORPORATED