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 202
|
|
Van der Merwe obo Brandt and Others v Road Accident Fund (2522/2014) [2016] ZAGPPHC 202 (12 April 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
THE JUDICIARY
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION:
PRETORIA
12/4/2016
CASE NO: 2522/2014
Not reportable
Not of interest to other
judges
Revised
In the matter between:
J W VAN DER MERWE OBO
H
BRANDT, PLAINTIFF
P J JOUBERT & S
JOUBERT
And
ROAD ACCIDENT
FUND DEFENDANT
JUDGMENT
MSIBI AJ
[1] The plaintiff in this
matter instituted an action against the Road Accident Fund in terms
of section 17 (1) of Act 56 of 1996
for loss of maintenance and
support, arising from the death of Mr Henrich Brandt, who died in a
motorcycle accident on 26 July
2012.
1.2. Plaintiff and the
deceased moved in together on January 2010.
1.3. Plaintiff was still
in a process of divorcing her first husband, which was finalized on
2011.
1.4. Plaintiff had 2
children namely, P. J. Joubert and S. Joubert from her previous
marriage. The children were living with their
maternal grandmother
since 2008.
1.5. Plaintiff was
pregnant with the deceased's child at the time of the collision. She
gave birth to his son almost a month thereafter
on 26 July 2012.
1.6. Plaintiff is
claiming damages for herself and her 3 children.
1.7. Defendant admits
liability for the loss of maintenance and support of H. B. the
deceased's only child.
The Facts
[2] The material evidence
was given by the plaintiff.
[3] She was married, to
the father of her first 2 children. She obtained a divorce order
against him on 2011, including a settlement
order that he maintains
his children at R500 per month in respect of each child. Plaintiff
abandoned the right to enforce the order.
During this period,
plaintiff was working as a Branch Manager for Le Morgan earning a
monthly commission of about R30 000 to R40
000.
[4] The plaintiff's first
2 children were staying with their maternal grandparents since 2008,
due to the fact that she worked long
hours and was not in the
position to properly care for them on a daily basis. The children
visited her every second weekend and
on school holidays. The
arrangements continued even after deceased moved in with her.
[5] The deceased
voluntarily contributed towards the maintenance of the children. This
was initially against the wishes of the plaintiff.
She carried the
general responsibility that came with raising up her children.
Deceased contributed R1000 to R2000 per month depending
on the
specific needs of the children.
[6] The 2 had planned to
marry after she had given birth to their child. They had moved to a
bigger house and had planned to bring
the other 2 children to live
with them in Rustenburg in 2013.
[7] Deceased was working
as a Store Manager earning about R9 000 per month. In preparation for
the birth of her child and because
of the long working hours at Le
Morgan, Plaintiff resigned from her job to look for a "9 to 5"
job after the birth of
the child. It is during this period that
deceased lost his life in the collision.
[8] After the death of
the deceased she went to stay with her parents. Plaintiff is working
again employed by J&D Group Rustenburg,
earning an average salary
of R10 000 per month.
[9] During cross
examination by Counsel for defendant she conceded that she earned
substantially higher than the deceased while
she was living with him.
They however contributed equally to their joint expenditures.
[10] The issues that I
was called upon to adjudicate upon were the following.
(1) Out of the 3 parties,
(namely plaintiff and her 2 children) who is entitled to compensation
for loss of support.
(2) Deceased's future
career potential
(3) Plaintiff's income
before and after the death of the deceased.
[11] Plaintiff lodged a
claim against respondent for loss of support by reason of the fact
that deceased had voluntarily assumed
a duty to support her and her 2
children from her previous marriage.
[12] Although the natural
father of the plaintiff's 2 children was still alive and had a duty
to maintain his own children. Plaintiff
mentions that she is not
intending to pursue maintenance from him for the following reasons.
(i) She did not know his
whereabouts.
(ii) Attempts to trace
him will not yield any results, since he failed to pay R500 as
ordered by court.
(iii) Bringing him close
to the children would upset the children, since he did not prove to
be a responsible parent.
(iv) The deceased on the
other hand voluntarily contributed to the welfare of the children.
Although she earned a higher income
than the deceased, they combined
their joint income towards their household expenditures.
[13] She conceded that
she paid their monthly rentals while he bought groceries, paid for
water and electricity. He could still
afford to send money to
plaintiff's 2 children. Counsel for the defendant put it to the
plaintiff that it was impossible that deceased
who earned about R9000
at that time would contribute more than her, bearing in mind that she
had an average income of more than
R20 000. On this fact Counsel
further submitted that plaintiff was in actual fact sending her own
money to her parents, for the
children in the name of the deceased.
[14] Plaintiffs 3rd child
H. B., was born on [...] 2012 almost a month after his father's
death.
[15] Counsel for the
plaintiff submits that deceased would have taken care and supported
plaintiff and all her 3 children; while
living with them in the same
house as planned. Had it not being for the accident, plaintiff would
have lived her dream.
[16] It is on this
background that Counsel submits that deceased had established a duty
of support in respect of the plaintiff and
the 3 children.
[17] The Road Accident
Fund is now; under the same duty of support towards plaintiff and her
3 children.
[18] In determining the
nature and extent of financial support that is due to the plaintiff
and the 3 children; the following reports
were submitted.
(1) Medico-Legal report
by the Industrial Psychologist, Elzette Keenan.
(2) Actuarial Report by
the Consulting Actuary- George Swhalts.
The following aspect of
the Medico-Legal report were brought to the fore by Counsel for
defendant during cross examination and also
conceded to by the
plaintiff.
(1) That it was incorrect
that the Industrial Psychologist had a personal meeting with the
plaintiff, but a telephonic conversation.
(2) That it was incorrect
that deceased paid their monthly rental as indicated in the report.
This was plaintiff's responsibility.
(3) That it was incorrect
that plaintiff and the deceased had been living together for 3 years
at the time of his death as indicated
on the report. Plaintiff
conceded that the actual period was 2 1/2
years which was
rounded off to 3 years.
(4) That it was incorrect
that the 2 children had permanently moved in to live with them 2 days
before the accident. The true position
was that they had visited them
2 days before the accident.
[19] On these facts the
court is required to resolve the following:
(1) Is the defendant
legally liable to compensate the plaintiff and her first 2 children,
for loss of support from the deceased?
(2) Is the plaintiff and
her 3 children entitled to judgment on the sum of R2 917 367 as
claimed from the defendant?
[20] In terms of
section
17
of the
Road Accident Fund Act 56 of 1996
, the defendant or an
agent; subject to the provisions of the Act; is obliged to compensate
any person for any loss or damage which
that person has suffered
arising out of the death of any person caused by a motor vehicle if
that death is due to the negligence
of a driver or owner of a motor
vehicle. Section 19 (a) of the Act exempts the defendant from
liability for loss or damage for
which neither the driver nor the
owner of the motor vehicle caused the deceased's death would have
been liable at common law.
[21] In
SANTAM BPK VS
HENERY 1999
(3)
SA page 421 (SCA) para 425H-426A Nienhaber J A
in his judgment held as follows.
"(a) the claim for loss
of support resulting from the unlawful killing of the deceased must
establish that the deceased had
a
duty to support the
defendants
(b)
It had to be
a
legally enforceable duty
(c)
The right of
dependents to such support must be worthy of protection by law.
(d)
The preceeding
elements had to be determined by the criterion of bani mores."
The Duty to Support
[22] The duty to support
as laid down in SANTAM BPK case is a common thread that runs
throughout case law which assist the courts
in establishing
liability.
Counsel for plaintiff in
the matter before me referred me to the case in
MARIA ANGELINA
PAIXAO AND ANOTHER VS ROAD ACCIDENT FUND (64012011) [2012] ZA SCZ at
p 130
stating that the facts of the case are similar to the
matter before me, in that the parties were not married, but were
staying together
with plaintiff's 2 children for several years.
During their partnership the deceased assumed responsibility to
maintain the plaintiff
and her children. He died before they could
get married. The Court of Appeal found in favour of the plaintiff;
since deceased had
established a legally enforceable duty to support
the parties.
[23] At page 6 paragraph
(12) of the Paixao case Cachalia J A held as follows:
"A
claim for maintenance and loss of support suffered as
a
result
of
a
bread winner's death is recognized in common law as
a
dependent's action". The
object of the remedy is to
place the dependents of the deceased in the same position as regards
maintenance, as they would have
been had the deceased not been
killed. The remedy has been described as "ano ma lous",
perculias and sui jeneris, because
the defendant derives her right
not through the deceased or his estate but from the fact that she has
suffered loss by the death
of the deceased for which defendant is
liable. However, only a
dependent to whom the deceased whilst
alive owed
a
legally enforceable duty
to maintain and
support may sue in such an action. Put differently the defendant must
have
a
right which is worthy of the law's protection, to claim
such support."
[24] In
Rita Sibanda v
The Road Accident Fund [9098/2007] 2AGPHC
53 the facts are
strikingly similar to the case before me. In the Sibanda case
plaintiff had been living with the deceased at the
time of the
collision. She was also pregnant, expecting the deceased's child, at
the time of the collision. She submitted that
they had planned to
marry the following year. In this case the Road Accident Fund did not
dispute its liability to compensate plaintiff
in respect of the
child. It was submitted on behalf of the plaintiff in this matter
that, the couple would have married in 2004
had the accident not
occurred. The court held that although plaintiff could prove on a
balance of probabilities that deceased would
have married her, had he
not been killed in the accident, the defendant was not liable to
compensate her. The plaintiff also had
conceded in her own words that
she earned substantially higher salary than the deceased. It was
found that plaintiff had not proved
that the deceased had established
a legally enforceable duty to maintain her, while he was alive. In
the absence of this duty the
defendant cannot be held liable for
compensation.
[25] In
VERMAAK V RAF
2012 (2) SA 409
plaintiff and deceased had been living together
for many years. Deceased was a sole bread winner. Plaintiff was never
employed.
They had 2 children of their own. They had an agreement
that plaintiff would look after the children and the household while
deceased
took full financial responsibility for them and the
household. Everyone, including the deceased's relatives considered
them as
man and wife. Plaintiff was completely dependent on him. From
the facts of the case, a duty to support was established and thus
enforceable against the defendant.
[26] Counsel for the
Plaintiff in the case before me submitted that the deceased
voluntarily supported plaintiff and her first 2
children. Initially
this was against her will. She however conceded during cross
examination she was the one responsible for the
financial needs of
the children and deceased would assist whenever he could since she
earned a salary that was higher than his.
[27] In this matter the
children, had been living with their grandparents since 2008.
Plaintiff testified that they were supposed
to have joined her and
the deceased on 2013. A startling aspect of this case is the fact
that the natural father of the 2 children
is still alive. A
settlement order for the maintenance of the 2 children was obtained
by the plaintiff but she never pursued, it
nor enforced it. It was
also her desire not to involve the natural father in the affairs of
her 2 children since he did not prove
to be a responsible parent.
Attempts to involve himself were unwelcome. Deceased had not adopted
the children.
[28] In the Paixao case,
the father of the plaintiff's two daughters had passed away. The
deceased lived with the plaintiff and
her children for about 5 years
in the same household. Deceased supported them financially,
especially after the plaintiff had lost
her job. He took full
responsibility as a breadwinner. He paid for the school fees of the 2
children. He eventually paid for the
wedding of the eldest daughter.
He made a will wherein he bequeathed his estate to plaintiff and her
children, referring to them
as "our children". He had
already made preparations for a wedding for him and the plaintiff in
Portugal. A wedding date
was set. The only obstacle to their wedding
was the fact that deceased had to first divorce his wife. He
eventually divorced her
by Portuguese law and later by South African
law. Their families and friends recognized them as man and wife. The
intentions of
the deceased was clear in this case. It was an
intention to support plaintiff and her children for the rest of their
lives.
[29] The same cannot be
said of the deceased in this matter before me. Nothing hindered the
parties from concluding a marriage.
They had been living together for
2 years. Plaintiff testified that they had planned to have a wedding
after the delivery of the
baby. Her 2 children were also supposed to
join them in 2013. In
Paixao case page 6, paragraph (12)- Cachalia
J.A.
stated as follows "...
However only
a
defendant
to whom the deceased whilst alive owed a legally enforced duty to
maintain and support may sue in such
an action ..."
It
is clear that the duty must have been established by the deceased
while alive; not in the future. His intention can be determined
from
his own actions not from, what was supposed to happen in the future.
[30] In the present
matter before me can it be said that the conduct of the parties
created a legally binding obligation on the
deceased to support the
plaintiff and her first 2 children?
The duty to support
must be legally enforceable.
[31] The answer is in my
view, in applying the
bori mores criterion
to both the two
elements (a) and (b) as illustrated by Nienaber JA. In
SANTAM BPK
V HENERY.
Both plaintiff's in Paixao, and Vermaak cases, there
were permanent life partnerships that were known and recognized by
those that
knew them. The facts established that the parties were
dependent on the deceased while they were alive. As a result who ever
caused
the death of the "bread winner" was legally liable
to compensate his dependents. The plaintiff in this case, just as in
the Sibanda case was not financially dependent on the deceased while
he was alive. As he was not what society would call a breadwinner.
I
will not proceed to deal with the second and third issues that I was
called to adjudicate upon.
Conclusion.
[33] Plaintiff has failed
to prove that deceased had established a legally enforceable duty to
maintain her and her first 2 children
while he was alive.
[34] In the absence of
this duty the defendant cannot be held liable for the damages flowing
out of loss of support as claimed.
[35] The claim in respect
of plaintiff and her first 2 children must be excluded from the total
amount claimed.
[36] Plaintiff shall be
entitled to costs incurred in proving quantum in respect of Henrich
Brandt.
The order:
1.
The
defendant is liable to compensate plaintiff only in respect of the
loss of support suffered by the plaintiff in respect of the
minor
child H. B. as conceded by the defendant.
2.
Defendant
shall pay the plaintiff the sum of R1.008.347.
3.
Defendant
is liable to pay 30% of the plaintiff's costs which shall include
qualifying fees of the industrial psychologist Elzette
Keenan.
___________________
MSIBI S M
ACTING JUDGE OF THE
HIGH COURT OF
SOUTH AFRICA GAUTENG
DIVISION PRETORIA