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[2016] ZAGPPHC 461
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Cawood v Road Accident Fund (46482/2014) [2016] ZAGPPHC 461 (28 April 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 46482/2014
DATE:
28/4/16
DOROTHY HELLEN
CAWOOD PLAINTIFF
and
ROAD ACCIDENT
FUND DEFENDANT
JUDGMENT
KHUMALO J
INTRODUCTION
[1]
Section 17 of the Road Accident Fund Act reads: (1) The Fund or an
agent shall-
(a)
'subject to this Act, in the case of a claim for compensation under
this section arising from the driving of a motor vehicle
where the
identity of the owner or the driver thereof has been established;
(b}
subject to any regulation made under section 26, in the case of a
claim for compensation under this section arising from the
driving of
a motor vehicle where the identity of neither the owner nor the
driver thereof has been established, be obliged to compensate
any
person (the third party) for
any loss or damage which the third
party has suffered
as a result of any bodily injury to himself or
herself or the death of 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- pecuniary loss shall be limited to compensation
for a serious injury as contemplated in subsection (1A) and shall be
paid by way of a lump sum.'
[2]
Section 8 (3) of the Constitution of the Republic of South Africa,
1996 ("the Constitution") provides that:
(3)
When applying a provision of the Bill of Rights to a natural or
juristic person in terms of subsection (2), a court -
(a)
in order to give effect to a right in the Bill ,must apply, or if
necessary develop, the common law to the extent that legislation
does
not give effect to that right;and
(b)
may develop rules of the common law to limit the right, provided that
the limitation is in accordance with s 36 (1).
[2]
Whilst Section 9 of the Constitution reads:
(1)
Everyone is equal before
the law and has
the
right to equal
protection and benefit of the law.
(2)
Equality includes the full and equal enjoyment of all rights and
freedoms. To promote the achievement of equality, legislative
and
other measures designed to protect or advance persons, or categories
of persons, disadvantaged by unfair discrimination may
be taken.
(3)
The state may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including race, gender,
sex,
pregnancy,
marital status,
ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief,
culture, language and birth.
(4)
No person may unfairly discriminate directly against anyone on one or
more grounds in terms of subsection (3). National Legislation
must be
enacted to prevent or prohibit unfair discrimination.
FACTUAL
BACKGROUND
[3]
The Plaintiff in this matter was in a love relationship with the one
Izak Johannes Roux ("the deceased") who met his
demise when
he was knocked over by a motor vehicle driven by an unknown driver
along the R101 off-ramp between Naboomspruit and
Modimolle in the
Limpopo Province on 27 October 2012.
[4]
At the time of the deceased's death he had fathered a child born in
2005 with the Plaintiff. Consequently the Plaintiff instituted
an
action against the Defendant as a statutory insurer in terms of the
aforementioned s 17, in her personal capacity and in her
representative capacity as the legal guardian of the minor child, for
loss of maintenance and support, respectively.
[5]
In the particulars of claim, the Plaintiff alleges that the deceased
met his demise when they were in the final stages of preparations
and
arrangements for their wedding which was to take place on 15 December
2012 and have been living together as husband and wife
with their
minor child. The deceased was employed as a site manager at Legend
Construction (Pty) Ltd on a salary of R 11 173.00
and maintaining her
and the minor child. As a result the deceased was in the premises in
life obliged to maintain her and the minor
child and which he indeed,
did.
[6]
The Plaintiff alleges that on that premise the unlawfully caused
death of the deceased resulted in her and the minor child suffering
damages as follows:
[6.1]
Her loss of support R1
500,000.00
[6.2]
funeral expenses R11
428.50
[6.3]
Child's loss of support R700,000.00
[7]
The Defendant in its plea, save for admitting to the citations of the
parties, denied liability, putting Plaintiff to the proof
of all the
allegations as
per
the particulars of claim.
[8]
At the commencement of the trial, the parties confirmed that the
Defendant had in the meanwhile conceded to the merits in so
far as
negligence and the claim of the minor child is concerned for whatever
loss of support proved. The remaining issue was of
Defendant's
liability in respect of the Plaintiff's personal claim and quantum,
with the
Defendant persisting with the denial that the
relationship that Plaintiff had with the deceased entitled her to the
relief she is
seeking against the Defendant,
[9]
The parties applied that the issue of liability be separated from the
issue of quantum with the latter postponed sine die. The
order was
made accordingly. The
onus
is upon the Plaintiff to prove the
liability of the Defendant (that the nature of the relationship
between the Plaintiff and the
deceased gave rise to legally
enforceable right against the Defendant).
Evidence
[10]
The court had to decide the issue on the sole version of the
Plaintiff being the only witness that testified before the court.
Her
testimony was that when she first met the deceased in 2000 whom she
called "Sakkie" (for ease of reference I shall
refer to the
deceased as "Sakkie henceforth) he
has been a lodger at her
parent's house since
1998.
In 2005 Plaintiff gave birth to
Sakkie's child, a love relationship having developed between them
through the years since 2000.
They however only started living
together as husband and wife in January 2011. Sakkie worked in a
remote place to where Plaintiff's
parent's home was located in
Modimmole. Before the child was born, Sakkie would return to his
abode at her parents' home when he
is not working. After the child
was born he would return and reside with her and the child at her
parent's place. She was also
working then so
they would put
together their salaries. Sakkie would pay for some of the stuff.
[11]
However by the time Sakkie died, she says there had been a change in
their lives. In January 2011, she through work moved to
Mokgophong.
Sakkie then moved in with
her because Mokgophong was now closer to
his work. Sakkie was maintaining both her and the minor child, as she
was not
working. They had lived together as a family for a period
of a year and were going to get married in December 2012 when Sakkie
died,
less than six weeks before the wedding. She has not been in a
relationship with another man since she met Sakkie in 2000.
[12]
According to the Plaintiff, when Sakkie died
they had already
decided on a guest list, venue, photographer, menu and she had done
dress fittings. To prove that
she presented a document with
information about a certain wedding venue she confirmed to have
obtained when she and a friend made
enquiries. She said Sakkie was
only with her once when she made some of the enquiries. She also had
obtained a document from a
cake place in Lynwood to look at styles of
cake and kind of feelings. She and Sakkie had completed a guest list
of their family
and friends, which was in her handwriting. The guests
were going to arrive on 14 December 2012 and the wedding planned to
take
place the next day on a Saturday at 16h00. She had paid a
deposit to a shop for fitting a maximum of 4 dresses and had a
receipt
but was not sure of its whereabouts. The shop was going to
send her a voucher with different styles of dresses she had fitted
and
their different prizes so that she could make her choice. She
indicated to have paid a deposit of R4000 to a lady who owns a
photography
business who had given her an option to either pay a
deposit of R1 000 then or on the day of the wedding. She confirmed
from a
question by her counsel that Sakkie would have continued to
maintain her even after marriage as she was not working.
[13]
Her evidence during cross examination was that their relationship
gradually developed into a love relationship probably eight
(8) years
before Sakkie moved in with her in 2011. She said when she came back
from overseas in 2000, Sakkie was living with her
parents,
as her
brother's friend.
Around 2005 their child was born.
They were
kind of thrown together so she cannot be able to give an exact date
when their relationship started, it could have been
in 2002 or
earlier. Around 2002 Sakkie was working somewhere else,
so they
were apart although they were still in a relationship, he would come
back to her parent's home. At that time he did not
support her.
He
started to support her in 2011 when she stopped working and after he
moved in with her.
It was not a question of whose salary. When
asked to mention the exact date Sakkie moved in with her she said it
was after her father
suffered a stroke in 2010 and her parents had to
relocate to a farm they had bought in Mokgophong. Sakkie moved in
with her in
her parents' farm on
January 2011.
She lived with
Sakkie and their child in a separate house detached from the main
house which was occupied by her parents. They did
not pay rent, in
return it was expected that they would assist to take care of her
wheelchair bound father when his caregiver has
knocked off. He
sometimes needed to be carried around. At the time of Sakkie's death
she had stopped working since August 2011and
for the whole of 2012
Sakkie supported her. When asked where she was working she said she
ran her own catering business that she
gave away to her sister as it
was failing. Sakkie then maintained her and the minor child from then
onwards until he died. A lot
of people were aware of their
relationship, family, relatives and the community and could come to
court to testify about the relationship.
[14]
The Plaintiff confirmed during cross examination
that
the
document with information on the venue with a variety of options and
the price list of flowers was obtained only on enquiries
she made and
no booking or order was placed. Nevertheless
the lady who
furnished her with the undated price list of flowers was available to
come and testify.
Also that it would not have been possible for
her to do the cake tasting for their wedding because the document
provided for a cake
tasting in January 2013, after the date of the
wedding even though the cake list was for 2012. She said the
documents were obtained
not long after Sakkie had asked her to marry
him, it could have been June or July, she was not sure, mostly did
not have dates,
but she had not yet put an order six weeks before the
wedding. On the wedding dress and fittings she said she paid a
deposit and
fitted up to 4 dresses as is required by the shop but did
not have the brochure that had pictures of her fitted dresses that
the
supplier was supposed to furnish her with so that she can
finalise her selection on the dress.
She said the supplier was
however available to come and give evidence regarding the dress.
She
did not sign the terms on the back of any of the quotations since
that could have meant she was agreeing to purchase a dress.
After
which it was then going to be fixed. They also
still have not send
out invitations to their guests, friends and family or decided on the
design and what they were going to say
in the invitation cards.
Sakkie passed away six (6) weeks before the wedding day.
Legal
framework
[15]
The legal basis for the entitlement of persons, to claim from the
Defendant (RAF) due to the death of or bodily injury to any
other
person, is the existence of a legal duty of the deceased or injured
person to support the claimant, without which the Defendant
would not
be held liable for such a claim.
[16]
It is accepted that whilst there is a reciprocal duty of support
between married persons that arises by operation of law, no
such duty
exists in the case of unmarried cohabitants. The maintenance benefit
in terms of section 2(1) of the Maintenance of Surviving
Spouses Act
88 of 1984 ("the Act") falls within the scope of the
maintenance support obligation attached to marriage.
The Act applies
to persons in respect of whom the deceased person (spouse) would have
remained legally liable for maintenance,
by operation of law, had he
or she not died.
[16]
The emphasis however, as it should be, is on the object of the remedy
outlined to be the common law dependants' action, being
to place the
dependants of the deceased, to whom the deceased owed legally
enforceable duty to support and maintain in the same
position as they
would have been, as regards support and maintenance, had the deceased
not been unlawfully killed by a wrongdoer."
[17]
A conclusion is made in
Paixao and Another v Road Accident Fund
2012 [ZASCA] 130 2012 (6) SA at 377 that given the
sui generis
character of the common law dependant's action remedy, there
seems to be no proper reason to restrict it only to family or blood
relationship when social changes no longer require this. It was
agreed that it had been extended to include
permanent heterosexual
relationships who have to prove on a balance of probabilities the
tacit undertaking of reciprocal duty of
support
/ maintenance.
[18]
So, although as aforesaid, the court in
Paixao
stated that no
reciprocal duty of support arises by operation of law in the case of
unmarried cohabitants it also said that this
does not preclude such a
duty from being fixed by agreement, tacit or express. Parties in casu
were agreed on that principle which
was in conformity with what is
articulated in s 9 of the Constitution and the development of our
common law taking into account
the interest of society. So therefore
the right can be conferred as long as such agreement or facts
establishing a tacit agreement
are proven.
Analysis
of the evidence
[19]
On that premise, Mr Potgieter on behalf of the Plaintiff argued that
the Plaintiff had made a proper case for the relief that
she was
seeking. She has testified to facts that proves that the relationship
that was between herself and Sakkie was of a nature
that established
a reciprocal duty of maintenance and from which a tacit agreement of
mutual support can be inferred. Counsel further
argued that due to
the Defendant's failure to lead evidence in rebuttal the uncontested
version of the Plaintiff should be found
by the court not only to be
reliable but to sufficiently establish the necessary facts from which
the inference of a tacit agreement
to support each other that is
enforceable against the Defendant, can be drawn. The Plaintiff's case
was grounded on the nature
of the relationship that Counsel argued
was akin to a family relationship, such that it is deserving of the
law's protection.
[20]
On the other hand Mr Malesa the Defendant's counsel being not able to
adduce any evidence in rebuttal, argued to persuade the
court that
notwithstanding Defendant's failure to rebut, the facts that are
alleged to establish the nature of the relationship
that supposedly
gave rise to the reciprocal duty of maintenance are not only less
probable but also insufficient (n terms of its
weightiness or
probative value) in that the essential facts have not been
established.
[21]
Both parties based their argument on the principles enunciated in
Paixao.
Therefore the court had to decide if there was such an
agreement express or to be tacitly inferred from the alleged
surrounding
circumstances and how the parties had conducted their
relationship.
[22]
There was no express agreement in the case of Plaintiff and Sakkie,
and so the Plaintiff sought to rely on the nature of the
relationship
she had with Sakkie alleging it to have been akin to a family
relationship from which a binding reciprocal agreement
to support her
can be inferred since Sakkie also intended to make it formal by
marrying her. Plaintiff is therefore seeking the
protection of the
right arising therefrom alleging her circumstances to be similar to
those in
Piaxao.
The Defendant conversely argued that the
matter of
Paixao
is distinguishable there being a striking
difference in the facts and quality of evidence that was led.
[23]
It is therefore significant to briefly set out the facts in
Paixao:
The deceased, who was involved with Paixao, was taken in by the
family to be nursed during his illness. He continued living with
the
Paixaos after his recovery. The court found their living together to
have been in a mature, committed and loving family relationship,
accepted by relatives, community and friends as a family unit. The
relationship was attested to not only by the mother and daughter
appellants but also by a close family friend from the community who
also was involved in the arrangement of the couple's wedding.
The
couple practically pooled their resources together when they were
both working and when Mrs
Paixao
was retrenched the deceased
supported the entire family as if his own. The deceased expressly
stated that he regarded the
Paixaos
as his own family. He made
his intentions to support them clear all this time, before and after
his divorce from his ex-wife that
took place in South Africa. He
still had to divorce in Portugal where the marriage was concluded,
before he marries
Paixao.
In fulfilment of his intentions, he
paid for everything and did not want her to work, undertakingto
support her and the children.
Two major acts also followed the
undertaking, the deceased in the meantime concluded a joint will with
Paixao
and in terms of the content of the will she was the
sole heir of their amassed estate, nominating their children as their
heirs
and as beneficiaries of a trust. All this done while planning
to get married. His divorce came through in Portugal after which they
embarked on preparations for the wedding. By the time the deceased
passed away
Paixao
had been to Portugal to meet her
prospective in laws and made preparations for the wedding there. The
court clearly found those
major acts to have resulted in a tacit
agreement to assume the duty to support them before marriage.
[24]
In
casu,
considering their living circumstances, Sakkie was
living with Plaintiff's parents as a lodger for a considerable part
of their
relationship and she had not attached any linkage or
exclusivity to such lodging as she did not regard their situation as
living
together. She actually described the relationship to have been
of a casual nature and gradually developing into a love relationship.
During that time Sakkie would go to his work at a remote location and
when he was not working, return to her parents' home where
he was a
lodger, or as indicated later as her brother's friend, not sure which
one applicable. After their child was born in 2005,
Sakkie would come
back and they will put their resources together, but then again she
alleged that Sakkie would buy certain stuff,
which is contrary to
putting their resources together. Notably, she did not allege to have
been living together with Sakkie as
a family at the time. So from
these circumstances nothing can be inferred.
[25]
According to her, the determining fact was her move to Mokgophong in
2011 when Sakkie moved in with her and they lived together
as a
family. Plaintiff had initially alleged to have moved to Mokgophong
due to work. On answering the court's questions it came
out that the
move was actually necessitated by her parents who had relocated to
Mokgophong. The same set up continued. She continued
staying at her
parents' home allegedly now in a detached house where she then lived
separately with Sakkie and their child as a
family. Sakkie had been
living with her parents all along, therefore inherently expected and
probable that the relocation necessitated
his move too. It was also
closer to Sakkie's work. These facts therefore do not signify any
major event. The detail furnished on
the court's question that they
lived in their own house separate from her parent's house was not
substantiated. Therefore the defendant's
argument is correct that it
is less probable that the arrangement would have been different when
they moved to Mokgophong due to
the Plaintiff's father's stroke.
[26]
None of the relatives, friends or community members were called to
attest to this alleged significant change of circumstances,
even
though Plaintiff indicated that they are available. The evidence was
insufficient and just mere assertion by the Plaintiff.
Moreover, the
discrepant reason she gave for the move and the fact that several
probabilities may be inferred from the circumstances
makes her
evidence not sufficient to be relied upon. The probity thereof is
questionable without any substantial proof or corroboration.
No
credible inference that can be drawn from such facts.
[27]
Further it was her testimony that Sakkie did not pay rent but in lieu
thereof assisted in taking care of her father. When asked
by the
court for clarification, she indicated that it would be when her
father's caregiver had knocked off. If Sakkie had moved
in with her,
it is unlikely that he would be paying rent, except if his tenancy
was continuing albeit under the new conditions.
Otherwise why would
it be necessary for him to have been exonerated from paying rent
under such conditions except as being a lodger?
The evidence leave
the status of Sakkie's stay at the two propertiesy belonging to the
Plaintiff's parents indistinguishable. It
also does not sufficiently
prove the nature of the relationship alleged by the Plaintiff. She
again testified that Sakkie would
still go to work and when he is not
working return to the farm.
[28]
Plaintiff also said a year prior to Sakkie's death she was working
and they
shared responsibilities.
And for the rest of the
period after that she did not work and was supported by Sakkie until
he passed away. During that period
Sakkie asked her parents for her
hand in marriage. Their sharing of responsibilities was not
adequately explained, as the facts
alleged were unclear arid
contradictory, making it less probable. Her mother would have been a
perfect witness to testify in substantiation
of all these allegations
but was not called. She would have corroborated her allegation on
their cohabitation in 2011that was allegedly
akin to a family
relationship and on Sakkie supporting her. Her failure to testify was
not explained, regrettably it is only the
Plaintiff's assertion that
is before court.
[29]
The inadequacy of Plaintiff's evidence created problems with regard
also to the weight to be placed on the assertions she made
to prove
that they were on the final stages of preparation and arrangement of
their wedding as revealed by the cross-examination.
In her evidence
in chief, she said Sakkie passed away when they had already decided
on a guest list, venue, photographer, menu
and had also done dress
fittings. However the only proof she could present were papers,
quotations and pamphlets allegedly obtained
on enquiries she made.
The Plaintiff confirmed
that in actual fact
no booking for the
venue or order for the flowers was placed yet. Also that it would not
have been possible for her to do the cake
tasting for their wedding
because the document provided for a cake tasting in January 2013,
after the date of the wedding even
though the cake list was for 2012.
There was no menu decided upon. On the wedding dress she did not have
proof of the deposit she
paid for the dress fittings. She did not
sign the terms on the back of any of the quotations since that could
have meant she was
agreeing to purchase a dress. Their purported
guest list is scribbled in her own hand writing. There was no
design
or what was going to be in the invitation cards
six (6) weeks
before the wedding day. According to the documents presented for
photography a deposit of RlOOO was payable and she
says she paid an
amount of R4000 without furnishing any proof thereof. There was
actually no real evidence tendered to prove or
sustain the
allegation that the deceased and the Plaintiff were at their final
stage of preparation or arrangement for their wedding.
[30]
On the presentation of such less convincing and inadequate
evidence one expected that the Plaintiff will substantiate her
evidence
with receipts of deposits paid or use the opportunity to
call the people she alleged to have engaged their services or with
whom
he had made any arrangements regarding the wedding to come and
testify, especially the ones she confirmed their willingness and
availability, none of them was called. Any of the relatives, family
or friends could have expounded and verified on the nature
of the
relationship. The court is bound to draw a negative inference that
such corroboration would probably not have materialised.
[31]
Counsel's argument that since her version is uncontested, it
should be regarded as reliable and sufficient is misguided. In the
same case of
Piaxao
that he relies on, the court clearly
stated that the fact that the Defendant cannot refute the allegations
by the Plaintiff does
not mean that her say so will be enough. It is
stated on [29] that:
"A
plaintiff's assertion, without more, that he or she was in a life
partnership, cannot be taken as sufficient proof of this
fact.'
(In
this case the fund conceded that the relationship was a life
partnership.) Proving the existence of a life partnership entails
more than showing that the parties cohabited and jointly contributed
to the upkeep of the common home. It entails, in my view,
demonstrating that the partnership was akin to and had similar
characteristics - particularly a reciprocal duty of support - to
a
marriage. Its existence would have to be proved by credible evidence
of a conjugal relationship in which the parties supported
and
maintained each other. The implied inference to be drawn from these
proven facts must be that the parties, in the absence of
an express
agreement, agreed tacitly that their cohabitation included assuming
reciprocal commitments - ie a duty to support-to
each other."
(my emphasis)
[32]
Also the fact that the Defendant did not call any witnesses does not
necessarily affect his ability to meet the Plaintiff's
case, if there
is a case to meet. As an onus to rebut can of course be discharged
without the party on whom the onus lies presenting
evidence. It is
confirmed by Frank AJ in
Shiimi v Mutual and Federal Insurance
Company of Namibia Ltd
(Case no {P) I 2269/2007)
[2008] NAHC 109
(28 July 2008)
[33]
There are no reliable and sufficient proven facts from which an
implied inference can be drawn that the parties were in cohabitation
and in the absence of an express agreement, that they agreed tacitly
that their relationship included assuming a reciprocal commitment
of
a duty of support to each other, such exercise is not achievable.
There is therefore no evidence to establish the essential
elements of
the Plaintiff's dependant action for loss of support, that is that
their relationship was of a nature similar to a
marriage, an order of
absolution from the instance would then be appropriate.
[34]
I therefore under the circumstances make the following order,
[34.1]
In respect of the Plaintiff's claim, the order is absolution from the
instance;
[34.2]
The Defendant is only liable to pay the Plaintiff's loss of support
in her representative capacity on behalf of Alannah Zoe
Cawood,
entitling her (in the aforesaid capacity) to 100% of her proven or
agreed damages.
AND
By agreement between the parties incorporate the Draft order annexed
hereto marked "X" that has been made an order
of court
[34.3]
The Defendant pays Plaintiff's taxed or agreed Party and Party costs
on the High Court scale in respect of liability, up
to and including
22 April 2016. Such Party and Party costs will include (but not
limited thereto)
[34.3.1]
Costs of senior counsel (including his day fee for 23 March 2016 and
fee for noting the judgment on 22 April 2016);
[34.3.2]
Costs of the reports, including follow-up and addendum reports, if
any, of:
[34.3.2.1]
Prof J W van der Spuy;
[34.3.2.2]
Prof G Lemmer.
[34.3.3]
The reasonable reservation (full day fee), preparation and qualifying
fees, if any, as the Taxing Master may on taxation
determine, of the
following experts:
[34.3.3.1]
Prof J W van der Spuy;
[34.3.3.2]
Prof G Lemmer.
[34.4]
Costs related to the consultation with the experts as set out in
paragraph 3.3 above and Plaintiff, on 22 March 2016, including
travelling expenses incurred by Plaintiff and/or Plaintiff's
Attorneys as well as experts, as well as travelling and waiting time
at the full hourly Party and Party rate. Such costs will also include
the airfare and accommodation costs of Prof J W van der Spuy
for
attendance of the aforesaid consultation and trial on 23 March 2016;
[34.5]
...
[34.6]
Costs of the preparation of 5 (five) trial bundles;
[34.7]
Assessors fee for obtaining SAPS Dossier in the sum of R3, 632.05
(copy of account to be attached to Plaintiff's party and
party bill
of costs)
NB:
paragraph 3.5 excluded, there was no interpreter used during the
trial on 23 March 2016.
---------------------------
N V
KHUMALO J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION: PRETORIA
On behalf of the
Plaintiff: Adv
TALL Potgieter
Instructed
by: Tsebane
Molaba
Attorneys
On behalf of the
Defendant: Adv
J Malesa
Instructed
by: T
M
Chauke Attorneys
IN THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
PRETORIA, on
this the 22nd day of APRIL
2016
BEFORE Her
Honourable Lady KHUMALO
J
CASE
NUMBER: 46482/2014
In the matter
between:-
DOROTHY HELEN
CAWOOD
(SELF
and
on
behalf
of ALANNAH
ZOE
CAWOOD)
Plaintiff
and
ROAD ACCIDENT
FUND
Defendant
DRAFT
ORDER
AFTER
HAVING HEARD COUNSEL FOR BOTH PARTIES AND HAVING
READ
THE
PAPERS
FILED
HEREIN
,
it is ordered that:
1.
The issues of liability and
quantum
are separated in
terms of Court Rule 33(4).
2.
Defendant is only liable to pay Plaintiff's loss of support in her
representative capacity on behalf of Alannah Zoe Cawood, entitling
her (in the aforesaid capacity) to 100% of her proven or agreed
damages.
3.
Defendant pays Plaintiff's taxed or agreed Party and Party costs on
the High Court scale in respect of liability, up to and including
22
April 2016. Such Party and Party costs will include (but not limited
thereto):
3.1
Costs of Senior Counsel (including his day fee for 23 March 2016 and
fee for noting the Judgment on 22 April 2016);
3.2
Costs of the reports, including follow-up and addendum reports, if
any, of:
3.2.1
Prof J W van der Spuy;
3.2.2
Prof G Lemmer.
3.3
The reasonable reservation (full day fee), preparation and
qualifying fees, if any, as the Taxing Master may on taxation
determine,
of the following experts:
3.3.1
Prof J W van der Spuy;
3.3.2
Prof G Lemmer.
3.4
Costs related to the consultation with the experts as set out in
paragraph 3.3 above and Plaintiff, on 22 March 2016, including
travelling expenses incurred by Plaintiff and/or Plaintiff's
Attorneys as well as experts
at R3.50 per kilometre
travelled
, as well as travelling and waiting time at the
full hourly Party and Party rate. Such costs will also include the
airfare and accommodation
costs of Prof J W van der Spuy for
attendance of the aforesaid consultation and trial on 23 March 2016;
3.5
Costs of the interpreter, Mr R Buda, for trial on 23 March 2016;
3.6
Costs of the preparation of 5 (five) trial bundles;
3.7
Assessor's fee for obtaining SAPS Dossier in the sum of R3,632.05
(copy of account to be attached to Plaintiff's Party and Party
bill
of costs).
4.
The issue of
quantum
is postponed
sine die.
BY
ORDER
REGISTRAR
71.
SAVAGE, JOOSTE & ADAMS INC. REF: MR BOOYENS/dp/SC223