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[2016] ZAGPPHC 559
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Motha v Road Accident Fund (40852/2015) [2016] ZAGPPHC 559 (23 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: 40852/2015
23/6/2016
Reportable:
No
Of
interest to other judges: Yes
Revised.
SDUHLA
MARTHA
MOTHA Plaintiff
and
THE
ROAD ACCIDENT
FUND Defendant
JUDGMENT
VAN
DER WESTHUIZEN, A J
1.
The plaintiff is Sduhla Martha Motha, a major female, who in her
personal capacity, claims damages from the defendant, the Road
Accident Fund, suffered as a result of the death of the plaintiff's
daughter, Lucy Mahlangu (the deceased).
2.
The deceased was a passenger in a motor vehicle that was involved in
a collision with another vehicle on or about 29 July 2013.
The
deceased died instantly at the scene of the said collision.
3.
The defendant conceded negligence and accepted liability to pay 100%
of the damages proven by the plaintiff.
4.
When the matter was called,
there remained two issues to be decided. These related to whether the
plaintiff was entitled to claim
loss of support from the defendant
suffered as a result of the death of the deceased and if so, the
quantum
thereof.
The latter was to be postponed.
5.
In the particulars of claim as amended, the plaintiff alleged that
she is indigent.
6.
The plaintiff testified on her behalf and the evidence of another
daughter of the plaintiff was led. The latter's evidence is
irrelevant to the issue to be decided and no further reference to
that evidence shall be made in this judgment.
7.
The evidence of the plaintiff can be summarise as follows:
(a) The plaintiff is 59
years of age and uneducated;
(b) Her husband passed
away 16 years ago;
(c) She had six children,
five of whom are still alive and living with her. One is still
attending school. Another daughter commenced
studies at the Tshwane
University of Technology, but was obliged to end her studies after
the death of the deceased, who paid for
her studies prior to deceased
untimely death. The other three are unemployed;
(d) The deceased was an
intelligent young lady who studied at the University of Pretoria with
a full bursary and completed her course
within three years. The field
of study apparently related to computers;
(e) After graduating form
university, the deceased obtained employment at the University of
South Africa;
(f) The plaintiff had no
formal education or other training or skills. Prior to the said
collision, the plaintiff made ends meet
by doing piece jobs for her
neighbours who would reward her by supplying whatever they had
available such as maize, or other vegetables,
or the like. She did
not receive any pecuniary reward;
(g) The plaintiff
testified that the deceased continually assured her that once
the deceased is gainfully employed she would
take care of the
plaintiff;
(h) The plaintiff
testified that the deceased honoured that undertaking until the day
of the collision. She further testified that
the deceased was obliged
to do so as "
she
knew from where she came'',
indicating an obligation to support her parents in terms of
customary principles;
(i) The deceased in
fact,
on obtaining employment at UNISA, supported the plaintiff and did
so in the following manner:
(1)
The deceased renovated the plaintiff's house;
(2)
Purchased furniture for the plaintiff's home;
(3)
Paid for electricity for the plaintiff's home;
(4)
Gave the plaintiff an amount of R2 500.00 per month for purchasing
groceries for the household;
(5)
Paid for whatever was required at the plaintiff’s household and
which was necessary; and
(6)
Generally maintained the plaintiff and the common household.
(j) The deceased resided
with the plaintiff and the deceased's siblings at the
plaintiff's home;
(k) Subsequent to the
deceased's demise as a result of the collision, the plaintiff was
destitute and sought employment. She obtained
employment as a
char for four to five days a week, and when she was able to
work most of the days in a month, she would
earn R800.00 per month,
if not, her income was much less;
(l) She was fortunate to
take up residence at one of the households were she was employed. If
she did not have that opportunity,
she was obliged to purchase a bus
ticket to travel back and forth from her home and that would set her
back R1 000.00 per month,
far in excess of what she earned in a good
month;
(m) The plaintiff
testified that her youngest son, who is attending school, fetches
wood from the veld and sells it to earn some
money, which he gives to
the plaintiff to buy necessities. This income is a mere pittance.
8.
The defendant led no evidence, however was content to rely on
cross-examination of the plaintiff. The stance of the defendant
during cross-examination of the plaintiff was that she had not led
any evidence of her personal financial needs and only testified
to
the financial needs of the household collectively.
9.
I am of the view that the plaintiff has proven that she was
financially supported by the deceased during the deceased's working
life and would have continued to enjoy financial support from the
deceased in future, had it not been for the untimely death of
the
deceased as a result of the said collision.
10.
Mr Moukangwe, on behalf of the defendant, premised his submissions on
the aforementioned stance of the defendant. He submitted
that the
defendant approaches a claim for loss of support resulting from a
collision on the individual needs of a claimant and
not on a
collective basis.
11.
Counsel for the defendant submitted that the plaintiff has not shown
that she is indigent. It is submitted on behalf of the
defendant that
the plaintiff has employment and receives pecuniary reward in respect
of her employment. Thus, Mr Moukangwe submits
that the plaintiff has
not proven any loss of support in respect of her own financial needs
or that she is indigent. Accordingly,
the plaintiffs claim stands to
be dismissed.
12.
Counsel for
the plaintiff, Mr Masina, submitted that the plaintiff has indeed
proven that she is indigent and that she depended
upon the deceased
for financial support. In this regard he referred to and relied upon
two judgments supporting the plaintiff s
view that an approach on a
collective basis in respect of a loss of support due to a collision
is good in law. In this regard
he referred to the judgments in
Fosi v
Road
Accident Fund
[1]
and
Jacobs v
Road Accident Fund.
[2]
13. The issue of whether
a party is indigent and whether a duty rests upon a child to maintain
his or her parents was considered
and discussed in the
Fosi
-matter.
In that regard the court held that:
(a)
The
test set in
Smith
v Mutual
&
Federal
Insurance
Co
Ltd
[3]
was
too stringent and onerous when compared to pronouncements of courts
in earlier decisions;
[4]
(b)
The
principles enunciated in
Wigham
v British Traders Insurance
Co
Ltd
[5]
and
Oosthuizen
v Stanley
[6]
were
to be preferred;
[7]
(c)
The
court, with reference to
Khan
v Padayachy,
[8]
accepted
the principle that where another child subsequently contributes to
the plaintiffs needs, such contribution does not affect
the
plaintiffs claim.
[9]
14. The court in the
Fosi
-matter, further dealt with the African law perspective in
the context of claims for loss of support where children supported
and
maintained their parents prior to their (the children's) death.
15.
In that
regard the court referred to section 211(3) of the Constitution,
which provides that courts must apply customary law when
that law is
applicable, subject to the Constitution and any legislation that
specifically deals with customary law.
[10]
16.
Applying
customary law (African law), the court found that it is incumbent
upon a child to reciprocate, by supporting a parent once
that child
is in a position to do so.
[11]
17.
The court
in the
Fosi
-matter
held, that the customary law relating to the principle that a duty
rests upon a child to support his or her parents when
in a position
to do so, should apply in determining the liability of the Road
Accident Fund towards a parent who has lost a child
in a motor
vehicle accident, caused by the negligent driving of a motor
vehicle.
[12]
In this regard
the court further referred to the judgment in the Jacobs-matter.
[13]
18.
In the
Jacobs-matter
the
court similarly dealt with the
Smith,
Wigham
and
Oosthuizen
matters.
In that regard the court held that the deciding principle is whether
the parent can prove that he or she was dependant
on the child's
contribution for the necessities of life.
[14]
19.
The court
in the
Jacobs-
matter
held that where a child voluntary assumes the duty to support the
parent and undertakes to do so, that undertaking gave the
parent, and
thus the plaintiff, a reasonable expectation that such maintenance
contributions would continue.
[15]
20.
In my view
the approach by the court in the
Wigham-matter
that
the plaintiffs status in life to what she has been accustomed to, is
a factor to be considered in respect of whether the
plaintiff
is indigent or destitute.
[16]
21.
Mr Moukangwe submitted that the approach in the
Fosi
-matter is
one of collective needs determination as opposed to individual needs
determination. He further submitted that such approach
is incorrect
when determining the liability of the defendant in respect of loss of
support. He submitted that the African law approach
was
inappropriate.
22.
I have
carefully considered the
Fosi
and
Jacobs
-judgments.
I am of the opinion that those judgments correctly reflect the
principles to be applied, not only where both the plaintiff
and the
deceased are subject to customary law, but also where in life a duty
rested upon the child to support his or her parents.
[17]
I am in agreement with those judgments.
23.
I find that the plaintiff has proven a dependency upon the deceased
for financial support.
24.
It follows that the plaintiff has proven that the deceased was under
a legal duty to support the plaintiff at the time of the
collision.
I
grant the following order:
1. The deceased was under
a legal duty to support the plaintiff at the time of the collision;
2. The plaintiff is
liable to compensate the plaintiff the amount of damages the
plaintiff is able to, prove;
3. The defendant shall
pay the plaintiffs costs.
4. The issue relating to
quantum
is postponed
sine die.
_______________________
C
J VAN DER WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION
On
behalf of Plaintiff:
SM Masina
Instructed
by:
Marisana Mashedi Attorneys
On
behalf of Defendant:
E Moukangwe
Instructed
by:
Tsebane Molaba Inc.
[1]
2008(3) SA 560 (C)
[2]
2010(3) SA 263 (ECP)
[3]
1998(4) SA 626 (C)
[4]
At p. 564, [11]
[5]
1963(3) SA 151 (W)
[6]
1938 AD 322
[7]
At p. 564, [12]
[8]
1971(3) SA 877 (W)
[9]
At p. 566, [15]
[10]
At p. 570, [24]
[11]
At pp 567-568, [16] - [17]
[12]
At p. 571, [25]
[13]
ibid
.
[14]
At p. 269, [20]
[15]
At pp 268 -269, [22]
[16]
At 153G
[17]
Cf. Oosthuizen and Wigham, supra