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[2016] ZAGPPHC 848
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Seoleseng and Another v Road Accident Fund (72837/2014) [2016] ZAGPPHC 848 (15 September 2016)
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REPUBLIC
OF SOUTH AFRICA
OFFICE
OF THE CHIEF JUSTICE
(GAUTENG
DIVISION. PRETORIA)
CASE
NO: 72837/2014
DATE:
15 SEPTEMBER 2016
In the matter
between
MOKULUPI SIMON
SEOLESENG
................................................................................
First
Plaintiff
MOGOLOSI
OESLEY
KASEBEDILE
........................................................................
Second
Plaintiff
And
THE ROAD
ACCIDENT
FUND
.............................................................................................
Defendant
JUDGMENT
Fourie AJ
1. This is a
claim for damages resulting from the death of Motlogomang Martha
Kasebedile, who died in a motor vehicle collision
that occurred on 22
December 2013. The first plaintiff claims in his personal capacity as
well as in his capacity as father and
guardian of G A K, a girl born
on 27 May 2005. The second plaintiff is the son of the deceased only,
but his claim did not serve
before me.
2. I was informed
by counsel that the issue of liability had been disposed of and that
the defendant had agreed to compensate the
first plaintiff for 100%
of his proven or agreed damages in his personal and representative
capacities. The parties had also agreed
that the defendant pay an
amount of R 24 100.00 in respect of funeral expenses.
3. The issues
before me were whether the plaintiff has a claim for loss of support
in his personal capacity, and the contingencies
to be applied to the
respective claims for loss of support.
4. The first
plaintiff relied on the evidence of Mr G Whittaker of Algorithm
Consultants and Actuaries, and the parties agreed to
use this
actuarial report as the basis for computing the first plaintiffs
claims for loss of support. The parties further agreed
that:
4.1.The first
plaintiffs claim in his personal capacity, should he be found to have
a claim, be calculated on the basis that the
first plaintiff received
R 500.00 per month from the deceased and would have done so to age
60, (from when he will receive a State
pension); and
4.2.
That the minor child would have been dependant until the age of 21.
5. The first
plaintiff testified that he lived with the deceased as lovers from
2000 until her death in December 2013. They were
not married and had
one child together. The first plaintiff testified that the deceased
commenced working as a domestic worker
in 2005. The first plaintiff
had piece-jobs until 2013 when he worked at a construction site for
six months. He was laid off during
September 2013. While employed, he
contributed to the house-hold expenses. When the first plaintiff was
not earning, the deceased
gave him R 500.00 per month, and at the
time of her death, the first plaintiff was again receiving R 500.00
per month from the
deceased. He was unable to state whether the
deceased would have continued to support him had she not passed away
in December 2013.
This aforesaid evidence was not disputed by the
defendant. Presently his brothers and sisters give him money when
they can afford
to do so. He is 59 years old and had not been able to
find any work since. This evidence was disputed and it was contended
that
the first plaintiff is not indigent. That was the case for the
plaintiff.
6. Before
considering the contingencies proposed by the parties’
respective counsel, it is necessary to consider whether the
first
plaintiff has a claim in his personal capacity whatsoever. Curiously,
neither counsel referred me to any authority in this
regard.
7. The underlying
principle was stated thus in Paixao & Another v Road Accident
Fund,
2012 (6) SA 377
(SCA) at paragraph 12:
U
A claim for
maintenance and
loss of support suffered as a result of a breadwinner’s death
is recognised at common law as a ‘dependants’
action. The
object of the remedy is to place the dependants of the deceased in
the same position, as regards maintenance, as they
would have been
had the deceased not been killed. ... However, only a dependant to
whom the deceased, whilst alive,
owed
a legally enforceable duty to maintain and support
may sue in
such an action. Put differently, the dependant must have a right
which is worthy of the law’s protection to claim
such support."
(My emphasis).
8. Having
considered the development of the common law, the Supreme Court of
Appeal extended the dependant’s common law action
for loss of
support to unmarried persons in heterosexual relationships, who have
established a contractual reciprocal duty of support
(my emphasis).
The court further found that on the evidence before it, the
appellants had tacitly established the existence of
a legally
enforceable duty of support. See also Engela v Road Accident Fund,
2016 (1) SA 214
(GJ); Verheem v Road Accident Fund, 2012 (2) SA409
(GNP).
9. As the first
plaintiff and the deceased were not married to one another, the
deceased did not owe any duty of support to the
first plaintiff in
terms of the common law. The question is accordingly whether the
first plaintiff has established that he and
the deceased had
established a contractual duty of support and that he is accordingly
entitled to rely on the principle established
in Paixdo.
10. As I have
already mentioned, the evidence led by the first plaintiff was not
seriously disputed by the defendant’s counsel.
This is hardly
surprising. It is not easy, and may even be impossible, for a
defendant such as this to place evidence before court
to refute the
plaintiffs assertion that the deceased had undertaken a duty of
support towards him or her.
11. But as was
stated in Paixao, “(a) plaintiff’s assertion, without
more, that he or she was in a life partnership,
cannot be taken as
sufficient proof of this fact ... 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 parties, in absence of an express
agreement, agreed tacitly that
their cohabitation included assuming
reciprocal commitments - i.e. a duty to support - to each other.”
(See paragraph 29).
12. The evidence
led on behalf of the first plaintiff was unsatisfactory insofar as it
was lacking in facts. While it may well be
so that the first
plaintiff received financial support from the deceased, in my view
the evidence was insufficient to establish
not only that they had an
enforceable agreement, but that the obligations created by the nature
of their relationship were worthy
of the law’s protection. It
follows that the first plaintiff has failed to demonstrate that he
has a claim as against the
defendant in his personal capacity.
13. The amount
calculated by the actuary, Mr Whittaker, as being the past loss of
support suffered by the minor child should the
first plaintiff have
no claim in his personal capacity, amounts to R 63,074.00. In respect
of this claim, the parties were in agreement
that a contingency of 5%
should be deducted. The amount is accordingly reduced to R 59,920.30.
14. The amount
calculated as the future loss of support, is R 215,225.00. The first
plaintiffs counsel, Ms Schreuder, argued that
a 10% contingency in
respect of future loss of support would be reasonable, while counsel
for the defendant, Mr Shitlhelana, submitted
that a 12.5% contingency
should be applied. He was unable to provide any authority to support
such a submission. The minor child
lived with the deceased who was
employed from about the time of her birth and who was the primary
bread-winner. There is no reason
to apply any contingency other than
the normal 10%. This claim is accordingly reduced to R 213,072.75.
15. Accordingly,
the following order is made:
15.1. The
defendant is ordered to pay to the first plaintiff, in his capacity
as father and guardian of G A K, an amount of R 272,993.05,
such
amount to consist of the following:
15.1.1.
R 59,920.30 in respect of past loss of support;
15.1.2.
R 213,072.75 in respect of future loss of support.
17.2 The
defendant is ordered to pay interest on the amounts set out in
paragraph 17.1 at 10.5% per annum, from 14 days after the
date of
this judgment to date of payment.
17.3 It is
recorded that the parties have agreed that the defendant will pay to
the first plaintiff an amount of R 24,100.00 in
respect of funeral
expenses.
17.4 The
defendant is ordered to pay the first plaintiffs costs of suit,
including the qualifying expenses of the expert, Mr G Whittaker
of
Algorithm Consultants and Actuaries.
17.5 No order is
made in respect of the second plaintiffs claim.
H
R FOURIE
ACTING
JUDGE OF THE HIGH COURT
FOR
THE PLAINTIFF ADVOCATE: L SCHREUDER ATTORNEYS: AK MIA INC,
JOHANNESBURG
FOR
THE DEFENDANT ADVOCATE: R SHITLHELANA
ATTORNEYS:
DIALE MOGASHOA ATTORNEYS, PRETORIA