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[2016] ZAGPPHC 876
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Langa and Others v Road Accident Fund (2014/67644) [2016] ZAGPPHC 876 (22 September 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
22/9/2016
CASE NO: 2014/67644
Reportable:
No
Of
interest to other judges: No
Revised.
CASE
NO: 2014/67644
In
the matter between:
DOMU
BUYISILE
LANGA
First
Plaintiff
THANBANI
ZUNGU
Second
Plaintiff
GAMELIHLE
ZUNGU
Third
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
Murphy
J
1.
The parties have placed a stated case before me
for determination.
2.
On 21 November 2009, Siphwe Zungu ("the
deceased") was a passenger in a motor vehicle with registration
number […]
driven by R Veerasamy ("the insured driver").
3.
The deceased was killed in a motor vehicle
collision in the vicinity of Mayuba, Kwa-Zulu Natal, when the insured
driver lost control
of the vehicle in which they were travelling. The
vehicle left the road and overturned resulting in the deceased
sustaining fatal
bodily injuries, in consequence of which he died at
the scene of the collision.
4.
The deceased was 27 years of age at the time of
the collision.
5.
The first plaintiff is Ms Domu Langa, the mother
of the deceased who was 50 years of age at the time of the collision.
She originally
claimed compensation both in her personal capacity as
well as in her representative capacity, as mother and natural
guardian of
her minor daughter Gamelihle Zungu, the sister of the
deceased who was 12 years of age at the time of the collision. The
second
plaintiff is Thabani Zungu, the deceased's brother, who was 14
years of age at the time of the collision. Both children have now
attained majority, and hence Gamelihle is now cited as the second
plaintiff.
6.
It is common cause that the defendant is liable
for damages suffered by any person resulting from the death of the
deceased, as
contemplated by section 17 of the Road Accident Fund Act
56 of 1996 ("the Act").
7.
At the time of his death, the deceased was
employed by Tiger Packaging (Pty) Limited and was earning a salary of
R 9 000, 00 per
month.
8.
During the deceased's lifetime, he supported the
first plaintiff. The defendant is liable to compensate the first
plaintiff in her
personal capacity for the loss of support which she
sustained. Her loss of support has been quantified at R 491 180,
which amount
the defendant has agreed to pay. There is accordingly no
need to make any order in respect of her settled claim. This judgment
is concerned only with the claims of the children.
9.
Gamelihle and Thabani were scholars and minors at
the time of the deceased's death. Their parents are the first
plaintiff, Domu,
and the late Phath Zungu who passed away on 27
February 2000. Domu, the first plaintiff, was unemployed at the time
of the deceased's
death and is still unemployed and was unable to
support the minor children. The deceased was accordingly the sole
source of support
for his two minor siblings. As the children have
attained the age of majority their claim is for past loss of support,
which they
have agreed to limit to the period before they turned 18
years of age.
10.
The only issue this court is required to determine is
whether the defendant is liable to compensate Gamelihle and Thabani
for their
loss of support by the deceased while they were minors. In
the event that the defendant is liable to compensate the children for
their loss of support the defendant has agreed the amount payable in
respect Gamelihle and Thabani is R 115 931 and R 70 015 respectively.
11.
Damages for loss
of support normally can only be suffered where the third party had a
right to claim maintenance from the deceased.
[1]
The amounts payable by a deceased as maintenance but which he or she
is unable to pay due to his or her death caused by the negligent
and
unlawful driving of a motor vehicle may be recovered by the third
party to which the deceased owed a legal duty to maintain.
12.
Our law takes a generous view towards the duty of
support by recognising the changing nature of relationships of
dependency in modern
society. The point of departure is whether a
dependant has a claim worthy of protection by law. The answer is
determined by reference
to the morality of society, which is divined
by an exercise of judicial policy-making aimed at acknowledging that
social changes
warrant legal norms to encourage social
responsibility. Our law has thus recognised that the duty of support
extends to children,
parents and even siblings, such as in this case,
with due regard to factors such as morality, justice and the history
of support
even in instances where such support was not mandatory or
typical.
13.
In
Oosthuizen
V Stanley
[2]
the court found that a legal duty of support exists between an
indigent parent and an able child. Indigent parents accordingly
will
have a claim for loss of support in the event that the child was
contributing to their maintenance. In an
obiter
dictum
the
court stated further that an indigent brother or sister might be
entitled to claim support from a sibling if the parents are
unable to
provide
[3]
. The governing
principle always must be whether the indigent can prove dependency on
the contribution of the deceased for
the necessities of life,
which in turn is contingent on the dependant's station in life.
[4]
In the case of an indigent parent even if the plaintiff's surviving
children had been able to contribute to his or her maintenance,
this
would not exclude a claim: the co-liability of siblings is irrelevant
to a claim against one of them.
[5]
It would be invidious for the court to rule that there had been no
duty of support when the deceased had voluntarily assumed such
a
duty. An agreement by a deceased to maintain an indigent parent or
sibling would normally give rise to a right to maintenance
that was
enforceable.
[6]
14.
The duty of
support between siblings was considered in
Ex
Parle Pienaar.
[7]
There it was stated that the duty of nearer relatives must be
considered before remoter relatives can be held liable. Nonetheless,
in Roman-Dutch Law a duty of support exists between brothers
(including half-brothers).
[8]
The court thus held in that case that a duty did exist for a sibling
to support his sisters and brothers. As in all cases the degree
or
scope of maintenance is a matter of some difficulty but is usually
payable to an indigent person and in the discretion of the
judge. The
court went on to consider for how long such a duty endures. The
learned judge said as follows:
"The next question
is when does the right to receive these payments cease ... .The duty
of support due by a parent to a child
may involve the duty to afford
the child a university education ... No authority has been quoted to
me which suggests this applies
also as between brothers .....As I
read (the authorities) ...it cannot be the duty of a brother to
support a brother who is physically
and mentally well after the
latter has attained majority ..
15.
The general principle thus would seem to be that a
sibling's duty to support his or her indigent sibling would normally
not endure
beyond the latter attaining the age of majority. However,
the learned judge was at pains to point out that his conclusion to
that
effect in the case before him rested upon his interpretation of
an applicable agreement which had been made an order of court. He
thus left open the question of whether the common law might be
developed in accordance with prevailing
boni
mores
to allow for such a duty to extend
beyond majority. There is no need to canvass that issue further in
the present case as the parties
have agreed on the amount payable in
the event that I find such a duty does exist.
16.
In
Du
Plessis v RAF,
[9]
the
Supreme Court of Appeal ("the SCA") considered the duty of
support between unmarried persons, not legally allowed
to marry, but
who voluntarily assumed an obligation to support each other, thus
giving rise to a contractual obligation. It referred
to
Knop
v Johannesburg City Council
[10]
where
it was said:
"In short,
recognition of a duty of care is the outcome of a value judgment,
that the plaintiff invaded interest is deemed
worthy of legal
protection against negligent interference by conduct of the kind
alleged against the defendant. In the decision
whether or not there
is a duty, many factors interplay; the hand of history, our ideas of
moral and justice, the convenience of
administering the rule and our
social ideas as to whether the loss should fall. Hence the incident
and extent of duties are liable
to adjustment in the light of the
constant shifts and changes in community attitudes"
17.
In
Paxiao
and Another v RAF
[11]
the SCA
considered the duty to support between unmarried heterosexual
couples. It held that the dependant's action exists where
a
contractual duty of support has been established and extended to the
child of the plaintiff who was not the biological child
of the
deceased. The court referred to
Amod
v Multilateral Vehicle Accident Fund
[12]
where
Mahomed CJ stated: - '
"The precise scope
of the dependant's action is unclear from the writings of the old
Roman Dutch jurists. De Groot extends
it to those whom the deceased
was accustomed to aliment ex officio, for example his parents, his
widows, his children ... this
and other passages in De Groot's
writings perhaps support his suggestion that the action was competent
at the instance of any dependant
within his broad family who he in
fact supported whether he was obliged to do so or not but this is
unclear. The same uncertainty
but tendency to extend the dependant's
action to any dependant enjoying a
de facto
close familial
relationship with the breadwinner is also manifest in Voet 9.2.11 who
seeks to accord the dependant's action to the
breadwinner's wife,
children and the like.....
18.
Meteso v
Padongeluksfonds
[13]
concerned
a claim against the Road Accident Fund arising from the death of an
uncle of certain children who he had supported. It
was held that a
binding offer to support the children was sufficient to ground a duty
of support because it was consistent with
the morality of
society
[14]
. In the more
recent decision of
Taljaard
v Road Accident Fund
[15]
the court examined the duty of a biological father who had given his
minor child up for adoption, but nonetheless continued to
maintain
her. The court observed: -
'It seems to me that
these cases demonstrate that the common law has developed to
recognise that a duty of support can arise, in
a given case, from the
fact specific circumstances of a proven relationship from which it is
shown that a binding duty of support
was assumed by one person in
favour of another. Moreover, a culturally imbedded notion of
'family', constituted as being a network
of relationships of
reciprocal nurture and support, informs the common law's appetite to
embrace, as worthy of protection, the
assumption of duties of support
and the reciprocal right to claim support, by persons who are in
relationships akin to that of
a family. This norm is not parochial,
but rather, is likely to be universal; it certainly is consonant both
with norms derived
from the Roman-Dutch tradition ... .and, no less,
from norms derived from African tradition, not least of all, as
exemplified by
the spirit of Ubuntu....
19.
The case law thus leaves no doubt that the courts should
apply the common law duty of support flexibly. The duty has been
extended
to various dependants where support has ceased as a result
of the death of the person bearing the duty by law or
ex
contractu.
There is no doubt that the same
principles apply in the case of siblings.
20.
The minor children in this case should look to their
closest relatives for maintenance. Their father has passed away and
their mother
is indigent. The defendant has settled with the first
plaintiff on the basis of her indigence and dependence on her
deceased son
for support. The only person supporting the minors was
the deceased. He voluntarily assumed the obligation and supported
them during
his lifetime. Accordingly, on the basis of the
authorities cited, I accept that the deceased indeed had a legal duty
to support
the minor children, at least until they attained the age
of majority (both having now done so) and as such they have a valid
claim
against the defendant for that loss of support while they were
minors.
21.
The defendant's case is that no duty of support existed
between the deceased and his minor siblings. For the foregoing
reasons I
reject that submission. It is common cause that the
children were supported by the deceased, that their mother was
indigent and
their father had passed away. Accordingly, and in terms
of the moral convictions of our society, there was a legal duty on
the
deceased to support the children, which duty he had voluntarily
assumed. This support would have continued until such a point that
they attained majority. As the stated in the precedents, it would be
invidious for a court to rule that a sibling had no duty to
support
his siblings when he had voluntarily assumed that obligation and they
had no parents to turn to for that support.
22.
However, the
defendant goes one step further. It maintains that the mother of the
minor children is no longer indigent, as
she had been provided
a settlement amount by the defendant of approximately R490 000 and
the minor children are required to look
to her for their support. The
argument is unsustainable. The children only claim for loss of
support until the age of 18. Thabani
attained the age of majority in
2013 and Gamelihle in 2015. The first plaintiff was awarded her
settlement on 15 February 2016.
Accordingly, for the time period in
which the children were minors, their mother was indigent. The first
plaintiff's claim was
computed by taking into account what the
deceased contributed to her personal maintenance and not the amount
which he contributed
towards the second and third plaintiffs. The
first plaintiff's claim would have been larger had this been
accounted for. The basic
principle of compensation in delictual
actions is to place the plaintiff in the position he/she would have
been had the delict
not occurred. She is entitled to the amount
necessary to place her in the financial position he or she would have
enjoyed has a
delict not been committed
[16]
.
As stated in
Jacobs
V Road Accident Fund,
[17]
the fact that there are other family members in a position to support
a dependant is irrelevant to a dependant's claim against
the one
sibling who was supporting him or her.
23.
As mentioned at the outset, the parties are in agreement
that should the deceased have owed a duty to support the children,
they
should be awarded the amounts of R 115 931, 00 and R 70 015, 00.
24.
The parties agreed that should I find in favour of the
plaintiffs the following order should be made:
i)
The defendant shall pay to the second plaintiff,
care of Swartz Attorneys' trust account, the capital sum of R 70 015,
00 for his
loss of support.
ii)
The defendant shall pay to the third plaintiff,
care of Swartz Attorneys trust account, the capital sum of R 115 931,
00 for her
loss of support.
iii)
All payments referred to in this order are to be
paid to the following banking details:
DENISE
SWARTZ ATTORNEYS
FIRST
NATIONAL BANK LIMITED
BALFOUR
PARK BRANCH
TRUST
ACCOUNT NO: […]
BRANCH
CODE: 212217
iv)
The defendant is ordered to pay the plaintiff s
taxed or agreed party and party costs on the High Court Scale which
shall include
but not be limited to the following: -
a.
The costs of counsel;
b.
The reasonable taxable costs of obtaining the
actuarial reports from the Plaintiff s experts which were furnished
to the defendant
being the report of Ivan Kramer.
c.
The reasonable taxable preparation fees of Ivan
Kramer of whom notice has been given
_________________________
JR
MURPHY
JUDGE
OF THE HIGH COURT
Date
Heard:
24 August 2016
Date
of Judgment:
22 September 2016
For
the Plaintiffs:
Adv T Lipshitz
Instructed
by:
Swartz Attorneys
For
the Defendant:
Adv K Magano
Instructed
by:
Diale Mogashoa Attorneys
[1]
Union Government v Warneke
1911 AD 657
; Union Government v Lee
1928
AD 202
; Paterson v SAR & H
1931 CPD 289
; and Evins v Shield
Insurance 1980 (2) SA 814 (A)
[2]
1938 AD 322
[3]
Oosthuizen v Stanley
1938 AD 322
at 331
[4]
Jacobs v Road Accident Fund 2010 (3) SA 263 (SE) 268 E
[5]
268H -I
[6]
At 268J - 2698
[7]
[1964] 2 ALL SA 62
(T).
[8]
Voet 25.3.8 (Gane's translations Vol 4).
[9]
2004 (1) SA 359 (SCA)
[10]
1995 (2) SA 1
(A) at 27G-I
[11]
2012 (6) 377 (SCA)
[12]
1999 (4) SA 1319
(SCA)
[13]
2001 (3) SA 1142 (T)
[14]
At 11OG- H
[15]
2014 JDR 2078
[16]
Free State Consolidated Gold Mines V Multilateral MVA Fund
1997 (4)
SA 930
(0) at 949
[17]
2010 (3) SA 263
(SE)