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[2016] ZAGPPHC 893
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Mthethwa v Road Accident Fund (48435/2013) [2016] ZAGPPHC 893 (30 September 2016)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
30/9/2016
CASE NO: 48435/2013
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
SHEILA
SIBONGILE
MTHETHWA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
NONYANE,
AJ:
[1]
The plaintiff sues the defendant for loss of support arising from the
death of Joseph Radebe (the deceased) who died in a motor
collision
on 1 March 2009. The plaintiff claims in her personal capacity and in
her representative capacity on behalf of her minor
child who was born
on 15 April 2000.
[2]
In her particulars of claim the plaintiff pleaded that the deceased
had a legal duty to maintain her and the minor child and
fulfilled
that duty. The defendant raised a special plea in respect of the
plaintiff's claim. The special plea is that the plaintiff
has no
locus standi in judicio
in that there was no legal
relationship between the plaintiff and the deceased.
[3]
The plaintiff's claim as pleaded can be defined as a claim for loss
of maintenance or loss of support. It does not confine itself
to a
claim for loss of support founded on a duty of support arising from a
marriage relationship. This is the case that the defendant
was
required to meet on the pleadings. As pleaded, the special plea is
broadly worded and simply states that the plaintiff lacks
standing in
that there was no legal relationship between the plaintiff and the
deceased. The wording of the special plea suggests
that the defendant
understood the basis of the case it had to meet not to be confined to
a legal duty arising out of a marriage
relationship.
[4]
The parties had a pre-trial conference on 20 March 2014. At the pre
trial conference the defendant was required to admit
the plaintiff's
locus standi.
The defendant put the issue of
locus standi
in dispute and requested the plaintiff to provide a marriage
certificate. It is not clear from the minutes whether the marriage
certificate was required in order to prove
locus standi
as
pleaded by the plaintiff or merely to confirm the existence of a
marriage relationship between the plaintiff and the deceased,
which
would only be a factor in consolidating the plaintiff' standing as
pleaded and not necessarily to validate it. The purpose
of a
pre-trial conference is to limit the issues between the parties. It
follows that any issue that is not resolved at the pre-trial
will
stand as defined in the pleadings. Accordingly the pre-trial minute
does not detract from the issues as pleaded or the case
the defendant
had to meet as regards the question of standing.
[5]
At the onset of the trial the issues were separated and the court was
required to determine one issue, namely, whether a valid
customary
marriage was concluded between the plaintiff and the deceased. In the
context of the evidence and the applicable law,
as it will appear in
this judgment, the real issue to be determined in respect of the
plaintiff' standing is whether the deceased
was liable to support the
plaintiff.
[6]
The following evidence was adduced on behalf of the plaintiff.
Testifying in her personal capacity, the plaintiff stated that
the
deceased and the plaintiff had agreed to get married. Following the
agreement the deceased's family sent a delegation to her
family on 2
July 2000 to negotiate her lobola. During the negotiations she was
called upon to confirm that she knew the deceased
and his family,
which she did. She took no further part in the negotiations although
she was aware that the negotiations were about
her lobola. She
testified that on 2 July 2000, as part of the negotiations, the
delegation representing her family in the lobola
negotiations
intermittently consulted with her parents concerning the lobola
negotiations and that such consultations took place
in her presence
within earshot. She stated that the deceased passed away before all
the arrangement concerning the customary marriage
could be finalized
although there had always been an intention to do so.
[7]
She testified that before and after the lobola negotiations the
deceased supported her and her child financially. The deceased
provided them with financial support on a monthly basis without fail.
The plaintiff did not work during the lifetime of the deceased.
She
testified that she was known to the deceased's family and the
deceased's father called her "daughter in law". She
did not
stay with the deceased as the deceased worked very far from home and
only came home over the weekends. She stayed away
from the deceased's
family during the week as the deceased's father allowed her to stay
with them only when the deceased was around.
The plaintiff normally
performed household chores and cooked for the family of the deceased
whenever she stayed with them.
[8]
Mrs Mthethwa who is the plaintiff's mother testified and corroborated
the plaintiff's testimony regarding the lobola in material
respects.
She added that the payment that was received during the lobola
negotiations included a payment of damages for impregnating
her
daughter outside wedlock as well as "imvimba" which was
equivalent to an engagement. A bottle of alcohol was then
handed over
to the deceased's family as a token of acceptance of their proposal
to marry the plaintiff. Mr Mthethwa, the plaintiff's
father,
testified and corroborated his wife's evidence in all material
respects.
[9]
Mr Nyembe testified on behalf of the defendant. He confirmed the
meeting of the 02 July 2000 and the amount paid. As for the
rest of
his evidence he contradicted himself to such an extent that no value
can be placed on it.
[10]
Mr Radebe, the deceased's father, testified and corroborated the
plaintiff's version regarding his refusal to allow her to
stay with
their family when the deceased was not around.
[11]
It is common cause between the parties that the plaintiff's daughter
was born on 15 April 2000; that imvimba and damages were
paid on 2
July 2000. It is was also not placed in dispute that the plaintiff
continued to visit the deceased and his family over
the weekends
whenever the deceased was back from work until his death in March
2009. That is a period of 9 years since the imvimba
was paid despite
Mr Radebe's evidence that the deceased had told him that he did not
intend to marry the plaintiff. It was also
not disputed that imvimba
was equivalent to an engagement. Significantly, Mr Radebe's evidence
was not to the effect that the deceased
did not consider the
plaintiff to be his life partner.
[12]
In support of the special plea the defendant adduced evidence to the
effect that not all the requirements of a valid customary
marriage in
terms of section 3(1) of The Recognition of Customary Marriages Act
120 of 1988 (the Act) had been fulfilled. The requirements
are:
capacity to enter into a customary marriage; consent of the
bridegroom and the bride; consent of the farther (or guardian
of the
bride; payment of lobolo; and the handing over of the bride. It was
further alleged that the customary union had not been
registered. It
was not alleged on behalf of the plaintiff that there was a handing
over of the bride or that the marriage had been
registered in
compliance with the Act.
[13]
Having considered the evidence regarding the alleged customary
marriage, I am satisfied that no customary marriage was concluded
between the plaintiff and the deceased. Our courts have on previous
occasions pronounced on what constitute a valid customary marriage.
See,
Singanga Welsh Mxiki v Victoria Nompume/elo Mbata
High
Court of South Africa Gauteng Division, Pretoria (A844/2012) judgment
deliveredat on 23 October 2014, at para 10.
[14]
I now return to the special plea. The special plea makes no reference
to non-compliance with the Act. The special plea is founded
on the
broad issue that the plaintiff lacks standing in that there is no
legal relationship between the plaintiff and the deceased.
A legal
relationship does not only arise out of marriage or contract. It is a
relationship that arises from circumstances that
give rise to
consequences that are recognized and enforceable by law.
Consequently, the special plea as pleaded does not preclude
a claim
that falls outside the confines of the Act.
[15]
In
Paixao v Road Accident Fund
2012 (6) SA 377
SCA, the
Supreme Court of Appeal stated the following at para [26] "The
object of the remedy in a dependants' action, on the
other hand, is
to place the dependants of the deceased, to whom the deceased owed a
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. The right
of a dependant to sue for this loss arises because the wrongdoer
unlawfully caused the termination of a
legally enforceable duty of
support - it is not a spousal benefit that accrues to a dependant
only by virtue of a formally recognised
marriage." At para [39]
the court stated that "The proper question to ask is whether the
facts establish a legally enforceable
duty of support arising out of
a relationship akin to marriage. Evidence that the parties intended
to marry may be relevant to
determining whether a duty of support
exists, as in this case. But does not mean that there must be an
agreement to marry before
the duty is established. And once a
dependant establishes the duty, the law ought to protect it."
[16]
In my view, the deceased's duty of support, though not elaborately
pleaded, was sufficiently pleaded to alert the defendant
of the case
it had to meet. The evidence led by the parties regarding the alleged
customary marriage adequately ventilated the
relationship that
existed between the plaintiff and the deceased to enable the court to
determine the real issue before it. In
my view, it is proper to
determine the real issue rather than merely decide the issue of a
customary marriage alone as agreed between
the parties. If I were to
do so the plaintiff would be within her rights to seek an amendment
of her particulars of claim in order
to n to have another day in
court.
[17]
I am satisfied that on the evidence before me the relationship
between the plaintiff and the deceased has the characteristics
of a
life partnership or is akin to a marriage.
In
the result, I make the following order:
1.
There was no valid customary marriage concluded
between the plaintiff and the deceased, Mr Joseph Radebe.
2.
The plaintiff has established that the deceased
was under a legal duty to support her and her minor child.
3.
The defendant is ordered to pay the costs
____________________
NONYANE AJ
ACTING
JUDGE OF THE
HIGH
COURT OF SOUTH
AFRICA,
GAUTENG
DIVISION,
PRETORIA
Counsel
for the Plaintiff
:
Adv. W Binase
Instructed
by
:
Chuene Attorneys
Counsel
for the Defendant:
:
Adv. JH Jooste
Instructed
by
:
Mathie Jooma Sabdia Incorporated
Date
of trial
:
28 - 29 October 2015
Date
of Judgement
:
… September 2016