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[2016] ZAGPPHC 1125
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N.G.M and Another v Road Accident Fund (49256/2013) [2016] ZAGPPHC 1125 (8 November 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
8/11/2016
CASE
NO: 49256/2013
In the
matter between:
N. G.
M.
FIRST PLAINTIFF
N. G.
M. obo T.
M.
SECOND PLAINTIFF
AND
ROAD
ACCIDENT
FUND
DEFENDANT
J
U D G M E N T
TWALA
AJ
[1] The
plaintiff sued the defendant in her personal capacity and in her
representative capacity as mother and natural guardian
for her minor
child, T. M. (T.), for damages arising out of a motor vehicle
accident that occurred on the 21 September 2011 in
Benoni wherein the
Late A. M. (M.) died.
[2] The
issue of liability was settled between the parties and
made an order of Court on the 15 June 2015 when
the defendant
conceded that it was 100% liable to pay the plaintiffs' proven
damages.
[3] At
the commencement of the trial of this matter, the damages for the
minor child, T., were settled in the amount of R44 023.00.
[4] What
remained a triable issue between the parties was the quantum of
damages suffered by the plaintiff personally as a result
of the death
of M.. The question that needs to be answered is whether M. had a
duty or legal obligation to support the plaintiff.
[5]
Counsel for the plaintiff brought it to the attention of the Court
that the defendant is raising a new issue in that the duty
to support
the plaintiff by M. was never placed in dispute earlier in this case.
The merits were settled 100% in favour of both
plaintiffs and no such
issue was raised in pre-trial meetings that have been held between
the parties. As a result the plaintiff
should succeed in her claim
based on admissions that have been made in the pre-trial meetings.
There is no application before this
Court to amend or withdraw the
admissions made in the pre-trial meetings.
[6] It is
the defendant's counsel's contention that the concession on the
merits was a confirmation that the accident happened in
the manner as
described. However, the plaintiff still has to prove that M.
supported her and that he was duty bound to do so. The
issue may not
have been raised in the pre-trial meetings but it is pertinent in the
determination of the quantum of damages in
this case.
[7] It is
trite law that a trial is not a game where one party is allowed to
take advantage of the mistakes of the other. The presiding
officer's
position is not merely that of an umpire to see that the rules of the
game are observed by both sides. The presiding
officer is the
administrator of justice, he is not merely a figure head, he has not
only to direct and control the proceedings
according to recognised
rules of procedure but to see that justice is done.
In this
regard,
see
R v HEPWORTH
1928
AD
265
at 277.
[8] I
agree with counsel for the defendant
that, although certain admissions were
made in the
pre-trial meetings held by the parties, the issue of the duty or
obligation to support the plaintiff by M. is pertinent
in this case
and therefore need to be determined by the Court. As stated in the
Hepworth case referred to above, the duty of this
Court is to see to
the administration of justice and that justice is done.
[9] In
the circumstances, I allowed the trial to proceed on the issue of
whether M. has a duty or obligation to support the plaintiff.
[10] The
plaintiff testified that she is unemployed but she
is renting two back rooms in Daveyton, Benoni. She
met M. in 2003 and
a love relationship developed between them as a result whereof a
child, T., was born in 2004. At the time she
has been living with her
parents and M. was also living at his parents' home.
[11] M.
was a taxi driver and his employer was known as Rambo. He started to
maintain her and T. after T. was born in 2004. He has
on many
occasions expressed his love for her and that he wanted to marry her.
In 2010 M. rented a two roomed house and invited
her to come and live
with him. She left T. at her parental home when she joined M. at his
new residence.
[12] M.
continued to maintain her and T. as they lived together and she would
also do the house chores as the wife does for her
husband. She was
working part-time and earning R1 200 per month. M. would buy
her clothes, groceries
and pay for her
medical expenses including that of T.. She knew that M. had a
wife and children.
[13]
Under cross examination she testified that M. informed her that he
was earning R750 per week. She would use her money to augment
groceries should they be running short during the course of the
month. At the beginning of the relationship she knew that she was
a
girlfriend of M. but he told her that his relationship with his wife
became sour - hence he promised to marry her. He said this
on
numerous occasions. She conceded that she was employed by her sister
to look after her children and earns R1 000 per month.
She testified
that she cannot survive with her salary alone since she used to live
with M. who was looking after her. She has a
cash shortfall every
month. M. maintained and supported her and her child, T..
[14] The
plaintiff then closed its case. The defendant did not have any
witnesses to call and therefore closed its case as
well.
[15] The
plaintiff gave her evidence clearly, unambiguous and did
not change under cross examination. There is
only one version
before this Court and that is the version of the plaintiff. I am
satisfied with the evidence of the plaintiff
and accept it as the
truth.
[16]
Society still has some reservations about people living together as
husband and wife without going through the formalities
of marriage.
It is easily accepted by society and the law that the existence of a
marriage relationship between two people brings
into existence the
obligation or duty to support upon the parties. However, in the
changing circumstances of today, it is not uncommon
for a couple to
live together as man and wife without concluding or committing to a
marriage relationship. It therefore, cannot
be said that the
obligation and duty to support only arises or comes into extent when
a marriage is concluded or if the claimant
is a member of the family
or is a dependant of the deceased.
[17] The
plaintiff testified that M. has on numerous occasions intimated that
he will marry her. It is further the uncontested evidence
of the
plaintiff that M. would give her money to buy household goods and she
would do the house chores like a wife does for her
husband. She would
augment groceries with her own money should the need arise during the
course of the month. However, this on
its own does not attract any
legal obligation to marry on the part of M.. What needs to be
considered is whether or not the nature
of the relationship between
the plaintiff and M. gave rise to a reciprocal duty of support.
[18] I
disagree with Counsel for the defendant that the relationship
between the plaintiff and M. was akin to that of a husband
who was
cheating on his wife. The undisputed evidence before this Court is
that the plaintiff met M. in 2003, a child was born
in 2004 between
them and they moved in to live together in 2010. They lived together
as husband and wife until the M. met his untimely
death in September
2011. There is no evidence to dispute this version of the plaintiff.
It is purely speculation on the part of
the defendant to suggest
otherwise.
[19] In
the case of
MARIA
ANGELINA
PAIXAO
&
ANOTHER
v
ROAD ACCIDENT FUND
(640/2011)
[2012]
ZASCA
130
(26
SEPTEMBER
2012),
the Supreme Court of Appeal stated the following:
"
The difficulty
I have
with the
defendant's
submission
is
that extending the
protection
of
the
dependants'
action
only
to permanent heterosexual
relationships
where there
is
agreement
to marry requires
us
to
draw
an
arbitrary
line
between
those
relationships
and
most
others
where
there
is
no
such
agreement. 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
it
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."
[20] The
Supreme Court of Appeal continued in the
case of
Paixao
to state the following:
"By
coming to the above conclusion I do not intend to demean the value or
importance that our society places on marriage
as
an institution
as
the high court feared. On the contrary, I
am
extending the protection afforded to the dependants of
the deceased precisely because the nature of their
relationship
is
similar
to
a
family
relationship
arising
from
a
legally
recognised
marriage.
I
therefore hold that
the
dependants'
action
is
to
be
extended to
unmarried persons
in
heterosexual
relationships who
have
established
a
contractual
reciprocal duty
of
support."
[21] In
my view, the evidence before this Court demonstrates that the
relationship between the plaintiff and M. is similar to that
of a
family relationship arising from a legally recognised marriage.
Plaintiff's uncontested evidence is that M. would give her
money to
buy groceries and should they run short of groceries during the
course of the month, she would use her money to augment
the
groceries. That in my view establishes a tacit reciprocal duty to
support between the parties.
[22] In
its particulars of claim to the summons, the plaintiffs
claimed a global amount of R385 000 for
both. However, after
having settled the claim for T. and having lead the evidence of the
plaintiff, the plaintiff secured an
actuarial calculation
for the loss of support she has suffered as a result of the death of
M.. I had the privilege to peruse
the actuarial report and have come
to the conclusion that the figure of R90 000 as proven damages for
the plaintiff is reasonable
and justified in circumstances of this
case.
[23] I am
not persuaded by the argument of the plaintiffs' counsel that the
Court should mulct the defendant with a punitive costs
order due to
the manner in which the defendant handled this matter.
[24] The
plaintiffs initially claimed an exorbitant sum of R385 000 and the
final amount of proven damages is a sum of R134 023
which is less
than half the amount initially claimed. In my view, the defendant was
not dilatory in its handling of this matter.
There was no deliberate
intent on the part of the defendant to delay the finalisation of this
matter.
[25] In
the circumstances, I make the following order:
A.
The defendant is liable to pay the plaintiffs a sum of
R134 023.00 within fourteen (14) days from the date of this order;
B.
Interest on the sum of R134 023 calculated at the applicable rate
from the date of summons to date of payment.
C. Costs
of suite including the costs of the attended experts.
__________________________
TWALA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
Counsel
for the PLAINTIFFS:
ADV. P
LOURENS
Instructed
by:
SPRUYT
I
NCORPORATED
T
EL: 012 430 7871
Counsel
for the DEFENDANT:
ADV. M
A
MAHOLO
Instructed
by:
NINGIZA HORNER INC
TEL: 012 326 5439
Date of
Hearing:
1
9 SEPTEMBER 2016
Date of
Judgment:
08 NOVEMBER 2016