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[2016] ZAGPPHC 1221
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Esterhuizen and Others v Road Accident Fund (26180/2014) [2016] ZAGPPHC 1221; 2017 (4) SA 461 (GP) (6 December 2016)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number: 26180/2014
Reportable
NOT OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
LELANIE
ESTERHUIZEN
FIRST
PLAINTIFF
L
ELANIE ESTERHUIZEN obo PIETER
SCHALK SECOND
PLAINITFF
LELANIE ESTERHUIZEN obo
MARKO THIRD
PLAINTIFF
LELANIE
ESTERHUIZEN obo LINE-LEE LANDMAN
FOURTH
PLAINITFF
AND
ROAD ACCIDENT
FUND DEFENDANT
JUDGMENT
TOLMAY.
J:
[1]
This is a loss of support claim instituted by the First Plaintiff in
her personal capacity and her capacity as the mother and
guardian of
three minor children. At the hearing the First Plaintiffs claim on
behalf of the Fourth Plaintiff was withdrawn as
she is not the
biological child of Pieter Schalk Esterhuizen (the deceased) and
consequently he had no legal duty to support her.
[2]
The deceased, the husband of First Plaintiff and the father of the
Second and Third Plaintiffs died in a collision that occurred
on 5
March 2013. He was a passenger in the vehicle which was driven by the
insured driver. He was the sole breadwinner of the family
[3]
The merits were conceded by the Defendant and the Defendant is liable
for a 100% of the proven damages. All the disputes between
the
parties were settled, but for the contingency to be applied to allow
for the possibility of re-marriage.
[4]
The possibility of remarriage is usually taken into account when a
claim for loss of support is considered in our law
[1]
.
[5]
The actuary applied a 39% deduction as this is the average deduction
for a 35 year old white female with two children.
[2]
More
children will cause a downward adjustment of the applicable
contingency. The Plaintiff is of the view that a 20% contingency
should be applied, while the Defendant argued that the 39%
contingency applied by the actuary, is appropriate under the
circumstances
of the case.
[6]
Ms. Esterhuizen testified that she is 35 years old, has 3 children of
7, 11 and 15 years respectively. She passed grade 11 and
she does not
have any other qualifications. She got married on 16 April 2005, when
she was 24 years old. She worked for 1 year
as a receptionist prior
to her marriage, after getting married she did not work in the formal
sector and was a home-maker. Although
she has applied for jobs since
the death of her husband, she has been unsuccessful. Her level of
education and the fact that she
has not been employed for the last 11
years counts against her. After her husband's demise she moved from
Bethal to Port Elizabeth
to be closer to her family. She stated that
she has no desire to remarry and wants to focus on her children.
[7]
In the past, apart from the number of children and attitude to
marriage, factors like the appearance and personality of the
widow
were taken into account to determine her chances of remarriage. In
Legal
Insurance
Company Ltd v Botes
[3]
the deceased
was 46 years old and his wife 41 years of age. They had one adopted
child, who was aged 12. The Court a
quo
in
this matter assessed the widow's prospects for re-marriage at 25% and
the Court a
quo
arrived
at that by taking
inter
alia
the
following in consideration:
"But
adjustments must be made according to the appearance, personality,
nature and attitude to remarriage of the person concerned,
and indeed
other factors such
as
the
number and ages of the widow's children. Plaintiff is, in my view, in
appearance an average person for
her
age, and is not unattractive.
[4]
[8]
The Court on appeal reduced the Court a
quo's finding
of a 25%
contingency based on the following:
(a)That census statistics are merely a
starting point
(b) The fact that one can't determine
the period which it will take for a widow to remarry, the possibility
of recurrence of widowhood
and the chances of the second marriage
surviving; and
(c) The fact that
the widow was disfigured because of the removal of her right
breast.
[5]
[9]
Some 3 years later in
Snyders
v Groenewald
[6]
the Court
stated in a similar vein as follows:
"In
determining the percentage deduction to be made the Court has regard
to such matters as the
age, Health, appearance and nature of the
widow as well as such other factors as the age and number and
financial dependence of
her children.
[10]
These two cases, as far as it relies on a woman's appearance and
nature reveal a rather out-dated and offensive approach towards
women. To take appearance and nature in consideration is not in
accordance with the constitutional values of dignity and equality
enshrined in our Constitution. In
The
Members of the Executive Council Responsible for the Department of
Road and Public Works, North West Province v Oosthuizen
it
was stated that reliance on appearance is offensive and should not be
part of our law. In that case it was argued that a remarriage
contingency should be struck down as unconstitutional because it
offends against the equality provisions of the Constitution. The
Court however pointed out that no reference was made to the
respondent's appearance, and found that to provide for a remarriage
contingency is not unconstitutional.
[7]
[11]
The Court stated as follows:
(5)
"In South
Africa
the
contingency of remarriage is usually taken into account. If the
purpose of an award for damages for loss of support is borne
in mind
the possibility of the plaintiff remarrying is
a
very real
consideration, the possibility of
a
young widow
remarrying
shortly after the death of her husband and receiving damages for loss
of support calculated over
a
period of 40 years is completely
unrealistic, Allowing for the contingency is obviously realistic. In
Hulley v Cox
1923 AD 234
at 244
the court said:
"The
dependants are entitled to be compensated for the pecuniary loss
involved in
a
reduced
income and
a
restricted
provision for the supply of what they had been accustomed to. But the
object being to compensate them for material loss,
not to improve
their material prospects, it follows that allowance must be made for
such factors as the possibility of remarriage.
In
Peri-Urban
Areas Health Board v Munarin 1965(3) SA 367
(A)
at 3768-D
the court summarised
the position as follows:
'A
widow is therefore entitled to compensation for loss of maintenance
consequent upon the death of her husband, but any pecuniary
benefits,
similarly consequent, must be taken into account. To suggest that she
is obliged to mitigate her damages by finding employment
is to
mistake the nature of her loss. What she has lost is
a
right
-
the right of support.
She
cannot be required to mitigate that loss
by incurring the duty of supporting herself. If she does obtain
employment, it is more
appropriate to regard her earnings as being
the product of her own work than as
a
consequent upon her
husband's death. Marriage prospects are
relevant because marriage would reinstate her right of support. The
propriety of taking
such prospects into account
was
recognised by this Court in
Hulley
v Cox,
1923 AD 234
at 244
and
Botha's
case,
supra,
at pp616-8'
These, and other
judgments, reflect the approach of South African courts to the
question of damages; that they should be fairly
assessed
in the light of the realities of the
case.
(6) These
judgments do not suggest anything other than that the possibility of
remarriage must be taken into account. They do not,
in terms, require
that
a
trial
court
assess
the
likelihood of the plaintiff remarrying on the strength of her
physical appearance. The respondent has not referred to judgments
in
South Africa where this has been stated
as
a
requirement in determining the
possibility of the plaintiff remarrying. If it is the law that this
be done I agree with the respondent
that this would be offensive and
should not be part of the law. But the respondent has not been
so
assessed
in this
case
and this court has not seen her. It
therefore plays no role in the
case.
It
is
a
simple
actuarial contingency."
[12]
In my view the aforementioned approach is both correct and realistic
and in accordance with the values of equality and dignity
enshrined
in our Constitution. It keeps in mind that an award of damages should
be fair and to allow for the possibility of remarriage
is
appropriate, but no reliance should be placed on factors such as
appearance.
[13]
I am of the view that it must also be borne in mind that a second
marriage may not result in financial support. There is the
possibility that the second marriage may not last and that the
financial support, if gained may be lost. The second husband may
also
not be in a financial position to give the necessary financial
support. Consequently the possibility that the remarriage may
not
result in financial support must also be taken into consideration
when the remarriage contingency is determined
[14]
To determine the Plaintiff's prospects of remarriage and the
possibility of financial support is to gaze into the proverbial
crystal ball. I take into consideration all the aspects alluded to in
her evidence. I take note of the fact that the care of the
children
might make it more difficult for her to focus on her own life and
will probably impact on her social life. She is relatively
young, and
I think one can accept that a younger woman might be more inclined to
remarry, not based on appearance or desirability
but rather based on
the fact that one might be more inclined when you are younger to take
another chance at marriage.
[15]
I am of the view that the 20% contingency proposed by the Plaintiff
is too low in the specific circumstances of this case,
but the 39%
proposed by Defendant is too high. I am of the view that a 27%
contingency will be fair under the circumstances.
[16]
Consequently I make the following order:
16.1
A remarriage contingency of 27% is
to be applied and a recalculation of the amount payable to Plaintiff
is to be made; and
16.2
The parties may approach this Court
once the calculations are made for an order to be made.
_______________________
R.G.TOLMAY
JUDGE OF THE HIGH COURT
DATE OF HEARING: 11 NOVEMBER 2016
DATE
OF JUDGMENT: 6 DECEMBER 2016
ATTORNEY
FOR PLAINTIFF: GELDENHUYS INC
ADVOCATE
FOR PLAINTIFF: ADV N C MARITZ
ATTORNEY
FOR DEFENDANT: T M CHAUKE INC
ADVOCATE
FOR DEFENDANT: ADV M N MATHEBULA
[1]
Koch,
Quantum Year book p 79
[2]
Supra p 122
[3]
1963 (1) SA
608
AD at 790C-H
[4]
Supra, p
617 D-G
[5]
Supra
[6]
1966 (3) SA
ED 785
[7]
GNP 2009
JDR 0325