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[2015] ZAGPPHC 446
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Mtetwa v Road Accident Fund (70650/2013) [2015] ZAGPPHC 446 (3 July 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
Case
Number: 70650/2013
DATE:
03 JULY 2015
In
the matter between:
MTETWA
NOMVULA
MAGGY
........................................................................................
PLAINTIFF
And
THE
ROAD ACCIDENT
FUND
.....................................................................................
DEFENDANT
JUDGMENT
LEPHOKO
AJ
11]
The plaintiff sues the defendant for damages for loss of support
resulting from the death of her daughter in a motor vehicle
collision
that occurred on 25 June 2005.
[2]
The defendant conceded 100% of the merits concerning the
accident. The only issue in dispute is whether the plaintiff suffered
any
loss of support as a result of the death of her daughter,
Nomalizwe Florence Lekane.
[3]
The plaintiff testified that she was born in 1946 and is
69 years old. She is the biological mother of the deceased. At the
time
of the deceased's death the deceased was employed as a social
worker and earning a salary. The plaintiff lived together with her
husband, the deceased and the deceased's two minor daughters. The
plaintiff and her husband received a state pension at the time.
Around 2006 her pension was around R800-00 and her current pension is
R1 300-00. Her husband who passed away in 2006 abused alcohol
and
made no contribution towards the support of the plaintiff. She was
not certain of the amount of pension she received at the
time, she
could barely survive with whatever pension she received.
[4]
The deceased supported her and the deceased's two minor
daughters. She supported her for about two years before she passed
away.
She bought food for the household and gave the plaintiff
amounts ranging between R500-00 and R1000-00 per month. The plaintiff
used the money for her personal needs including medical expenses. She
uses her current pension to, among others, pay for rates and
taxes,
food, funeral insurance, school fees and transport for her
grandchildren as well as to support her unemployed sickly elder
child. The current pension is too little and after paying the
foregoing expenses she sometimes has no money to buy bread. For the
past nine years she survives by supplementing her pension by
regularly borrowing money from micro lenders at onerous interest.
She
now receives an additional income of R450- 00 per month from rental
income. She also receives some social grant money of about
R85-00 for
one of the grandchildren. Since her daughter passed away she cannot
afford medical expenses, clothing and other necessary
expenses.
[5]
She testified that according to African tradition or
indigenous custom working children are expected and obliged to
support their
needy parents and needy members of their extended
family. The deceased was expected to support her needy parents as
they had raised
her. She stated that when she was employed she used
to support her parents as well.
[6]
Under cross examination it transpired from the employer
certificate that the deceased had left her formal employment as a
social
worker on 31 January 2005 whilst she passed away on 30 June
2005 after the accident on 25 June 2005. It was contended by the
defendant
that as the deceased was not working at the time of her
death she would have had no income from which she could have
supported
the plaintiff. The plaintiff stated that in so far as she
was concerned the deceased was employed at the time of her death as
she
had continuously provided her with the same level of support
until her death. It was then contended by the defendant that the
probabilities
were that the deceased was unemployed as her source of
income was unknown.
[7]
The plaintiff was an honest witness who did not appear to
exaggerate her plight and personal circumstances or attempt to
mislead
the court. If it were so she could have easily invented a
source of income for her daughter. I am satisfied that there is no
basis
for the court to reject the plaintiff's evidence.
[8]
The plaintiff's granddaughter, Mankube Lekane, was called
as a witness. She corroborated the plaintiff's version in material
respects.
The defendant did not call any witnesses to challenge the
evidence presented by the plaintiff.
[9]
In
order to succeed with her claim for loss of support the plaintiff
must establish that she is indigent and that as at the time
of the
deceased's death, the deceased was under a duty to support her. The
three prerequisites of a legal duty of support are a
relationship;
need on the part of the person to be supported; and adequate
resources on the part of the person who is called upon
to provide
support.
[1]
[10]
In
Smith v Mutual & Federal Insurance Co. Ltd
[2]
the court set the test for indigency as follows: 'To be indigent
means to be in extreme need or want whereas to be poor means having
few things or nothing. Accordingly, when the plaintiff pleads
indigence, it is not sufficient to show that the plaintiff lives
on
very little or nothing (vide World Book Dictionary). The plaintiff
must prove something more. The plaintiff should prove that
there is
an extreme need or want for the basic necessities of life"
[11]
In
my view there is no appreciable difference between being in extreme
need or want and having few things or nothing. Either situation
represents a genuine need for the restoration of human dignity.
Whatever the definition, whether a need for support exists will
depend on the facts and circumstances of each case, in particular the
lack of the necessities of life.
[3]
[12]
The
approach of the court in Wigham v British Traders Insurance Company
Ltd
[4]
is to be preferred. In Wigham the court stated that: "I think
the authorities furthermore make it clear that in order to succeed
a
plaintiff is not required to show that she would be reduced to abject
poverty or starvation and be a fit candidate for admission
to a poor
house unless she received the contribution. The Court must have
regard to her status in life, to what she has been used
to in the
past and the comforts, conveniences and advantages to which she has
been
accustomed.....
The aim and object is to place the dependants in as good a position
as regards
maintenance
as they would have been if the deceased had not been killed, to which
end material losses as well as benefits and other
prospects must be
considered."
[5]
[13]
The undisputed evidence of the plaintiff paints a picture
of indigence. The question that remains to be answered is whether the
deceased had a duty to support her indigent mother.
[14]
The liability of children to support their parents, if
these are indigent (inopes), is beyond
question;.....
Support (alimenta) includes not only food and clothing in accordance
with the
quality
and condition of the persons to be supported, but also lodging and
care in sickness.
[6]
In African law it is most certainly an actionable wrong on the part
of the child who is financially able, not to provide support
to his
needy and deserving parents. Quite apart from it being an actionable
wrong, failure to maintain one's parents by a child
who is
financially able to do so, is, in black traditional law contrary to
the public policy (contra bonos mores)
[7]
[15]
The plaintiff submitted an actuarial report on which the
calculation of the plaintiff's loss of income is based, updated to 18
June
2015. The actuary based his assumptions on the income that the
deceased earned in her last employment, i.e. as a social worker on
31
January 2005. It is common cause that the deceased's source of income
as at the time of her death could not be ascertained.
The deceased
died six months after her last known formal employment. The evidence
is that the deceased continued to support the
plaintiff to the same
standard notwithstanding that her source of income was unknown. For
this reason the court is willing to accept
the actuarial calculations
as a useful guide of the plaintiff's loss of income.
[16]
The deceased was 37 years at the time of her death and was
a social worker by profession. Even if the court was to accept that
she
may have been unemployed at the time of her death, given her age
and previous work experience, the probabilities are that she would
have been able to obtain alternative employment in due course and
been able to resumed the support of her mother. In essence, the
death
resulted in the deceased's loss of earning capacity. It is that loss
of earning capacity which in turn led to the plaintiff's
loss of
support.
[17]
The actuarial report estimates the accrued loss of income
at R145 492-00 and the prospective loss of income at R128 782-00. The
total loss of income is estimated at R254 121
-
0.
In terms of the report contingency deductions are applied
at 5% in respect of the accrued loss of income and at 10% in respect
of
the prospective loss of income.
[18]
Contingencies
are the normal consequences and circumstances of life, which beset
every human being and which directly affect the
amount that a
plaintiff would have earned.
[8]
According to Koch when assessing damages for loss of earnings or
support it is usual for a deduction to be made for general
contingencies
for which no explicit allowance has been
made
in the actuarial calculation......... The deduction is in the
prerogative of the court. General
contingencies
cover a wide range of considerations which may vary from case to case
and may include early death, loss of employment,
promotion prospects,
and divorce. He states that the following are some of the guidelines
as regards general contingencies: "Normal
contingencies" as
deductions of 5% for past loss and 15% for future loss; Sliding
scale: Vz% per year to retirement age, i.e.
25% for a child, 20% for
a youth and 10% in middle age.
[9]
[19]
Counsel for the defendant suggested that a higher
contingency of 20% should be applied in respect of the future loss of
income in
view of the uncertainty of the deceased's source of income
as at the time of her death. I am not persuaded that this provides
sufficient
justification for departure from the application of the
normal contingency deductions. The purpose of the deduction is to
arrive
at the most appropriate estimate of a plaintiffs loss whilst
ensuring that the award is fair and equitable to both parties. In the
circumstances of this case I find a contingency deduction of 15% in
respect of the future loss to be appropriate. Accordingly the
future
loss of income is estimated at R109 465-00. In the result the
plaintiff's total loss of income is estimated at R247 682-00
[20]
The particulars of claim and the plaintiff's affidavit
stated the date of the accident as 25 June 2006 and the date of the
deceased's
death as 30 June 2006 instead of 25 June 2005 and 30 June
2005 respectively. The plaintiff testified that the accident and the
death had occurred in 2006. The parties agreed to an amendment of the
particulars of claim to reflect the correct dates as these
dates were
common cause between the parties. It was also accepted by both
parties that the plaintiffs reference to June 2006 was
a bona fide
mistake.
[21]
I am of the view that the plaintiff has discharged the
onus placed on her as regards her claim for loss of support.
Consequently
her claim succeeds.
ORDER:
1.
The plaintiff's particulars of claim are amended to
reflect the date of the accident as 25 June 2005 and the date of
death of Nomalizwe
Florence Lekane as 30 June 2005.
2.
The defendant shall pay to the plaintiff the amount of
R247 682-00.
3.
The defendant shall pay the plaintiff's agreed or taxed
costs as between party and party on the High Court Scale, which costs
shall
include the costs of the actuarial calculations and revised
calculations.
4.
The plaintiff shall, in the event that costs are not
agreed, serve the notice of taxation on the defendant's attorneys of
record.
5.
Such agreed or taxed costs shall become payable 14
(fourteen) court days after such agreement or taxation.
6.
The payments referred to in paragraphs 2 and 3 above shall
be made into the plaintiff's attorneys trust banking account, the
details
of which are as follows:
Account
holder: Lundell & Hassan - Lundell (Trust Account).
Account
Number: 01………………….
Bank:
ABSA.
Branch:
Von Wielligh Street.
Branch
Code: 5…………………….
Account
type: Current.
LEPHOKO AJ
(ACTING
JUfSCTOF THE HIGH COURT)
Heard
on: 18 June 2015.
Judgment
delivered on: 03 July 2015
For
the Plaintiff: Adv. C De Agrella
Instructed
by: Lundell & Hassan-Lundell Attorneys.
For
the Defendant: Adv. M M Kgwale Instructed by: Rambevha Morobane
Attorneys.
[1]
Schafer: Family Law Service, Chapter C: Maintenance at 1.
[2]
1998
(4) SA 626
(C) at 632D-E.
[3]
Oosthuizen vStanely
1938 AD 322
at 327-328.
[4]
1963 (3) SA151 (W).
[5]
Wigham v British Traders Insurance Company Ltd (supra) at 153H-154A;
see also Oosthuizen v Stanely
1938 AD 322
at 327-328.
[6]
Oosthuizen v Stanely (supra).
[7]
Fosi v Road Accident Fund
[2007] ZAWCHC 8
;
2008 (3) SA 560
(CPD) at para
[17]
[8]
Southern Insurance v Bailey 1984 (1) SA 98 (A).
[9]
The Quantum Yearbook, Robert Koch, 2015 at 120.