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[2015] ZAGPPHC 517
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Osman v Road Accident Fund (16780/13) [2015] ZAGPPHC 517; 2015 (6) SA 74 (GP) (3 July 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 16780/13
DATE:
03 JULY 2015
In
the matter between
MUMTAZ
OSMAN
.....................................................................................................................
Plaintiff
A
nd
ROAD
ACCIDENT
FUND
......................................................................................................
Defendant
Ismail
J:
[1]
The plaintiff seeks damages arising out of a motor collision where
her son was fatally injured. The plaintiffs claim is based
on the
notion of indigent’s in that she alleges that her son supported
her during his lifetime.
[2]
The motor vehicle collision took occurred on the 12 April 2008. The
plaintiff’s son was driving a motor vehicle with registration
numbers [FB……….. GP] and a motor bike with
registration number [D……….P] collided near
Lydenburg.
[3]
The plaintiff avers that the collision was caused solely by the
negligent driving of the insured driver.
[4]
The plaintiff’s son at the time of the collision was 28 years
old. He was married and he resided in the same house as
his mother,
the plaintiff.
[5]
The deceased was employed at the time of the collision at Standard
Bank of South Africa, and he earned a monthly salary of R7
837. 00. A
certificate relating to his salary was attached to the notices bundle
[6]
During the trial before me the plaintiff, Mrs Mumtaz Osman, and her
daughter Mrs Mehtar also gave evidence.
[7]
In brief, the evidence of the plaintiff was that she never worked in
her life. Initially her husband supported her. Her husband
is
separated from her and he lives with his sisters. He does not support
her at all. Her son during his life time would on a monthly
basis
give her his credit card to utilise for whatever expenses she needed.
She would purchase items such as food and other household
provisions
she needed with the card.
[8]
Mrs Osman estimated that he she would utilised the credit card on
average in an amount of R2 500,00 per month for herself.
[9]
Mrs Mehtar’s evidence was that she and her brother assisted
their mother, however she is no longer employed and the sole
responsibility of supporting their mother fell on her late brother.
[10]
During cross examination Mrs Osman stated that since her son’s
death the bond repayment has not been paid timeously and
the bank
threatened
to foreclosure on the property. The bond repayment amounted to R4
500,00 per month. She does not receive a pension and
her father and
brother assisted her from time to time.
[11]
This in summary form was the evidence presented during the trial.
[12]
The matter was postponed in order for the plaintiff to obtain an
actuarial report.
[13]
When the matter resumed, Mr Ryan Immermann, an actuary in the employ
of Gerald Jacobson actuaries, testified. He handed in
a report, the
contents of which he confirmed as being correct. In this report Mr
Immermann calculated the past and future loss
of Mrs Osman to be
R
680 302.00. Working on a past contingency of 5% and a future
contingency of 20%.
He
testified that usually in matters of this nature where there is a
claim for loss of support the formula used is 2 parts for the
deceased ; 2 parts for the spouse and 1 part for each child.
He
stated that he was told by the instructing attorney that the deceased
was not married.
[14]
During cross examination he was informed that the deceased was
married and he was asked whether that would have made a difference
to
his findings regarding the amount for loss of support towards the
palintiff. He stated that he would then have to re-calculate
the
figures based on that fact.
[15]
Notwithstanding Mr Immellmann testifying that the figures had to be
recalculated , plaintiff’s counsel failed to request
him to do
so. The figures were therefore not recalculated in the light of the
deceased being married..
[16]
Mr Prinsloo, on behalf of the plaintiff submitted that Mrs Osman was
indigent and that the deceased owed a duty of support
to maintain his
mother which he did during his lifetime. He accordingly sought an
order in terms of the actuaries findings.
Mr
Binase, on the other hand, submitted that the plaintiff failed to
make out a case that she was indigent and that the case should
accordingly fall and be dismissed with costs. He also submitted that
the basis on which the actuarial calculation was done was
not on a
precise amount which the plaintiff received but rather on an estimate
and in addition on the premise that the deceased
was a single man and
not married.
The
Law relating to indigency
[17]
In
Oosthuizen v Stanley
[1]
Tindall JA stated:
“
There
is no doubt on the authorities which are quoted in Waterson v
Mayberry,
1934 TPD 210
, that the plaintiff had to prove not only that
either Stephanus or Elsie contributed to his support but that there
was a legal
duty to contribute because his circumstances were such as
that he needed the contribution. The liability of children to
support
their parents, if they are indigent (imopes), is beyond question; see
Voet.................
Whether
a parent is in such a state of comparative indigency or destitution
that a Court of law can compel a child to supplement
the parent’s
income is a question of fact depending upon the circumstances of each
case...”
[18]
Dlodlo
J in the matter of Fosi v Road Accident Fund and another
[2]
at par [13] succinctly described this duty as follow:
“
Simplistically
put the deciding principle seems to be whether the parent can prove
that he or she was dependent on the child’s
contribution for
the necessities of life. Indeed what constitutes necessities of life
will in turn depend upon the individual parent’s
station in
life. “
[19]
In the
Fosi matter, supra, the judge at great length discussed the duty to
support under African Customary Law from para [16] -[23]
of the
judgment.
He concluded that the Constitution prescribed that the Courts should
embrace customary law
[3]
.
[20]
This aspect was not argued before me, however I take it upon myself
in the interest of justice and fairness to venture into
this domain,
by extending the common law.
There
can be no doubt that in certain cultures such as Muslim or Hindu
cultures , amongst others, there is an similar duty upon
children to
support their parents as Dlodlo J so eloquently related in the Fosi’s
matter.
[21]
In these communities the family is not restricted to the nuclear
family but rather to the extended family. It is not uncommon
for
grand -parents or even an aunt who is single to live with the family.
The deceased lived with his mother and wife in the same
home. The
plaintiffs evidence was that she never worked at all. It is clear
that she was dependent upon him to the same extent
as a child, had
there been one. In these societies there are hardly any old age homes
or places where old people can retire. This
is not not because these
communities can’t afford to build such institutions but rather
because the societal mores scorns
upon children who do not take care
of their aged parents.
[22]
Community
is defined as a “readily available, mutual supportive network
of relationships on which one could depend”
[4]
Community comes from a sense of sharing an emotional bond of “
being in this together”, often a sense of trusting and
caring.
[5]
[23]
The
submission made by counsel for the defendant that the plaintiff must
have some money stashed away. This it was submitted does
not satisfy
the test for being indigent since the bond repayments are being met
for the past 6 years since the deceased death.
In my view does not
detract from the de facto situation that the deceased supported his
mother. The plaintiff stated that she is
often assisted by her father
and her brother’s for assistance. They may have contributed
towards the bond. Mrs Mehtar testified
that she went on several
occasion to her father and fought with him to pay. See Khan and
Another v Padayachy
[6]
[24]
As in African culture and tradition there is a moral and social duty
in Muslim and Hindu cultures as well, which are family
orientated in
the sense of the extended family to look after one’s elders.
Elderly parents often reside with one or other
child who supports
them and caters for their
wellbeing.
Old age homes are almost non-existent in these cultures. The social
mores of such societies dictate that parents and
the elderly are
cared for and where this is not done there is a social stigma
associated with it.
[22]
I am accordingly of the view that the plaintiff was dependent on the
support from the deceased.
[23]
The problem which arises, however is that Mr Immermann conceded that
the report ought to have been recalculated. He suggested
the 2
portion for the deceased; 2 portions for the spouse and 1 portion for
child ratio. Working on that formulae I would therefore
work on a one
fifth ratio to arrive at a figure.
[24]
He calculated the total loss as R680 302, 00. One fifth of that
amount therefore equals R136 060.40.
[25]
Usually the question of cost would follow the result. On the 23 June
2015 Mr Prinsloo was not at court. He was contacted by
my registrar
as a result he attended court. He requested that the matter stand
down till 2 pm. This unfortunate situation arose
despite my registrar
having sent an e-mail to him and Mr Binase informing them to choose a
date during the week of 22 to 26 June
2015 for the finalization of
the matter.
[26]
In the light of the greater part of the day having been wasted for
the reason referred to above I believe that it would not
be just to
and appropriate to mulct the plaintiff and/or the defendant with
counsels costs for the day. Therefore, I am of the
view that costs
should only cover Mr Prinsloo’s fee for the appearance on the
29 April 2015 and that he is not entitled to
costs for the 23 June
2015.
[27]
The order of this court is that:
(1) the defendant
should pay the plaintiff an amount of R136 060,40 as damages
(2)
to pay the plaintiff’s costs save as indicated in par [29]
above.
Ismail J Judge of
the High Court
APPEARA CNCES:
For
the Plaintiff: Adv J M Prinsloo instructed by Mr C Coetzee
Attorneys
Pretoria.
For
the Defendant: Adv Binase instructed by Tsebane Molaba
Incorporated
, Pretoria.
Date
of hearing: 29 April 2015 and 23 June 2015
Date
of Judgment: 03 July 2015.
2
Under case number 1934/2005 delivered in the Eastern Circuit Local
division at George at par [13]
[1]
1938 AD at 327-328
See
also Smith v Mutual & Federal Insurance Co Ltd
1998 (4) SA 626
(
C) at 629H-I.
[3]
Section 211 (3) of the Constitution of the Republic of South Africa
, Act 108 of 1996
[4]
Community psychology: Linking individuals and communities" By
Dalton, Elias and Wandersman p 190
[5]
Ibid p 187
[6]
1971
(3) SA 877
(W)