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[2015] ZAGPPHC 708
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Z.M.M v Road Accident Fund (35933/12) [2015] ZAGPPHC 708 (20 August 2015)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 35933/12
In
the matter between:
Z.
M. M.
PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
MALULEKE
AJ
1.
In
this case the Plaintiff instituted a claim for damages against the
Defendant following the death of her late husband S. P. M..
It
is common cause between the parties that an accident occurred on 6
November 2009 at or near the R104 public road near Riama
Park,
Bronkhorstspruit between a motor vehicle driven by Carel Lebo Tholo,
bearing Registration number [.....], a motor vehicle
bearing
Registration number [.....], driven by one Mapanyela Klaas and a
vehicle bearing Registration number [.....] driven by
the deceased.
It is further common cause that the deceased died as a result of the
injuries he suffered in at motor vehicle
accident.
2.
For
fear of making this judgment unnecessarily long I have decided not to
regurgitate the facts which appear to be common cause
between the
parties in this matter. Suffice it to say that at commence of these
proceedings I was informed by Counsel for the Plaintiff
that three
different claims were instituted in this Division against the
Defendant for loss of support resulting from the death
of S. P. M.
(“the deceased”) under three different case numbers. For
the sake of convenience these are the claim of
the Plaintiff under
the present case number, the second claim was instituted by the
deceased’s son Z. C. M. under case number
63789/13 and the
third claim was instituted on behalf of one minor child N. G. M.
under case number 63790/13 who is the grandchild
of the deceased.
I was reliably informed that during March 2014 the three matters were
set down for hearing in respect of
the merits; and that although the
matters were heard together they were never consolidated into one. It
appears that my sister
the Honourable Justice Jansen, then made an
order on the merits in respect of all three claims. She ordered
that the Plaintiffs
are entitled to 100% of all damages that they can
prove against the Defendant and to which they are entitled in terms
of the
Road Accident Fund, Act 56 of 1996
read with the Constitution;
and that the Defendant is to pay the costs of the hearing related to
the merits of the action dealing
with negligence. Accordingly
there exist no dispute between the Plaintiffs and the Defendant in
respect of the merits of
all three cases.
3.
The
bone of contention between the parties therefore remains the question
of the quantum of damages claimed by the respective Plaintiffs
in the
matters referred to above. Before I could make any finding with
respect to the issue of quantum, I am required to decide
whether the
deceased had a legally enforceable duty to financially support N. G.
M. (“Gift”). This is based on the
allegation that during
his life the deceased financially supported his grandchild, Gift who
has now lost the said support as a
result of the death of the
deceased. It was never alleged that Gift was at any stage adopted by
the deceased and/or his surviving
spouse who is also the Plaintiffs
in the present matter. The Defendant contends that the deceased
voluntarily supported Gift. That
there was no legal duty on the part
of the deceased to financially support Gift and that the Fund was as
a result not liable to
compensate Gift for loss of support. This was
on the basis that although Gift’s biological father had passed
on, his mother
was still alive and employed and therefore bore the
duty to legally support him.
4.
In
order to decide this issue I am required to have regard to the
evidence which was presented to this Court. The Plaintiff, Z.
M. M.
(“Zodwa”), who is the surviving spouse of the
deceased was called as a witness to give evidence in this
regard. She
testified that she was married to the deceased who died on 6 November
2009 as alleged in her Particulars of Claim,
that two children were
born of her marriage to the deceased namely, N. C. M. (“N.”)
and Z. N. C. M. (“C.”).
She further testified that
the deceased supported her and their son C. and that as a result of
the deceased’s death she and
C. lost the said financial
support. She confirmed that a loss of support claim was made on
behalf of Gift against the Defendant
on the basis that the deceased
supported Gift financially. She told the Court that Gift was
her first grandchild and that
N. was Gift’s mother and that one
Titus Masango (“Titus”) who is now deceased, was the
father of Gift. She testified
that Gift was born on the [.....] and
that he was five years old when the deceased died. It was her
testimony further that
Gift’s father, Titus Masango, died when
Gift was two and a half years old. She told the Court that she, her
late husband,
their son C. as well as N. their daughter, lived
together. She testified that from his date of birth, Gift and his
mother N., stayed
with her and the deceased. She informed the court
that Gift’s father Titus Masango lived in Pretoria and that she
did not
know exactly where he resided. She testified that Titus
occasionally visited but that he did not look after Gift and that
the
deceased was always financially responsible for him. She also
testified that her daughter, N., received no financial support
from
Titus either. She testified that N. was employed as a casual worker
working twice a week at Fashion World and that she did
not earn
enough money that is why the deceased continued to financially
support Gift. It was her evidence that she was employed
at PEP
Stores since 1982 up to the time when Gift was born and that she
continues to be so employed. She also testified that
N. got a
job at PEP Home during August 2009 in Nelspruit where she later
relocated to in order to be closer to her place of work.
She
confirmed that when N. relocated to Neslpruit Gift remained with them
(i.e. Z.and the deceased) with the latter still supporting
Gift
financially. She told the Court that her daughter N. had another
child who is now seven years old by the name of Khethelo
and that
this child was born before the deceased’s death. She testified
that the father of the said child was one Doctor
who was in Nelspruit
together with N.. She said that N., her daughter, used her wages to
look after Khethelo and that Doctor never
supported Gift as Gift was
not his child. She told the court that the relationship between
N. and Doctor did not work out
and as a result N. had returned home
in Bronkhorstspruit together with her other child, Khethelo to join
Gift and Zodwa. It was
her testimony that N. is now working at PEP in
Bronkhorstspruit and that N., Zinhle, Gift, Khethelo and herself are
staying together
in Bronkhorstspruit. She told the Court that N. was
earning around R3,500.00 per month. She testified that she was
financially
supporting Gift and that N. was with her assistance
supporting Khethelo who was not receiving maintenance from his father
Doctor.
During cross examination she told the Court that she
did not know how Titus died and that Titus’ parents informed
her that
he was sick. When asked to give examples of how the
deceased supported Gift, she mentioned that from the moment when of
Gift
was born he supported her financially with regard to fees
related to his medical requirements, food, crèche, pre-school
and the like. She testified that she knows that Doctor is not
supporting Khethelo because N. told her so as they discuss these
matters as mother
and daughter. It was put to her that in the
assessment report of the expert N. stated that Doctor supported
Khethelo financially
to which she responded that she did not know.
She was also asked what portion of her salary went to support Gift
and she
requested the Court to break it down as follows:
School
fees R500.00 per month, transport to and from school R250.00 per
month, lunch box R500.00 per month and that she bought school
uniform
for Gift twice a year, during winter and summer and that it cost her
R600.00 to buy the summer school uniform and about
R800.00 to
buy winter uniform because of items like jersey, jacket and scarf.
She also testified that
N. does not contribute anything towards Gift
because she is supporting Khethelo. She testified that she was
standing by her
earlier statement that Doctor does not support
Khethelo even though the assessment report of the industrial
psychologist stated
that N. said that Doctor was financially
supporting Khethelo.
5.
Counsel
for the Plaintiff contended that Zodwa’s financial support
and/or Doctor’s financial support to Khethelo was
irrelevant
for purposes of the decision that this Court needed to make. He
contended that Khethelo was not a Plaintiff before this
court and
requested the Court to make a finding that the deceased supported
Gift. He contended that should be so because no evidence
which
disputed this fact was put before the Court. He submitted that the
Plaintiff testified that the mother of Gift, N. did not
support the
child financially and that his father, Titus had passed away and as
such could not support the minor child financially.
Counsel
referred me to case law in support of his contention that the
deceased had a legally enforceable duty to financially support
the
minor child (See
J
T v RAF 2015 (1) A 609 (GJ
).
It was his submission that on the facts supported by case law Gift
has an unassailable case for loss of support resulting
from the death
of the deceased.
6.
However
it was contended by Counsel for the Defendant that cases to which
Counsel for the Plaintiff referred this Court were distinguishable
in
that either the parent or the uncle of the person claiming loss of
support were deceased or had deserted the minor child in
question. He
argued that in the present case Gift’s mother is alive and is
permanently employed since the death of the deceased
and that for the
loss of support claim of Gift to succeed there must be a legal duty
to support him by the deceased and that on
the facts the deceased was
not under a legally enforceable duty to do so. He equally referred me
to case law in support of his
argument and concluded by saying that
there was a duty on Gift’s mother, N., to support the child
unless she was unable to
do so and that on the basis of N.’s
evidence as contained in the assessment report that Khethelo was
supported by Doctor,
N. should be able to support Gift (See
Evans
v Shield Insurance Co Ltd 1980 (2) A 814 (AD)
;
Santam
Beperk v Henery
[1999] ZASCA 5
;
1999 (3) SA 421
(SCA)
.
Counsel argued further that N. was not called to give evidence today
and she would have been in a much better position as a mother
of this
minor child to assist the Court in this regard. The Court was
informed that N. could not attend the Court today due
to ill health.
That notwithstanding, Counsel argued that the Court should draw a
negative inference on the fact that she
was not called to give
evidence in these proceedings. This Court was referred to page 15 of
the bundles relating to the pre-trial
minutes in particular para 5
where it was recorded that:
“
the
Defendant records that it admits the locus standi of Z.Maria Mnguni
as well as the deceased’s duty to maintain her. The
defendant
does not admit the locus standi of the further two plaintiffs nor the
deceased’s duty to maintain the said individuals
”.
Counsel
for the Defendant contended that the Plaintiff should have known that
N. being Gift’s mother, is a necessary witness
and should have
been called to come and testify before this Court and that a failure
to do so by the Plaintiff should result in
a negative inference drawn
by this Court.
7.
Counsel
for the Plaintiff resisted this contention by submitting that the
failure to call an available witness should result in
a negative
inference in certain qualified instances. He stated that no contrary
version was put to the witness which was in turn
rebutted. He argued
that it was also not put to the witness that evidence will be led to
contradict the version that the witness
had put before this Court.
As such the contention that the Court should make an adverse finding
in favour of the Defendant
for the Plaintiff’s failure to call
N. as a witness is not to be supported. In this regard the
Court was referred to
page 96 of the court bundle, to an affidavit
deposed to by N. where she states under oath that the deceased was
the grandfather
and a natural guardian of Gift. He therefore
begged the Court to find that the deceased supported Gift and that he
had a
legally enforceable duty to do so.
8.
I
shall now turn to the law applicable to circumstances under which a
person has a legally enforceable duty to maintain or support
another.
It is trite that only dependant to whom the deceased was under a
legal duty to provide maintenance and support ma sue
and in such
action the dependant must establish actual patrimonial loss, accrued
and prospective, as a consequence of a bread winner.
That the
instances in which such a duty of support is recognise has evolved
over time. Currently there are different kinds of relationships
giving rise to a cause of action for damages suffered due to loss of
maintenance as a result of the death of a bread winner, for
example
that of a spouse, that of a blood relation of appropriate closeness,
partners in same sex unions and life partners. It
is trite that at
common law a child had a duty to support a parent if the parent was
indigent or, given the parent’s “station
in life”,
supplementation of support was necessary. Sutherland J in the case of
JT
v RAF
2015 (1) SA 609
(GJ)
at page 613 said that:
“
the
scope for the recognition of a duty of support premised on factors
other than the traditional grounds, i.e. parenthood or marriage,
has
received considerable judicial attention
”.
He
referred to Grogan AJ’s obiter dictum in a reported case of
Jacobs v Road Accident Fund
2010 (3) SA 263
(SE)
in which he
said:
“
There is
a further consideration. It would in my view be invidious were this
court to rule that the deceased had no duty to support
his father
when he had voluntarily assumed that obligation. In my view this
undertaking gave the Plaintiff a reasonable expectation
that his
maintenance contributions would continue. A duty of support between
family members is one of those areas in which the
law gives
expression to the moral views of society. In the present case the
Plaintiff did not have to enforce his right to maintenance
from the
deceased. The deceased voluntarily assumed that
obligation. In my view this is sufficient in itself to warrant
a
finding that the Plaintiff had acquired a right to maintenance
from his own son which was enforceable against the insured
and, by
law, against the Defendant”.
9.
I
agree with Sutherland J in his view that Grogan AJ seems to imply
that indigence might not be a necessary precondition for a successful
claim of loss of support and that the issue of indigence will be of
no moment in regard to a minor. That the voluntary assumption
of such
a role could ground the existence of such right. It is true that
morality of society endorses the idea that a family member
ought to
support another family member. In para 18 of his judgment
Sutherland J stated that the judgment of Grogan AJ in
Jacobs
v RAF
supra and that of Dlodlo J in
Fosi
v Road Accident Fund and Another
[2007] ZAWCHC 8
;
2008 (3) SA 560
(C)
impacted the morality of society about supporting a parent in need
and the voluntary assumption of support was emphasised as relevant
to
the duty arising and being enforceable against third parties.
10.
In
another case of
Metiso
v Padongeluksfonds
2001 (3) SA 1142
(T)
at 1150G-H, Bertelsmann J found in favour of claimants who had lodged
a claim for loss of support against RAF arising from the
death of an
uncle of certain children whom he had supported. He found that a de
facto adoption should be acknowledged and that
the formal defects be
overlooked and, secondly that a binding offer to support the children
were sufficient to ground a duty of
support because to do so was
consistent with the morality of society.
11.
Sutherland
J in
JT
v RAF
supra at page 616 at para 26 held authoritatively as follows:
“
It
seems
to me that these cases demonstrate that the common law has been
developed to recognise that a duty of support can arise, in
a given
case, from the fact-specific circumstances of a proven relationship
from which it is shown that a binding duty of support
was assumed by
one person in favour of another. Moreover, a culturally imbedded
notion of “family”, constituted as
being a network of
relationships of reciprocal nature and support, informs the common
law‘s appetite to embrace , as worthy
of protection, the
assumption of duties of support and the reciprocal right to
claim support, by persons who are in a relationship
akin to that of a
family. This norm is not parochial but rather is likely to be
universal, it is certainly consonant both with
the norms derived from
the Roman-Dutch tradition, as alluded to by Cachalia J in Paixao
v RAF supra and, no less,
from the norms derived from African
tradition, not least of all exemplified by the spirit of Ubuntu, as
mentioned by Dlodlo J in
Fosi v RAF supra”
.
12.
In
the present case it appears to me that N. who is Gift’s mother
surrendered her son from the moment of birth to the care
and support
of her mother and father who is now deceased and this I assume she
did with the best interest of Gift in mind. Gift
as was testified
appears to have, for all intents and purposes, been a de facto child
of Z.and the deceased growing up in their
presence and being
financially dependent on them. There was no evidence presented before
me which pointed to the contrary. In fact
it is undisputed that
deceased financially supported Gift. Based on the above case law I
see no compelling distinguishing factor
that warrants me to depart
from a seemingly widely held view that voluntary assumption of
support is important and sufficient to
ground a duty of support which
is legally enforceable against the ensured and by law, against the
Defendant in this case.
13.
I
reject the contention by the Defendant that due to the fact that
Gift’s mother N. is alive and employed, the deceased had
no
legally enforceable duty to support Gift unless it can be shown that
she is unable to do so. I am inclined to borrow the words
of
Sutherland J in
JT
v RAF
supra in this regard when said that Gorgan AJ seems to imply that
indigence might not be a necessary precondition to ground a right
to
support and that self- evidently, in regard to a minor, the issue of
indigence dose not arise. This matter should therefore
not be treated
differently. From the above mentioned case law it is clear that the
voluntary assumption of support is emphasised
as relevant to the duty
arising and being enforceable against third parties. The voluntary
assumption of support by the deceased
created an expectation of its
continuation and his untimely death resulted in such support being
lost by Gift. Accordingly it is
my view that this is a case where the
law must clearly express the morals of society and for the common law
to resonate with modern
day life expectations of society as will be
reflected in the order that I make in this regard.
ORDER
I
make the following ruling:
1.
By
voluntarily assuming an obligation to support Gift, the deceased
conferred on him a legally enforceable duty of support;
2.
The
Defendant is liable to compensate the Plaintiff in respect of the
loss of support suffered as a result of the death of Sprinkaan
Petros
Mnguni and shall pay the amount of damages occasioned thereby;
3.
The
costs of this trial shall be for the defendant;
4.
That
I may be approached to make an order if required by the parties to
amplify other aspects of the case upon which an agreement
has been
reached in respect of the quantum.
________________________________
MALULEKE
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Date
of hearing:
20
August 2015
Representation
for Plaintiff:
Counsel
: A A
Voster
Instructed
by :
Gildenhuys Malatji Incorporated
Representation
for the Defendant:
Counsel
: M
Rabaney