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2015
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[2015] ZAGPPHC 969
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Naisbitt v Road Accident Fund (85653/2014) [2015] ZAGPPHC 969 (24 August 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: 85653/2014
DATE:
24 AUGUST 2015
In
the matter between:
MAGDALENA
JOHANA
NAISBITT
................................................................................
PLAINTIFF
And
ROAD
ACCIDENT
FUND
.............................................................................................
RESPONDENT
JUDGMENT:
STRYJDOM AJ
1.
The plaintiff sued the Road Accident
Fund for damages for the loss of support following the death of her
divorced former husband
(the "deceased") in a motor vehicle
accident which occurred on 19 September 2013.
2.
Negligence of the insured driver has
been conceded by the defendant. The quantum was separated from the
merits and postponed sine
die.
3.
It is common cause that on 19 September
2013 at or near Soutpansberg Makhado on the corner of Vlei and Kort
Streets, the deceased
was the
driver
of a motor cycle bearing registration letters and numbers ABB 566 L,
which was involved in an accident with a motor vehicle
bearing
registration letters and numbers CNT 954 L driven at the time by one
Mr Mulaudzi (the "Insured Driver").
4.
It is also not in dispute that defendant
was at all relevant times responsible in terms of Act 56 of 1996 to
compensate a third
party for any loss or damages suffered as a result
of the negligence and/or unlawful driving of a motor vehicle, of
which the identity
of the owner and/or the driver of such motor
vehicle has been established.
5.
The defendant pleads a general denial
plea but contends that after plaintiffs divorce the deceased had no
duty to support the plaintiff
and that duty was extinguished when she
divorced the deceased. No maintenance order was made in the divorce
action in favour of
the plaintiff.
6.
It was contended on behalf of the
plaintiff that before and after the plaintiff divorced the deceased
they resided at the same premises
and the deceased maintained the
plaintiff. It was further contended that even after the divorce, the
deceased voluntarily undertake
to maintain the plaintiff for the rest
of his life.
THE
RELEVANT FACTS:
7.
The relevant facts emerge from the
evidence adduced by the plaintiff and her two sons, Deon Geyer and
Fanie Geyer. The defendant
adduced no rebuttal evidence.
8.
Plaintiff testified that she was married
to the deceased since 18 February 2000 until 3 June 2013 when she was
formally divorced
from the deceased. The deceased passed away in a
motor accident on 19 September 2013.
9.
During the divorce proceedings she moved
out from the house and stayed in a room in the backyard on the same
premises.
10.
Prior to the divorce the deceased
contributed fifty percent of the household expenditure and the
plaintiff contributed fifty percent
which include the rent of the
house at 41 Kleynhans Street, Louis Trichardt. Her son Deon had also
made a contribution of R2,000.00
(two thousand rand) towards the
payment of the rent.
11.
She testified that even after the
divorce they lived together as if they were still husband and wife.
She contended that the deceased
was not a willing partner to the
divorce proceedings, however, he did not opposed the divorce. He
always informed her prior and
after the divorce that she will always
be his wife and that he will maintain her for the rest of his life.
The only reason why
she divorced the deceased was that he had abused
alcohol over the weekends.
12.
Plaintiff testified that although she
earned a salary of R3,000.00 per month she was dependent on the
deceased for his contribution.
After the deceased passed away her two
sons made contributions for her maintenance.
13.
In cross-examination she was asked by
counsel for the defendant why she did not claim maintenance in the
divorce proceedings. Her
response was that she was assisted by a
legal aid attorney in the Magistrate Court and it was not explained
to her that she is
entitled to claim maintenance.
14.
Deon Geyer, an adult male, testified
that he is the stepson of the deceased and the plaintiff is his
biological mother. He confirm
that prior to and after the death of
the deceased he stayed with the plaintiff and the deceased in the
parental home. He also contributed
R2,000.00 per month towards the
payment of the rent.
15.
He testified that the deceased
maintained the defendant before and after the divorce until he passed
away.
16.
Fanie Geyer, an adult male, testified
that the plaintiff is his biological mother and she was in his
employment on a part time basis
before the deceased passed away. He
confirm that he is paying the plaintiff a salary of R3,000.00 per
month. After the deceased
passed away he provide her with a car and
contribute R2,000.00 per month towards the maintenance of the
plaintiff.
EVALUATION
OF THE EVIDENCE:
17.
The evidence adduced by the plaintiff
was not seriously contested and no evidence was adduced by the
defendant.
18.
The plaintiff testified in a straight
forward manner. She did not contradict herself or any of the two
witnesses that testified
on her behalf. The plaintiffs witnesses
corroborated her version on all material aspects and did not
contradict each other.
19.
In considering the evidence in toto I
cannot find any inherent probabilities in the evidence of the
plaintiff. In my view the plaintiff
and her witnesses were reliable
witnesses.
THE
LAW APPLICABLE TO THE PERSENT CASE:
20.
The
case for the plaintiff rests on two legs: first that an express or
tacit agreement came into existence between the plaintiff
and the
deceased after their divorce which created a binding obligation upon
him to maintain and support the plaintiff and second
that the nature
of the relationship was such that it is deserving of the law
protection.
[1]
21.
The uncontested evidence adduced by the
plaintiff leaves me in no doubt that there was an express agreement
between the plaintiff
and the deceased after the divorce to the
effect that the deceased undertake to support the plaintiff for the
rest of his life.
22.
The obligations undertaken by the
deceased in my view gave rise to a duty of support which the law must
protect. The undertaking
of the deceased had given the plaintiff a
reasonable expectation that he will continue to maintain her even
after their divorce.
23.
It
was decided in Paixao and Another v Road Accident Fund that "the
right to support that may arise does not arise because
it is a
spousal benefit but rather because the obligation to support was
assumed in a relationship to support akin to a family
relationship."
[2]
24.
I came to the conclusion that by
continuing to maintain the plaintiff after the divorce and to live
together as husband and wife,
the deceased had conferred on her
enforceable right in respect of duty of support.
25.
After considering the merits and
demerits of the evidence and balancing the probabilities I am of the
view that the plaintiff must
succeed with her claim.
26.
In the result the following Order is
made:
26.1.
Judgment is granted on the merits in favour of the plaintiff with
costs.
JJ.STRIJDOM
ACTING
JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA DATE: 24 AUGUST 2015
[1]
Paixao
and Another
v
Road Accident Fund
2012
(6) SA 377
(SC A)
[2]
See also: JT v Road Accident Fund
2015 (1) SA 609
(GJ)