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[2013] ZAGPPHC 145
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Modisane v Road Accident Fund (71221/2011) [2013] ZAGPPHC 145 (30 May 2013)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION, PRETORIA)
CASE
NUMBER:71221/2011
DATE:30/05/2013
In
the matter between:
WINNIE
DINEO
MODISANE
.....................................................................................
PLAINTIFF
and
THE
ROAD ACCIDENT
FUND
................................................................................
DEFENDANT
JUDGMENT
STRIJDOM
AJ
(A)
INTRODUCTION:
1.
The Plaintiff is Winnie Dineo Modisane, an unemployed major female,
who acts in her personal capacity as well as her representative
capacity as mother and natural guardian on behalf of K M and OR M.
2.
She instituted a claim against the Defendant in terms of the Road
Accident Fund Act 56 of 1996 (the “Act”) in her
personal
capacity as well as her representative capacity as mother and natural
guardian on behalf of the two minor children for
the loss of support
suffered by herself as a result of the death of her late husband May
Stephen Mphephu in a motor vehicle accident
which occurred on 31
August 2008.
3. COMMON CAUSE FACTS:
3.1.
The customary marriage between the Plaintiff and the deceased was
entered into on 11 November 2006 and concluded on 16 December
2006.
3.2.
The deceased was the natural father of ORM (with Identity number
...).
3.3.
The deceased, at the time of the accident, maintained the Plaintiff
and the two minor children.
3.4.
The deceased passed away at the accident scene as a result of
injuries he suffered in the motor vehicle accident.
4.
The merits have already been finalised in favour of the Plaintiff on
the basis of 100% liability on Defendant’s part.
5.
The only issue that remain for determination is whether the Defendant
is liable to compensate the Plaintiff for loss of support
in respect
of the minor child KM (with Identity Number ..).
6.
Counsel for the Defendant submits that K M was not legally adopted by
the deceased and subsequently was not liable to support
him.
7.
Counsel for the Plaintiff submits that the deceased clearly expressed
his intention to adopt the child during negotiations and
the entering
into customary marriage and was therefore liable to maintain the
child.
THE PLAINTIFF’S CASE:
8.
Winnie Dineo Modisane testified that she is the biological mother of
the two minor children and she is a Tswana. She agrees to
marry the
deceased in a customary marriage. The parents of the families met and
negotiate a customary marriage.
9.
During the discussions and negotiations to enter into a customary
marriage, the deceased was aware of the fact that the Plaintiff
gave
birth to K M and that he is not the biological father.
10.
She testified that the deceased took her and the child K M into the
customary marriage. They stay together as a family and the
deceased
support the two minor children.
11.
The Plaintiffs evidence was not seriously contested in
cross-examination and no evidence was led by the Defendant.
CUSTOMARY LAW:
12.
Section 2 (2) of the recognition of Customary Marriages Act, No 120
of 1998 provides that a customary marriage entered into
after the
commencement date, which is 15 November 2000, which complies with the
requirements of that Act, is for all purposes recognised
as a
marriage.
13.
Plaintiff relies on the concept “O e gapa le namane" as
the basis for liability of the Defendant.
14.
Reliance on the concept of “O e gapa le namane”,
applies to children in the context of indigenous customs, practises
and traditions. In that sense, it means “Go nyala mosadi ka
ngwana yo o sa mo tsaleng ka madi.” Loosely translated,
it says
‘To take a child born of another man into your marriage with
its mother.’' For all intents and purposes, it
is equal to the
customary adoption of a child.
15.
A man who does not intend to take a child who is under the age of
14, born of another man into his marriage with the mother
of that
child, must express such intention during the negotiations and the
entering into a customary marriage.
16.
The Plaintiff testified that:
16.1.
The child K M was disclosed to the deceased and he accept the child.
16.2.
Deceased assumed responsibility for providing the child with shelter
and maintenance.
17.
Nothing precludes a man from expressly manifesting a desire, during
the negotiations and the entering into a customary marriage,
to take
the children into his marriage with their mother, and to assume the
role of fatherhood for these children. Once there is
such agreement,
such children become the children of the spouse concerned, and the
spouse concerned becomes the father of the children
in full. This
fatherhood amongst others attracts the duty to maintain each other.
See: Schapera I: A Handbook of Tswana
Law and Custom p 172-3
18.
I am satisfied that the Plaintiff has set out sufficient facts before
me to conclude that the deceased took the child K M into
his alleged
customary marriage with the Plaintiff which is equal to the customary
adoption of a child.
19.
I am called upon to not only interpret, but also to be equal to the
task of developing customary law.
20.
Section 39 (3) of the Bill of Rights states as follows:
“
The
Bill of Rights does not deny the existence of any other rights of
freedoms that are recognised or conferred by common law, customary
law or legislation, to the extent that they are consistent with the
Bill.”
21.
When interpreting the Bill of Rights, a Court must promote the values
that underlie an open and democratic society based on
human dignity,
equality and freedom.
22.
In the result judgment is granted in favour of the Plaintiff.
23.
It follows that the Defendant is liable to compensate the Plaintiff
and the two minor children for the loss of support suffered
by
herself as a result of the death of her late husband.
24.
The Draft Order annexed hereto marked “X" is made an order
of Court.
SIGNED
AT PRETORIA ON THIS THE 30
th
DAY OF MAY 2013
JJ STRIJDOM
ACTING
JUDGE: NORTH GAUTENG HIGH COURT