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[2013] ZAGPPHC 201
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V.S.M and Another v Minister of Police of the Government of the Republic of South Africa (68/2012) [2013] ZAGPPHC 201; 2013 (5) SA 622 (GNP) (3 July 2013)
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REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT ON
CIRCUIT IN POLOKWANE. LIMPOPO
(REPUBLIC OF SOUTH AFRICA)
CASE NO: 68/2012
DATE: 03/07/2013
In
the matter between:
V
S
M
…..............................................................................................................
First
Plaintiff
R
L
M
...............................................................................................................
Second
Plaintiff
and
THE
MINISTER OF POLICE OF THE
GOVERNMENT
.....................................
Defendant
OF
THE REPUBLIC OF SOUTH AFRICA
JUDGMENT
INTRODUCTION
1.
The question raised in this case is whether a child whose parent/s
has died as a result of unlawful conduct of a third party,
has a
right to sue for constitutional damages arising from an infringement
of the constitutional right to parental care as provided
for in
section 28(1) (b) of the Constitution of the Republic of South Africa
1996 ("the Constitution”).
THE PARTIES AND THE CLAIM
2.
The Plaintiffs, V S M and R L M are the mothers of two (2) minor
children, DMM (“D”) and L C Y M (“L”)
respectively, who have instituted action for damages suffered by them
as a result of the unlawful death of their husband and father
of the
minors W M (“the deceased”). The deceased, who was the
family care giver or breadwinner, died after sustaining
serious
injuries during detention by the police. The Plaintiffs are claiming
in their personal capacities as well as in their capacities
as
mothers and natural guardians of the deceased’s minor children.
The Defendant is the Minister of Police.
1.
In the summons, the Plaintiffs claim R1 225 368, 00 for D and R1 148
346, 00 for L. It is alleged in the summons that the damages
suffered
“are general in nature and it is neither possible nor practical
to particularise the amount in any further detail.
”
2.
The claim lodged is for common law damages for the Plaintiffs’
loss of support, as well as loss of comfort, society and
services.
There is also a claim for constitutional damages on the grounds that
the children were, as a result the unlawful death
of their father and
natural guardian, deprived of the constitutional right to parental
care.
BACKGROUND FACTS
3.
When the matter came before me on the 18th April 2013, both the
Plaintiffs and the Defendant indicated to the Court that they
have
reached a settlement in regard to the claim for loss of support and a
draft order was presented to the Court to make it an
order of Court.
The parties indicated to the Court that no agreement has been reached
in regard to the claim for constitutional
damages and for that
reason; they agreed to present a stated case for adjudication by the
Court.
6.
The parties presented a statement of agreed facts in terms of Rule
33(1) and (2) of the Uniform Rules of Court. These facts may
be
summarised as follows:
6.1
On 31 December 2008, one AM Mhangwana laid a complaint at the Ritavi
Police Station in Limpopo that four motor vehicle tyres
and four
magnesium rims belonging to her have been stolen. On 15 March 2009,
Leonard Mhangwana, a relative of the complainant,
confronted the
deceased at his home, claiming that the deceased was in possession of
the stolen items. The deceased denied this
accusation and stated that
he legally purchased the tyres and magnesium rims found in his
possession, from a mechanic in Phalaborwa;
6.2
The two men went to Ritavi Police Station were on arrival the
deceased was detained by the police at 19h00. He was locked up
in a
police cell that had 19 inmates. During the night of 15 March 2009,
some of these inmates assaulted him by kicking him several
times on
his back and ribs while others were singing to drown out the noise.
As a result of this assault, he sustained serious
injuries;
6.3
While the deceased was still in detention, the police investigation
revealed that he had indeed purchased the tyres and rims
legally.
Consequently on 16 March 2009, the day after his arrest, the deceased
was then released from detention. At the time of
his release, the
deceased was suffering pain, sweating and vomiting. His relatives
took him to a doctor who diagnosed “a
swollen face; swollen on
all 4 limbs; aberrations and lacerations on the lumbar region; chest
found to be clear with normal heart
beats but had mild dyspnoea;
acute stress; multiple bruises on the posterior chest wall; soft
tissue injuries and racoon left eye.”
1
The doctor referred him to hospital for treatment. He died in
hospital on 16 March 2009;
6.4
At the time of his incarceration, the deceased was healthy and in a
normal condition. The police occurrence book records the
inspection
of the cells with an entry to the effect that everything was normal.
6.5
The parties stated in the statement of facts as well as the Court
Order that the issue of constitutional damages is separated
from the
other claims. The request, as I understand it, is thus for the Court
to adjudicate only on the question of constitutional
damages.
THE PARTIES’ CONTENTIONS
4.
The Plaintiffs, acting on behalf of their children, claim for
payment
of constitutional damages for deprivation of parental care, as a
result of the Defendant’s alleged unlawful breach
of the
constitutional right provided for in section 28(1 )(b) - the right to
family care or parental care. Section 28(1) (a-d)
of the Constitution
provides:
“
(1)
Every child has the right-
(a)
to a name and nationality from birth;
(b)
to family care or parental care, or to appropriate alternative care
when removed from the family environment;
(c)
to basic nutrition, shelter, basic health care services and social
services;
(d)
to be protected from maltreatment, neglect, abuse or degradation.”
2
8.
The Plaintiffs contend that under the common law, their children
would not be compensated for the loss of parental care as there
are
no such damages provided for in delict. They further contend that
such damages as the child’s deprivation of parental
care,
should be recognised and compensated for in terms of the
Constitution, as constitutional damages under the rubric of
“appropriate
relief’. The Plaintiffs further submit, with
reference to a number of authorities including Fose v Minister of
Safety and
Security
3
(“the Fose case”) that they are entitled to
constitutional damages in vindication of the fact that their minors
are
deprived of the parental care of their deceased father, who met
his demise as a result of the alleged unlawful conduct of the
Defendant’s
employees.
9.
It is further contended for the Plaintiffs that a claim for
constitutional damages, was recognised in the Fose case and endorsed
in Modderklip East Squatters v President of the_Republic of South
Africa
4
(“the Modderklip SCA case”), and President of the
Republic of South Africa and Another v Modderklip Boerdery (Pty)
Ltd
(Agri SA and Others, amici curiae)
5
(“the Modderklip CC case”).
10.
The Defendant on the other hand submits that there is no scope for
the introduction of so-called constitutional damages on the
facts of
this matter, due to the fact that ample compensation is provided for
in terms of common law, even in the pre-constitutional
form. In this
regard, the Defendant also refers to the Fose case as well as the MEC
Department of Welfare, Eastern Cape v Kate6
6
(“MEC of Welfare v Kate”).
CONSTITUTIONAL
DAMAGES AS APPROPRIATE RELIEF
11.
The concept “appropriate relief appeared in section 7(4) of the
Constitution of the Republic of South Africa Act
7
(“the Interim Constitution”). This Act was repealed by
the current Constitution. Section 38 of the Constitution retained
reference to Appropriate relief thus:
“
Anyone
listed in this section has a right to approach a competent court,
alleging that a right in the Bill of Rights has been infringed
or
threatened, and the court may grant appropriate relief, including a
declaration of rights.”
8
12.
It is further significant and also apposite in the context of this
case that section 15 of the Children’s Act 38 of 2005
(“the
Children’s Act”) makes reference to appropriate relief as
a remedy the court may grant in the case of infringement
of the Bill
of Rights.
9
13.
In the Fose case, the Plaintiff had sued the Defendant (also the
Minister of Safety and Security) in terms of the common law,
for
delictual damages arising out of injuries sustained while being
assaulted by members of the South African Police. The Plaintiff
further sued for punitive constitutional damages, as “appropriate
relief in terms of the provisions of the then section 7
(4) of the
interim Constitution, to deter and prevent the members of the South
African Police from such infringement in the future.
The Defendant
raised an exception, which was upheld by the Court a quo, challenging
the legal validity of the claim for constitutional
damages as
appropriate relief. On appeal, the Constitutional Court found, on the
facts that the Plaintiff did not succeed to make
out a case in
support of this claim.
14.
In considering the question of constitutional damages as appropriate
relief, the Constitutional Court in the Fose case held,
amongst
others, in paragraph 60 of the judgment that there was no reason in
principle why “appropriate relief should not
include an award
of damages where such an award was necessary to protect and enforce
Chapter 3 rights. Chapter 3 of the Constitution
provides for the Bill
of Rights, which include Children’s rights in section 28.
15.
The Supreme Court of Appeal (“SCA") in the Modderklip SCA
case awarded constitutional damages to a land owner whose
land was
occupied by squatters, as compensation for the loss of ownership of
that land. The State could not enforce an eviction
order as it had
failed to arrange alternative land to accommodate the squatters. On
appeal, the Constitutional Court in the same
case, the Modderklip CC
case, confirmed the award as the most appropriate remedy to the
infringement of the constitutional right
of the land owner.
16.
In the matter of MEC Welfare v Kate, the SCA found that the
unreasonable delay in considering a claimant’s disability
grant
resulted in the denial of the claimant’s right to social
assistance and as such, a breach of her substantive constitutional
right. The Court held that award of constitutional damages was the
most appropriate remedy under the circumstances. Constitutional
damages equivalent to interest payable on the amount accruing to the
claimant during period of delay, were awarded.
17.
The significance of these cases is that the Constitutional Court and
the SCA not only recognised constitutional damages as part
of our
law, but also accepted the principle that any party, whose
constitutional rights have been infringed, may seek a remedy
under
the rubric “appropriate relief. The principle was affirmed by
the Constitutional Court in the Fose case, where it stated
that “if
it was necessary to do so, the courts might even have to fashion new
remedies to secure the protection and enforcement
of these all
important rights. ”
1
0
18.
It is clear that the law in South Africa recognises constitutional
damages which may be awarded as appropriate relief in compensation
for loss suffered as a consequence of unlawful infringement of a
constitutional right. In this regard, a court may fashion a new
remedy and make an award in the form of constitutional damages as
appropriate relief to compensate for an infringement of a
constitutional
right. Should these constitutional damages include
infringement of the constitutional right to family care or parental
care?
FAMILY CARE OR PARENTAL CARE
5.
The concept of the right to family care or parental care is not
defined in the Constitution. However section 1 of the Children’s
Act provides for the definition of care as follows:
“
“
Care” in relation to a
child, includes, where appropriate-
(a)
within available means, providing the child with-
(i)
a suitable place to live;
(ii)
living conditions that are conducive to the child’s health,
well-being and development; and
(Hi)
the necessary financial support;
(b)
safeguarding and promoting the well- being of the child;
(c)
protecting the child from maltreatment, abuse, neglect, degradation,
discrimination, exploitation and other physical, emotional
or moral
harm or hazards;
(d)
respecting, protecting, promoting and securing the fulfilment of, and
guarding against any infringement of, the child’s
rights set
out in the Bill of Rights and the principles set out in Chapter 2 of
this Act;
(e)
guiding, directing and securing the child’s education and
upbringing, including religious and cultural education and
upbringing, in a
manner
appropriate to the child’s age, maturity and stage of
development;
(f)
guiding, advising and assisting the child in decisions to be taken by
the child in a manner appropriate to the child’s
age, maturity
and stage of development;
(g)
guiding the behaviour of the chid in a humane manner;
(h)
maintaining a sound relationship with the child;
(i)
accommodating any special needs that the child may have; and
(j)
generally, ensuring the best interests of the child is the paramount
concern in all matters affecting the child;...”
6.
It seems to me that the meaning of “care” in section 1
of the Children’s Act, adumbrates the concepts of family
care
or parental care as stated in section 28(1 )(b) of the Constitution.
The content of these concepts of family or parental care
is further
expatiated throughout the text of the Children’s Act, more
specifically in Chapters 2; 3; 5; 9; 10; 11; 12 and
13. The claim for
loss of support in terms of the common law of delict or compensation
for loss as a result of the death of a parent
is applied
restrictively to address the child’s rights to material or
financial support. Such right is expressed in section
28(1 )(c) of
the Constitution read with section 1(a) of the Children’s
Act.
1
1
The payment of fees relating to education, medical treatment, food,
accommodation, clothes and entertainment (including attendance
of
sport and social events) is effected in monetary terms as
maintenance.
21.
The payment for the loss of support or maintenance of a child as we
know and apply it in common law is thus only part (sectionl
(a) of
the Children’s Act) of the wider meaning of family care or
parental care. The other aspects of parental care (sectionl
(b) to
(j) of the Children’s Act) are almost always not considered nor
included in the award for damages arising out of a
child’s loss
of support.
22.
In my view, and as stated above, the content of the right to parental
care goes further than just the need for financial support.
From the
time of the birth of a child, there are numerous duties which parents
have to perform and where money is not a factor.
These would include
teaching the child to eat, to put on clothes, to tie shoes, to use
ablution facilities, to walk, to talk, to
respect, to express
appreciation, to do homework and perform house chores, to be present
and supportive of the child during his/her
participation in sport and
art activities. The list is endless and no attempt is made here to
create a numerus clausus. These parental
care duties are performed to
assist the child to prepare for life challenges. They could be
referred to as parental guide, advice,
assistance, responsibility or
simply parenting or child nurturing.
23.
Parental care in general includes a show of love and affection by the
parent to the child. However, the definition of “care”
in
the Children’s Act does not make reference to a need “to
show love and affection to the child” as one of the
duties that
a parent must perform. It therefore seems to me that for now, actions
for damages arising out of section 28 of the
Constitution will not be
based on the child’s deprivation of parental love and affection
as is the case in other jurisdictions.
24.
In Jooste v Botha
1
2
),
the Court had to consider a claim by a child born out of wedlock, for
the love and affection from the biological father. The
Court wrote as
follows
1
3
:
“
The
parent-child relationship has two aspects: the economic aspect of
providing for the child’s physical needs and the intangible
aspect of providing for a child’s psychological, emotional and
developmental needs. The best interests of the child demand
an
environment of love, affection and consideration. This Exception
raises the question whether the moral duty to provide the latter
is
legally enforceable.”
25.
In the matter of Government of the Republic of South Africa and
Others v Grootboom and Others
1
4
the Court held that Section 28(1 )(b) must be read with Section 28(1
)(c) and that the responsibility for the fulfilment of the
rights in
Section 28 lies primarily on parents. Further in the case of Heystek
v Heystek
1
5
the Court held that “parental care is not confined to natural
parents, but extends to step parents, adoptive parents and
foster
parents.”
26.
There is no doubt in my mind that the rights in Section 28(1 )(b) of
the Constitution qualify, together with all other constitutional
rights, for protection and enforcement. However, can constitutional
damages for family care or parental care be claimed and be
compensated for, as part of the appropriate relief provided for in
the Constitution or in terms of section 15 of the Children’s
Act? There seems to be no precedent in South Africa for award of
damages arising out of the breach of parental care rights. I now
turn
to consider the law as it applies in other foreign jurisdictions.
27.
Currently in the United States of America (“US”) and
Canada, there are statutes in place that provide for a child
to claim
for the loss of parental love, affection, nurturing and care. In
United Kingdom and Australia there are common law principles
that
provide for a child to claim pecuniary loss of parental support but
not love and affection as in the US and Canada. The claims
are lodged
a result of the death of a parent/spouse, caused by unlawful conduct
of a third party.
The United Kingdom:
28.
The position in the United Kingdom differs from that of Canada and
United States in that no claim for damages is allowed in
respect of
loss of love, guidance and affection which a child received from a
deceased parent. The only claim it allows is a claim
from a child for
the loss of services of a mother, which is based on the notional cost
of hiring a nanny. In the matter of Hva
and Another v Hughes
1
6
,
an action was brought for damages where children were deprived of
their mother’s services in caring for them after a car
accident. The Judge said that the two infants were injured by the
death of their
mother
which falls within the wording of The Fatal Accident Act, 1846, The
Judge stated thus:
“
In
the present case Mr and Mrs Hya’s children doubtless suffered
grievously in the variety of ways in consequence of their
parents’
death in the accident which has occasioned this action. They have
lost the benefits and happiness it was to be expected
they would
derive as they grew up from the companionship of their father and
mother. They have lost parental love. They have lost
the joys of a
happy home. These losses cannot be assessed in monetary terms and so
cannot support a claim for damages."
29.
In essence therefore, United Kingdom has no claim for damages in
respect of loss of love, guidance and affection which a child
was
receiving from a deceased parent.
Australia:
30.
The position In Australia mirrors that of the UK. In the matter of
Lincoll v Gravel
1
7
Dickson J stated as follows:
“
The
word ‘pecuniary’ in the above quotations is not used in a
narrow or technical sense. It is used in conjunction with
loss or
gain to connote the loss or gain of material benefits as distinct
from emotional or non-material benefits such as love
or
companionship. ”
31.
A statutory provision for damages in Australia is based on Lord
Campbell’s Act, which is the equivalent of the Fatal
Accident
Act 1846 of UK in Sections 12 to 15 of the Common Law Practice Act
1867 (Q). Damages for the death of a deceased relative
can be claimed
in terms of Lord Campbell’s Act. Lord Halding, in the matter of
Taffvale Railway Company V Jenkins
1
8
stated the following:
“
The
basis (of action) is not what has been called solatium, that is to
say, damages given for injured feelings or on the ground
of
sentiment, but damages based on compensation for a pecuniary loss.”
Canadian
Law:
32.
Canada has legislation that makes it possible for a child (and
certain other relatives) to claim for loss of a parent’s
love,
guidance and affection caused by the wrongful/negligent death of that
parent. These provisions are contained in the following
Canadian
Statutes namely: Family Compensation Act1
1
9
and the Fatal Accident Act.
2
0
These statutes, are accepted by most Courts in Canada as the basis
for action to claim loss of love, guidance and affection which
damages can be in the form of pecuniary loss. Section 6(2) of the
Fatal Accidents Act provides: “(2) The damages awarded
under
subsection (1) may include an amount to compensate for the loss of
care, guidance and companionship that a person for whose
benefit the
action is brought might reasonably have expected to receive from the
deceased if the death had not occurred.’’
This was
illustrated in the matter of Garami-Balmer v Hrehirchuk.
2
1
The Court is also of the opinion in this case that the interest in
terms of the Court Order Interest Act, is payable on an award
of
damages to an infant claimant under the Family Compensation Act for
example, for the loss of the claimant’s father’s
love,
guidance and affection. In a settlement reached out of Court, the
amount of this loss was quantified at $30,000 Canadian
Dollars for
both past and future loss. The Court in that case came to the
conclusion that the loss of love, guidance and affection
was a
pecuniary loss and that interest is payable on the amount.
33.
In the case of St Lawrence and Ottawa Railway Company v Lett,
2
2
the Supreme Court of Canada differentiated between sentimental loss
and substantial loss, the last of which is recoverable. The
Plaintiff
was awarded an amount of $5,800 Canadian Dollars damages of which
$1,500 was apportioned to the husband and the balance
divided among
the children. The Court stated that: “Although on the death of
a wife caused by negligence of a railway company,
the husband cannot
recover damages of a sentimental character, yet the loss of household
services accustomed to be performed by
the wife, which would have to
be replaced by hired services, is a substantial loss for which
damages may be recovered, as is also
the loss to the children of the
care and moral training of their mother."
34.
In the matter of Peacock (Guardian Ad Litem of),
2
3
an action was brought in terms of the Family Compensation Act whose
claim was under four headings, the first of which was a claim
for
loss of guidance. The Court held that depending on the circumstances
of every case, the award for loss of guidance may be increased
or
decreased.
35.
The Courts in Canada have accepted that the definition of the word
“injury” includes substantial loss such as loss
of care,
guidance and affection and is recoverable in being a pecuniary loss
interest and payable in terms of a Court order.
United
States of America:
36.
In the United States of America (USA) a child can sue for the
wrongful death of a parent and receive compensatory damages for
loss
of parental nurturing. The ways in which the Courts measure the value
of parental nurture is that they consider the impact
that the
father/mother’s nurturing would have had on the future monetary
success of the children. In the case of Tilley v
Hudson Reeva RR
2
4
,
the Court speculated that a mother’s nurturing will not only
prepare a child for the next world, but will aid a child’s
worldly prospects and pecuniary interests and that parental nurturing
has the purpose of providing for a child’s temporal
welfare.
37.
In the case of Mascuilli v United States.
2
5
the Court stated as follows:
“
A
child whose father has been killed is entitled to compensation for
the loss of care, training, advice, guidance and education
insofar as
these matters are susceptible to money valuation.”
38.
In Roqow v United States
2
6
the Court considered with approval the question whether a child
suffers a pecuniary loss in losing a loving and devoted father.
Similarly, in the case of Spangler v Helms NY
-
PGH. M Express
2
7
the Court stated thus:
"The
fact that there is no mathematical formula whereby compassionately
bestowed benefits can be converted into a precise number
of bank
notes does not mean that the Tortfeasor will be excused from making
suitable reimbursement for the loss.
39.
In the case of Michigan Central Railroad Company, PLFF. In Err. v
Daniel B Vreeland
2
8
,
the Court stated the following:
“
That,
the duty of the mother to minor children is that of nurture, and of
intellectual, moral, and physical training, such as, when
obtained
from others, must be for financial compensation. In such a case it
has been held that deprivation is such as to admit
of definite
valuation, if there be evidence of the fitness of the parent, in that
the child has been actually deprived of such
advantages.”
40.
The approach of the USA Courts is that each case will be considered
on its merits where evidence regarding the role played by
the parent
in nurturing the child is presented.
2
9
41.
Most of the states in the USA have statutory provisions which allow
for damages for loss of parental nurture, as pecuniary loss.
In some
states, the statutory provisions are wide enough to allow parents to
sue for the wrongful death of their children as well
as the children
suing for wrongful death of their parents. The claims range from
economic loss, which would be the equivalent of
loss of support in
South Africa, to compensation for grief, loss of services or
companionship. In the case of children in particular,
it will be loss
of parental nurturing.
THE DEFENDANT’S CONTENTION
42.
The essence of the Defendant’s contention is that compensation
for loss of support includes the damages referred to by
the
Plaintiffs as constitutional damages. It is further argued that the
compensation paid by the defendant as loss of support is
adequate
award to include parental care. In support of this view, the
Defendant sought to rely on dicta by Justice O’ Regan,
who,
writing for the Constitutional Court in the Fose case
3
0
,
expressed the view that the competitive assessment of the remedies
granted in other jurisdictions for the breach of a constitutional
right indicated that in most cases there were “public law/’
remedies independent of those available under private tort
law. By
contrast, continued Justice O’ Regan, South African Private Law
of Delict was flexible and, under Section 35(3) of
the Interim
Constitution, should be developed by the Courts with due regard to
the spirit, purport and objects of Chapter 3. In
many cases the
common law would be broad enough to provide all the relief that would
be appropriate for a breach of a constitutional
right.
43.
I am of the opinion that this case does not fall within the instances
covered by the views expressed by the Learned Justice
O’ Regan
as stated in the preceding paragraph. In South Africa the right of a
child to family care or parental care is a
constitutional right which
is also expressed in a statute, the Children’s Act. In my view,
the future protection, enforcement
and development of these rights
will find expression out of the interpretation of these statutes. The
child’s need for maintenance
and care (or support) is now part
of the rights stated in section 28(1) of the Constitution and
repeated in the Children’s
Act. Section 15 of the Maintenance
Act 99 of 199831
3
1
describes the duty of the parent to support the child as arising from
common law. I am of the further view that the provisions
of this
section
3
2
are antiquated and are superseded by section 28(1) of the
Constitution and the Children’s Act. The duty of a parent to
maintain
his/her child arises out of, and is now governed by statute
and no longer common law. As it was stated by Mr Acting Justice Patel
(as he then was) in Heystek v Heystek:
3
3
“The Constitutional notion of parental care and the paramountcy
of the best interest of the child require an attitudinal
shift from
an antiquated Germanic parent and child relationship, which formed
the substratum of the common law, to the rights of
the child which
includes parental care and family care. Common law needs to be
aligned to serve the constitutional imperatives
of a child in a
heterogeneous democratic society.”
44.
The development of the concept of loss of support will thus have to
be effected also within the context of the rights of the
child as
stated in section 28(1) of the Constitution and the Children’s
Act. The award for compensation under loss of support
refers mainly
and almost exclusively to the extent of the contribution which the
deceased made to defray the day to day family
expenses. These would
include payment toward items such as nutrition, medical care,
accommodation, social services (section 28(1
)(b)) and education
(Section 29) of the Constitution. The Defendant’s contention
that compensation for a child’s loss
of support includes award
for loss of parental care cannot, in my view, be supported. It is not
one of those instances where common
law can be developed as stated in
the Fose case.
DETERMINING COMPENSATION FOR LOSS OF
PARENTAL CARE
45.
Experts have developed the scope and mathematical formulae to
calculate the payment of loss of support to minors whose parent/s
have died as a result of the wrongful conduct of a third party, see
Nochomowitz v Santam lnsurance
3
4
and Dieppenaar v Shield Insurance
3
5
These calculations are made by experts in actuarial science. Factors
such as the deceased’s earnings (past and future) as
well his
contribution to the expenses in the household are the bases of such
calculations.
46.
In the Court Order granted to the parties on 18 April 2013,
compensation awards are made to the First Plaintiff and the two
minors for loss of support. The amounts awarded were determined on
the basis of the actuarial report by Mr. Gerald Jacobson.
3
6
The award is calculated on what the deceased would have financially
contributed to the expenses of the family as part of maintaining
the
children. His income as well as the ages of the children at the time
of his death is the two most important factors in this
mathematical
equation.
47.
As demonstrated by the foreign jurisprudence, compensation for the
pecuniary loss of the right to parental nurturing is recognised
and
enforced as part of the protection of the rights of a child. The
issue that is now the subject of debate in these jurisdictions
is how
the awards should be calculated. In the matter of Garami-Balmer v
Hrehirchuk,
3
7
the Supreme Court of British Columbia grappled with the vexed
question of quantifying the awards for loss of parental guidance
rights. The Honourable Mr. Justice Burnyeat referred, in paragraph 18
of his opinion, to Cooper-Stevenson, Personal Injury Damages
in
Canada, 2nd Edition, Carswell, 1996 who wrote: “Claims by
children for the loss of parental work go beyond mere housekeeping
to
include the numerous job inevitability associated with child-rearing.
In some cases, one or two of these jobs are separately
itemized and
specific amounts allocated to each of them, based again prima facie
on the costs of substitutes. Usually, however,
the more appropriate
solution is a composite replacement, such as a nanny, or in the old
language, a nurse or governess. ”
48.
The Court went on to identify the costs of housekeeping or parental
care and guidance as essentially pecuniary, capable of
evaluation
under replacement costs or catalogue of services. In South Africa it
will include, in my view, the costs of a guardian
and/or helper,
depending on the age(s) of the child/children. Reference to a
guardian in this instance excludes a curator ad litem
or curator
bonis, whose functions and services are certainly not a replacement
of child-rearing or parenting duties within the
meaning of parental
care.
49.
The calculating of the amount of the award differs from case to case
as illustrated in the foreign courts cases. For example
in the case
of McKay v New England Dredging Company
3
8
the Supreme Judicial Court of Maine concluded that a child received
“actual and commercial value’’ from parental
training and education because nurture helps the child “obtain
an income or estate”. Two years later the same Court
in the
case of Oakes v Maine Cent RR
3
9
held that a jury assessing damages for loss of parental nurture could
consider the loss of the mother’s training that would
have made
the decadence child “a better man and capable of acquiring more
money'. It seems to me that in the United States
most of the cases
quoted above grapple with the mathematical formula of calculating the
damages in actions of this nature, on the
basis of the value that
parental care/nurturing would have on the future fortunes of the
child. Stated otherwise, parent nurturing
seems to be valued on the
basis of the foundations it lays for the child’s success in
future
4
0
.
50.
In the 1995 Volume 52 Issue 1 and Article 10 of the Washington and
Lee Law Review, Talcott J. Franklin in his publication, “Calculating
Damages For Loss of Parental Nurture Through Multiple Regression
Analysis” presents a method of calculating these damages.
He
recommends a mathematical formula which, through “multiple
regression analysis, can estimate parental nurture’s
pecuniary
value in terms of the child’s future income,...’’
at p320.
51.
In the case of loss of parental nurturing the most important factors
to be alleged and proved will be the ages of the children
at the time
of death of the parent, nature of the relationship between the child
and the parent, the role which the parent played
in the child’s
development, time spend together
4
1
and the general financial contribution by the deceased in the
upbringing of the child. Some cases also distinguish between the
instances where one parent survives the other, in which case the
award would be substantially less than in the instance where both
parents parish. Further arguments have also been raised in some
cases, concerning the prospects of re-marriage, with a view to
bring
in a partner who would otherwise replace the lost parental
services.
4
2
The latter applies more in jurisdictions whose statutes provides for
claims for loss of companionship by spouses. The claim for
loss of
parental care goes further than that of the loss of support. However,
in my view, the child cannot claim for both loss
of support and
deprivation of parental care separately as the former is part of the
latter. Such claim would amount to duplication
and undue enrichment.
52.
Our Constitution provides for the constitutional right to family care
or parental care. The Children’s Act has provided
a wider
meaning to child care in section 1. In terms of this definition and
as a general concept, parental care will thus include
the provisions
of section 28(1)(b),(c) and(d) of the Constitution. These rights,
like all other rights, deserve constitutional
protection and
enforcement. An infringement of these rights by third parties, where
it results in damages, should be compensated
for.
53.
It seems to me that any claim for damages on behalf of a child,
arising out of an infringement of that child’s rights,
must be
based on the provisions of section 28 of the Constitution read with
the relevant provisions of the Children’s Act.
A party
intending to claim damages on behalf of a child, for loss of parental
care as a result of the unlawful death of a parent,
should also base
such claim in terms of section 28 of the Constitution read with the
relevant provisions of the Children’s
Act, depending on which
specific right or rights is alleged to have been infringed. The cause
of action for these constitutional
damages should be stated in terms
of section 15
4
3
of the Children’s Act, as appropriate relief, in the form of a
claim for compensation arising out of loss of parental care.
These
provisions will serve as a legal basis for the claim. The law of
South African, unlike that of the USA and Canada, does not
have a
statute providing for compensation in respect of any child damages
consequent to unlawful death of a parent at the hands
of a third
party.
COURT’S FINDING
7.
I am therefore of the view that the Plaintiffs have a right to claim
constitutional damages on behalf of their children, for
unlawful
deprivation of their father’s care, as a result of the proven
unlawful conduct of the members of the Defendant.
MERITS AND QUANTUM
8.
The statement of facts submitted by the parties to the Court was for
the purposes of determining whether the Plaintiffs had the
right to
sue, on behalf of their children, for loss of their father’s
parental care. The Defendant does not concede the question
of
liability.
“
(1)
Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights or this
Act has
been infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights.” The
persons who may
approach the court are listed in subsection 2.
9.
It is also clear from the manner in which the amount in the claims is
pleaded, that the Plaintiff had a difficulty with attaching
values to
the constitutional damages arising out of the breach of the
children’s right to parental care. No evidence was
placed
before me to prove these constitutional damages. It will therefore be
appropriate to refer the proof of the damages to trial.
10.
In the premises, I am of the opinion that the Plaintiffs’ right
to claim should succeed and the Plaintiffs minors must
be compensated
for proven constitutional damages suffered as a result of unlawful
deprivation of parental care by the Defendant’s
conduct.
COURT ORDER
11.
I therefore make the following order:
11.1
The Plaintiffs’ right to claim for constitutional damages
lodged on behalf of the minor children of the deceased, succeeds;
58.2
The Defendant is liable to compensate the minor children of the
deceased for proven constitutional damages arising out of the
unlawful deprivation of their father’s parental care;
58.3
The Defendant is also ordered to pay the costs of these proceedings;
and
58.4
The action is referred to trial for evidence on quantum.
S
P MOTHLE
Judge
of the High Court
Pretoria
For
the plaintiff:
Mr
H Diamond
Instructed
by Diamond Hamman & Associates
2A
PIERRE STR, BENDOR, POLOKWANE
Tel:
(015) 296 3966 Fax: (015) 296 3982
For
the Respondent:
Adv
PJJ De Jager SC
Instructed
by The State Attorneys SALU BUILDING,
255
SCHOEMAN STR, PRETORIA
Tel:
(012) 309 1559
Fax: (012) 309 1641/2.
1
From
the report of the attending general practitioner, Dr. C. Mangolele.
2
Subsection
(e) and (f) protects the child from child labour while (g) to (i)
deals with protection of a child during arrest,
detention, trial and
armed conflict.
3
1997
(3) SA 786 (CC).
4
2004
(6) SA 40 (SCA)
5
2005
(5) SA 3 (CC)
6
2006
(4) SA 478 (SCA)
7
Act
200 of 1993
8
The
persons who may approach court are listed in the section.
9
Section 15 of the Children’s Act provides:
“(1)
Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights
or this Act has
been infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights.”
The persons who
may approach the court are listed in subsection 2.
1
0
P799 para 19
1
1
See
also WW v EW 2011 (6) SA 53 (KZP) and Krugel v Krugel 2003 (6) SA
220 (T).
1
2
2000
(2) SA 199 (T
1
3
P201E-F
1
4
2001(1)
SA 46 (CC)
1
5
2002]
2 All SA 401 (T)
1
6
(1975) 1 ALL ER 257
1
7
(1954) HCA 24
1
8
SBC
1996, c 126
1
9
RSNL
1990 Chapter F-6.
2
0
RSNL
1990 Chapter F-6.
2
1
1998
CAN L II 3984 (BCSC).
2
2
11,
SCR 422,
2
3
1999
Can L II 5720 (BCSC)
2
4
29
NY 252, 285 (1864)
2
5
343 F. Supp. 439 - Dist. Court, ED Pennsylvania, 1972
2
6
173 F. Supp. 547 (1959)
2
7
396
PA 482 (1959)
2
8
227 US 59 (1913)
2
9
See
further in this regard: Moore - McCormack Lines, Inc. v Richardson
295, F - D 583 (1961) and Shu- Tao Lin v McDonnall Corp.
574 F.
Supp. 1407 (1983).
3
0
P819
para 58
3
1
Maintenance Act was assented to 19 November 1998 and commenced in
November 1999
3
2
which is part of a statute that, as a matter of interest, was
promulgated after the Constitution of 1996,
3
3
[2002] 2 All SA 401 (T) at p404f-g
3
4
1972
(3) SA 640
3
5
1979(2)
SA 904 (A).
3
6
The
full actuarial report is attached to the court documents and shows
the tables applied to determine the amounts.
3
7
1998
Canll 3984 (BC SC),
3
8
43
A 29 (Me.1999)
3
9
49
A 418, 419 (ME 1901)
4
0
See also
4
1
In
De
Centeno v Gulf Fleet Crews 798 F.2d 138 (5th Circuit 1986)
evidence
showed that the deceased had worked 12 months a year and it could
thus not be proved that he spent adequate time with
his children.
The award was substantially reduced as a result.
4
2
S
ee
Vana v Tosta 1968 RCS 71 and Skelding v Skelding 1992, CanLII 1959
(BCSC) and Ruiz v Bouaziz, 2001 BCCA 207.
4
3
Section
15 of the Children’s Act provides: