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[2013] ZAGPPHC 249
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Mawela and Others v Road Accident Fund (38991/2010) [2013] ZAGPPHC 249 (16 August 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
number: 38991/2010
DATE:16/08/2013
In
the matter between : -
MPULA
EVA
MAWELA
..................................................................................................
First
Plaintiff
AUGUST
KGADI
MAWELA
.....................................................................................
Second
Plaintiff
LUCAS
PATTIE
MAWELA
….......................................................................................
Third
Plaintiff
BOETIE
ALPHEUS
MAWELA
....................................................................................
Fourth
Plaintiff
ONICCAH
MMATSIE
MAWELA
.....................................................................................
Fifth
Plaintiff
and
THE
ROAD ACCIDENT
FUND
.........................................................................................
Defendant
JUDGMENT
JANSE
VAN NIEUWENHUIZEN AJ
[1]
The plaintiffs' issued summons against the Road Accident Fund ("the
Fund") for the payment of damages in respect of
loss of support
they suffered as a consequence of the death of Johannes Mawela ("the
deceased").
[2]
At the inception of the trial, I was informed by Mr Manala, counsel
appearing on behalf of the plaintiffs, that the third to
fifth
plaintiffs are not proceeding with their claim against the Fund.
Consequently, it is only the first and second plaintiffs'
claim
against the Fund that needs to be considered.
[3]
The parties have agreed that the Fund is liable for any damage proven
by the first and second plaintiffs.
[4]
In the premises, the only point in dispute between the parties at
this stage, is whether the first and second plaintiffs were
dependant
on the deceased for maintenance.
FACTS:
[5]
The claim arises out of the untimely death of the deceased in a motor
vehicle collision that occurred on 16 July 2008 at Randfontein.
The
deceased was 23 years old at the time.
[6]
he first and second plaintiffs instituted action in their capacity as
the parents of the deceased.
[7]
It is common cause that:
a)
the deceased was employed by the South African National Defence Force
(SANDF) at the time of his death;
b)
the deceased was not married and had no children.
c)
the deceased had a duty to maintain his parents, but such a duty
depended on their need for maintenance.
EVIDENCE:
First
Plaintiff:
[8]
The first plaintiff is the mother of the deceased.
[9]
The first plaintiff testified that she had four children and that the
deceased was her third child.
[10]
At the time of the deceased's death, the eldest two children
generated an income by selling sandwiches at a school. The first
plaintiff was not aware of the exact amount of profit they made, but
stated that they assisted her financially at the time.
[11]
The exact amount received from the two eldest children monthly is not
clear, but the first plaintiff testified that she bought
food and
contributed towards a burial society from the contribution she
received from them.
[12]
The family’s residence is situated in a rural area and although
they had electricity during 2008, they had no running
water or
ablution facilities.
[13]
The closest town to their village is Bela-Bela (Warmbaths) and she
utilises a taxi to commute to the town. She pays R 27, 00
for a
single trip.
[14]
She was not employed during 2008, but she has an ironing and washing
job at present in Johannesburg. She works two days a week.
[15]
The plaintiff was born on 21 January 1964 and was prior to 2008,
employed at a factory for three years. She lost her employment,
because the factory closed down.
[16]
She earned a salary of R 22 per week, which resulted in an income of
R
88 per month. This was the only time she had been employed prior to
the deceased's death.
[17]
The first plaintiff presently resides with her aunt in Tembisa during
the week and pays R 50, 00 per day towards transport.
She earns a
salary of R 1 200, 00 per month. Her taxi fare from Tembisa to her
home is R 85,00 for a single trip.
[18]
During cross-examination, the first plaintiff confirmed that the
deceased had a girlfriend at the time of his death.
[19]
The first plaintiff testified that the deceased was appointed at the
SANDF on 1 January 2007 and was unemployed prior to his
appointment.
[20]
The deceased contributed R 500, 00 per month to the household and
also bought groceries at the end of the month. The first
plaintiff
confirmed that the deceased was still living in his parental home.
[21]
The first plaintiff testified that she has been doing washing and
ironing work since August 2012. She can only work two days
per week
due to poor health. The first plaintiff suffers from asthma and is
HIV positive.
[22]
The first plaintiff stated that her husband was not employed prior to
July 2008.
[23]
On a question as to how the family of two adults and four children
survived over the years, the first plaintiff testified that
the
second plaintiff renders assistance to community members as a
herdsman and that he sells wood. He is still doing this work
at
present.
[24]
The first plaintiff confirmed that she was not sure how much profit
her eldest two children made from their business and stated
that both
are married at present. They both have children and do not contribute
to the paternal household anymore.
[25]
On a question whether the deceased would not also have married in
future, moved out of the paternal home and provided for his
own
family financially the first plaintiff stated that he was still a
child and that she cannot see into the future.
[26]
She testified that the youngest son, Lucas, was still at school in
2008 and that he is currently unemployed.
Second
Plaintiff:
[27]
The second plaintiff largely confirmed the evidence of the first
plaintiff, but stated that he was informally employed until
1994,
when he was retrenched.
[28]
Until his retrenchment he earned R 1 800, 00 per month.
[29]
He confirmed that his means of income after 1994 was the herding of
cattle and selling of wood. He testified that the eldest
two children
presently provide financial assistance if things got "tough"
at home. The first plaintiff obtained a "piece
job" in
August 2012 to help sustain the family.
[30]
During cross-examination the second plaintiff stated that he was
always able to provide for his family.
[31]
The second plaintiff earns R 50, 00 per week as a herdsman and
receives R 75, 00 for a wheelbarrow load of wood. It is not
clear
exactly how much the second plaintiff earns per month.
[32]
The second plaintiff testified that he was in a position to take care
of his family until the deceased obtained employment.
Upon obtaining
employment, the deceased told him sit back and relax as he would
provide financial assistance in future.
[33]
Notwithstanding the aforesaid, the second plaintiff chose to carry on
working and he is still earning the same amount of money
as he had
over the past twenty years.
[34]
Upon a question whether the second plaintiff would have expected the
deceased to continue contributing after he got married
and had his
own family, the second plaintiff testified that he would not have
expected him to and that it would have depended entirely
on the
deceased.
[35]
That concludes the evidence on behalf of the plaintiffs.
LEGAL
POSITION
[36]
In order to be entitled to maintenance from a child, a parent needs
to show that he/she is in need of a financial contribution
from the
child in order to provide for basic necessities.
[37]
Mr Manala referred me to the test laid down in Smith v Mutual &
Federal Insurance Co Ltd
1998 (4) SA 626
C, in which the court held
that a parent will be entitled to maintenance from a child if the
parent is indigent, in that the parent
must show that he/she is in
want of necessities. At 631 H, the court held that:
"In
order to prove indigence, a stringent criterion of need has to be
established."
[38]
Mr Manala argued that the "stringent criterion" test
applied in the Smith matter should, in view of the basic right
to
housing, food and healthcare guaranteed in the Constitution of the
Republic of South Africa, 1996, be interpreted more liberally
and/or
flexible. Even if parents have an income, they may still be in need
of a financial contribution to cater for their basic
necessities.
[39]
In support of this submission, Mr Manala referred me to two
unreported decisions, to wit Nzame & Another v Minister of
Safety
& Security
[2008] JOL 22587
(D) and Sokhewu & Another v
Minister of Police [2002] JOL9424 (Tk).
[40]
I agree and proceed to apply the aforementioned principle to the
facts of this matter.
[41]
Save for slight contradictions between the evidence of the first and
second plaintiffs, their evidence is not in dispute.
[42]
Perusing the evidence, I have difficulty in establishing the exact
monthly expenses of the plaintiffs. The first plaintiff
earns R 1
200, 00 per month. She works two days a week and spends in total a R
100,00 per week to get to work. That amounts to
R 400, 00 per month.
[43]
According to the first plaintiffs evidence she goes home every second
week. Her taxi fare for a trip home is R 170, 00. This
amounts to R
340 ,00 per month.
[44]
R 740, 00 of the first plaintiffs salary is, therefore, spent on
transport, leaving her with R 460, 00 per month for food and
other
basic necessities.
[45]
This amount is supplemented by the second plaintiffs income. If the
second plaintiff is herding full time, he earns R 200,
00 per month
from this source of income. It is not clear how many loads of wood
the second plaintiff sells per month.
[46]
I do not know whether the plaintiffs pay anything in respect of
accommodation and/or water and electricity. Neither plaintiffs
gave
evidence in respect of their monthly grocery bill.
[47]
The evidence of the second plaintiff does not support a need for
maintenance. The second plaintiff is clearly a man of integrity
for
whom it is of utmost importance to be able to maintain his family. He
testified that nothing has changed in regards to his
earning ability
and/or his monthly income for the past 20 years.
[48]
I am concerned about the fact that the first plaintiff, who has
health problems, has to work away from home. The fact of the
matter
is, however, that the first plaintiff only obtained employment some
four years after the death of the deceased. I do not
know what
changed in the plaintiffs' financial position to necessitate her
obtaining employment.
[49]
Although I have a lot of sympathy for the plaintiffs, there is simply
not enough evidence placed before me to satisfy the onus
of proof
that rests on the plaintiffs.
[50]
The plaintiffs have not proved that they are in need of or want of a
contribution from the deceased to enable them to obtain
the basic
necessities of life.
ORDER:
The
claim is dismissed with costs.
I
N Janse van Niewenhuizen
Acting
Judge of the North Gauteng High Court, South Africa
Attorneys
for plaintiff:
Dikgale
attorneys
Counsel:
Adv. E.M. Manala
Attorneys
for Defendant:
Sekati
Monyane and Partners
Counsel:
Adv. JHP Hattingh