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[2011] ZAFSHC 113
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Mabaso v Road Accident Fund (6620/08) [2011] ZAFSHC 113 (2 June 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No. : 6620/08
In the appeal between-
NGZINYANA
SARAH MABASO
…...............................................................................
Appellant
and
ROAD
ACCIDENT FUND
…......................................................................
Respondent
HEARD
ON:
25
MAY 2011
DELIVERED
ON:
02
JUNE 2011
MOLOI, J
[1] This is a claim for
compensation by the plaintiff for loss of support arising out of a
motor accident in which the plaintiffs
brother was killed. The merits
have been conceded and this court is called upon to determine the
quantum of the compensation, in
addition the plaintiff claims an
amount of R12 000.00 as costs of the funeral.
[2]
The plaintiff, a 52 year old woman was a sister of the deceased,
Lanka Samuel Mabaso. who was killed in a motor accident on
22 Oktober
2007. The deceased was unmarried and had no children. The plaintiff
stayed at her parental home at Koppies together
with the deceased,
her younger sister, Mirriam, and three children of her deceased
sister, Elizabeth. In respect of the children
she was receiving a
foster grant of R2 180.00. She was doing washing and ironing for
people in her township and had an income of
approximately R600.00 per
month. Her deceased brother was employed as a debt collector by Eland
Furnishers at Sasolburg and earned
an amount of approximately R3
000.00 per month. Her deceased brother gave her an amount of R1
500.00 every month as support. She
cared for all the people living
with her though her younger sister, Mirriam, was living with her
boyfriend.
[3]
When her brother died, she did not receive any monies from his
employer and he had no policies, nor funeral scheme. Some family
members contributed an amount of R8 000.00 towards the burial costs
and an amount of R4 000.00 is still owing to one Pitso, the
owner of
a funeral parlour that conducted the funeral. As recent as March
2011, she undertook to pay Mr Pitso the outstanding amount
but had to
date not paid any thing as she has no money. Herself used R30C.00 to
buy food for the funeral She. however, did not
have the invoices for
the funeral expenses and she could not call Mr Pitso as a witness as
he was sick.
[4] Her further evidence
was that since the death of her brother, she did not have enough
income to cover her needs and did not
receive old age pension. She
could not get full-time employment. She was hopeful that when the
foster children grew up. they would
help her. She needed the R1
500.00 to augment her income as food is getting more and more
expensive. Since the death of her brother
it has become difficult to
survive. She had passed Std 6 at school and had no other skills hat
would enable her to earn a better
income. She had no other source of
income.
[5]
From the arguments advanced before me, it appeared the parties agreed
that there was indeed a duty of support on the deceased.
Mr Coetzer,
for the defendant, submitted that the duty on the deceased to support
the plaintiff was restricted and could only arise
if there was
evidence that the plaintiff was indigent, that she was not in the
position to support herself and that the deceased
was in the position
to support her:
SMITH
v
MUTUAL
&
FEDERAL
INSURANCE
CO.
LTD
1998(4)
SA 626(C) at 632 D-E. He strongly argued that if anything the
evidence showed that the plaintiff was poor but certainly
not
indigent. He submitted there was a difference between the two
concepts. Clearly his argument was influenced by the statement
of
Gihwala
A J
in
the
SMITH
case
supra
at
632 D where he said
"To
be indigent means to be in extreme need or want whereas to be poor
means having few things or nothing".
That statement defies the
English language which defines indigent" as:
"(a)
Lacking in what is necessary, falling short of proper standard,
deficient;
(b)
destitute of, void of;
(c)
in need of, requiring the aid of;
(d)
Lacking the necessities of life, characterised by poverty, poor,
needy
-
An indigent or poor person"
See
THE
NEW SHORTER OXFORD ENGLISH DICTIONARY
Vol.
1 (AM) Clarendon Press, Oxford, 1993 ed.
[6]
Mr Coetzer further submitted that since the plaintiff's income, the
contribution made by the deceased and the foster grant were
pooled
together for the common use for all five occupants of the house, if
anything at all, the deceased alleged contribution stood
to be
devided by 5(five) in order to calculate the amount due to
the
plaintiff. Ms Wright, for the plaintiff, correctly pointed out that
the basis of the claim is patrimonial loss the plaintiff
had suffered
as a result of a delict and a party was entitled to that which she
has proven as her loss. There being no evidence
to gainsay the
plaintiff's evidence as to the amount given to her as maintenance by
the deceased, it would be improper to allocate
that amount
proportionately especially as the three children had no claim for
maintenance against the deceased.
[7] The plaintiff is 52
years old. She schooled up to Standard 6 and has no other
qualification. She could not find a permanent
employment and got a
total amount of R600.00 per month form doing washing and ironing for
her neighbours. The deceased used to
assist her with R1 500.00 per
month. For the deceased to do so, he must have realised that there
was no way that the plaintiff
could pull through with the amount she
earned. The only other amount the plaintiff received was the foster
care grant which is
equally insufficient for a household the size we
are dealing with. The plaintiff testified that survival was difficult
since the
death of the deceased. All the above, let alone the
municipal rates and taxes, water and electricity etc. are more than
enough
indicators that the plaintiff is, indeed, indigent and in
need.
[8] The other claim of
the plaintiff consist of funeral expenses in the amount of R12
000.00. Of this amount, the other family members
already contributed
R8 000.00. The only amount still outstanding is the R4 000.00 owing
to Mr Pitso. The plaintiff has recently
l.e in March 2011 undertaken
in writing to pay the amount to Mr Pitso. The argument that Mr
Pitso's claim against the plaintiff
had prescribed and that she did
not need to pay it does not hold water in the light of her
undertaking in writing as recently as
March 2011 and the fact that it
cannot off-set the defendant's liability to the plaintiff, the claim
having been lodged way back
in 2008 and the defendant having chosen
to refuse to pay. The plaintiff also paid and amount of R300.00
towards the food needed
for the funeral. This amount was not
questioned.
[9]
The calculation of the past and future loss of support suffered by
the plaintiff was done by an actuary who submitted a report
admitted
in evidence as Exhibit A. The report was so admitted in evidence by
agreement and no aspect of it was put in issue nor
disputed. The
calculations above indicate that the necessarv contingencies were
taken into account at acceptable levels.
[10] As a consequence the
following orders are made:
10.1.
The defendant is ordered to pay to the plaintiff as loss of
maintenance
and amount of R257 392.00:
10.2.
The defendant is ordered to pay to the plaintiff as funeral
costs
an amount of R4 300.00:
10.3. The defendant is
ordered to pay the costs.
K.J.
MOLOI, J
On
behalf of the Plaintiff:
Mr.
CAJ Van Rensburg
Rosendorff
Reitz Barry
Third
Street 6
BLOEMFONTEIN
9300
On
behalf of the Defendant: Mev. S Jones
Honey
Attornevs
Eeufees
Road
BLOEMFONTEIN
9300