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[2009] ZAGPJHC 18
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Makhuvela obo H v Road Accident Fund (2007/19277) [2009] ZAGPJHC 18; 2010 (1) SA 29 (GSJ) (26 May 2009)
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In the South Gauteng
High Court
Johannesburg
Case 2007/19277
In the matter between
Makhuvela, NA on
behalf of B H Plaintiff
and
The Road Accident Fund
Defendant
Judgment
Malan J
:
[1] This is an action in
which the plaintiff claims in his capacity as legal guardian of his
grandson, B H, damages suffered as
a result of the death of the
child’s father in a motor vehicle collision on 18 September
2004. The parties have agreed on
certain facts and asked for a
decision on a limited issue.
[2] The child was born on
5 June 1999. His mother died on 4 December 2002 prior to the
collision due to unrelated causes. The grandparents
of the child are
‘foster parents’ who have been appointed by court. The
grandmother receives a ‘foster child
grant’ and an old
age grant. The first payment of the foster child grant was received
in August 2005.
[3] It is common cause
that the past and future loss of support suffered by the child as a
result of the collision is the amount
of R 260 720-65. The past
and future value of the foster child grant is R 71 630-99. In
agreeing to these figures the
parties have taken into account
contingencies. The only issue I have to decide is whether the amount
of the foster child grant
should be deducted from the amount agreed
on for loss of support. This raises the question whether payment of
the foster child
grant to the child’s grandmother should be
regarded as
res
inter alios acta
.
The parties have agreed that the amount determined be paid to a trust
to be formed on behalf of the child.
[4] In
Zysset
and Others v Santam Ltd
1
Scott J
said:
‘
The modern South
African delictual action for damages arising from bodily injury
negligently caused is compensatory and not penal.
As far as the
plaintiff’s patrimonial loss is concerned, the liability of the
defendant is no more than to make good the
difference between the
value of the plaintiff’s estate after the commission of the
delict and the value it would have had
if the delict had not been
committed. ... Similarly, and notwithstanding the problem of placing
a monetary value on a non-patrimonial
loss, the object in awarding
general damages for pain and suffering and loss of amenities of life
is to compensate the plaintiff
for his loss. It is not uncommon,
however, for a plaintiff by reason of his injuries to receive from a
third party some monetary
or compensatory benefit to which he would
not otherwise have been entitled. Logically and because of the
compensatory nature of
the action, any advantage or benefit by which
the plaintiff’s loss is reduced should result in a
corresponding reduction
in the damages awarded to him. Failure to
deduct such a benefit would result in the plaintiff recovering double
compensation which,
of course, is inconsistent with the fundamental
nature of the action.
Notwithstanding the
aforegoing, it is well established in our law that certain benefits
which a plaintiff may receive are to be
left out of account as being
completely collateral. The classic examples are (a) benefits received
by the plaintiff under ordinary
contracts of insurance for which he
has paid the premiums and (b) moneys and other benefits received by a
plaintiff from the benevolence
of third parties motivated by
sympathy. It is said that the law baulks at allowing the wrongdoer to
benefit from the plaintiff’s
own prudence in insuring himself
or from a third party’s benevolence or compassion in coming to
the assistance of the plaintiff.
Nor, it would seem, are these the
only benefits which are to be treated as
res
inter alios actae.
In
Mutual
and Federal Insurance Co Ltd v Swanepoel
1988
(2) SA 1
(A) it was held, for example, that a military pension which
was in the nature of a
solatium
for the plaintiff’s non-patrimonial loss was not to be
deducted. ...
It is doubtful whether
the distinction between a benefit which is deductible and one which
is not can be justified on the basis
of a single jurisprudential
principle. In the past the distinction has been determined by
adopting essentially a casuistic approach
and it is this that has
resulted in a number of apparently conflicting decisions. ... But
whatever the true rationale may be, if
indeed there is one, it would
seem clear that the inquiry must inevitably involve to some extent,
at least, considerations of public
policy, reasonableness and justice
... This in turn must necessarily involve, I think, a weighing up of
mainly two conflicting
considerations in the light of what is
considered to be fair and just in all the circumstances of the case.
The one is that a plaintiff
should not receive double compensation.
The other is that a wrongdoer or his insurer ought not to be relieved
of liability on account
of some fortuitous event such as the
generosity of a third party.’
[5] The
Social Assistance
Act 13 of 2004
provides for the rendering of social assistance to
persons and seeks to give effect to the constitutional right of
access to social
security by providing for ‘effective,
transparent, accountable and coherent government in respect of social
security’.
2
The purpose of the Act is among others to provide for the
administration of social assistance and the payment of social
grants.
3
The preamble states that it is enacted since the Constitution
provides that
‘
everyone has the
right to have access to social security, including, if they are
unable to support themselves and their dependants,
appropriate social
assistance, and obliges the state to take reasonable legislative and
other measures, within its available resources,
to achieve the
progressive realisation of these rights.’
The purpose of the Act is
thus not only to secure the support of foster children and other
groups of people but also to ensure equality
and the realisation of
the rights of the child under the Constitution.
4
[6] A ‘foster
parent’ is eligible for a ‘foster child grant’ for
a child ‘for as long as that child
needs such care if (a) the
foster child is in need of care; and (b) he or she satisfies the
requirements of the Child Care Act,
1983...’.
5
A ‘child in need of care is widely defined but includes a child
without parents or a guardian.
6
A ‘foster parent’ is defined as ‘person, except a
parent of the child concerned, in whose custody a foster child
has
been placed in terms of any law, or a tutor to whom a letter of
tutorship has been issued in terms of Chapter IV of the
Administration of Estates Act, 1965
...’. A ‘foster
child’ is
‘
a child who has
been placed in the custody of –
(a) a foster parent in
terms of –
(i) Chapter 3 or 6 of the
Child Care Act, 1983 (Act 74 of 1983); or
(ii) section 290 of the
Criminal Procedure Act, 1977 (Act 51 of 1977); or
(b) a tutor to whom a
letter of tutorship has been issued in terms of Chapter IV of the
Administration of Estates Act, 1965 (Act
66 of 1965)’.
[7] In section 5 the
criteria for the different grants under the Act are specified.
7
In addition, the financial criteria for grants have been determined
by the Minister: the income of a foster parent is irrelevant
in
deciding whether or not to make a foster parent grant.
8
The beneficiary of a foster parent grant must remain in the Republic
and the grant may be suspended in certain circumstances should
he or
she leave the Republic.
9
Where a grant has been abused the matter may be investigated,
10
and payment of the grant may be suspended where the beneficiary is
convicted of abuse or neglect of the child in question or is
found to
be incapable of using the grant for the benefit of the child.
11
A person may also be appointed to receive the grant pending the
substitution of the beneficiary.
12
A grant may not be transferred or encumbered except with the written
consent of the Minister.
13
A beneficiary must receive the full amount of a grant without
limitation before any person may exercise any rights in respect of
it.
14
The amount of a grant may not be attached or subjected to any form of
execution; nor does it form part of the insolvent estate
of the
beneficiary.
15
A foster child grant lapses on the last day of the month in which the
child dies; or on the day on which the last living foster
parent
dies; or on the last day of the month in which the foster child is no
longer in the custody of the foster parent; or at
the end of the
calendar year in which the foster child attains the age of 18 years;
or with effect from the first day of the month
following the month in
which the foster child leaves school.
16
[8] A foster child grant
is given to the
foster
parent and not to the child
itself. It is given to the foster parent to enable him or her to
comply with his or her obligations to the child. The point of
departure in the Act is the ‘family’ which is ‘assumed
to shoulder the primary responsibility for the care of
children’:
17
‘
The state,
however, must provide active support to those families whose ability
to care for children is impaired, as well as to
those children
without family support structures.’
A foster child grant may
obviously be used to support the child but its primary purpose is the
realisation of the constitutional
rights of the child through the
intervention of the foster child parent. It is given to the foster
parent who may spend the whole
or part of it on the foster child.
Foster child grants are financed through moneys appropriated by
Parliament.
18
The Road Accident Fund is similarly funded by public moneys.
19
[9] The child’s
foster parents were appointed by court. There may well be some or
other connection between their appointment
and the death of the
child’s father. That is not decisive of the case. The grant is
payable to the foster parent and not
to the child. It is paid to
enable the foster parents to comply with their constitutional and
other obligations to the child. The
child never has and will never
have a claim to it. In these circumstances the foster parent grant is
indeed
res
inter alios acta
.
[10] The following order
is made:
[a] The defendant is
ordered to pay the amount of R 260 720-65 to the plaintiff with
interest at the rate of 15,5 % per annum
from date of judgment and
costs of suit;
[b] The said amount of R
260 720-65 and interest is to be paid to the plaintiff’s
attorneys in trust for a trust to be
formed on behalf of the child
the terms of which have to be approved by a judge in chambers..
Malan J:
Judge of the High
Court
Counsel for plaintiff: JC
Prinsloo
Plaintiff’s
attorneys: De Vries Inc
Counsel for defendant: A
Louw
Defendant’s
attorneys: MF Jassat Dhlamini Inc
Date of hearing: 20 May
2009
Date of judgment; 26 May
2009
1
1996 (1) SA 273
(C) 277 H – 279 C. This judgment has been
followed frequently. See the cases cited by WA Joubert (founding
editor)
The Law of South
Africa
2ed Vol 8 Part 1
‘Delict’ by JR Midgley and JC van der Walt at para 156.
The older literature is collected by PQR
Boberg
The
Law of Delict
Volume
1 Aquilian Liability
(1984) 577 ff, 609 ff. Critical discussions of the problem are those
of Pieter Pauw ‘
Dippenaar
v Shield Insurance Co Ltd
1979
2 SA 904
(A)’
1979
TSAR
256
and CFC van der Walt
‘Die voordeeltoerekeningsreël – knooppunt van
uiteenlopende teorieë oor die oogmerk
met skadevergoeding’
1980 (43)
THRHR
1.
For a discussion of the deductibility of social security benefits in
English law, see Harvey McGregor
McGregor
on Damages (
2003) paras
35-135 ff.
2
Section 27 of the Constitution provides: ‘Health care, food,
water and social security.— (1) Everyone has the right
to have
access to— (a) health care services, including reproductive
health care; (b) sufficient food and water; and (c)
social security,
including, if they are unable to support themselves and their
dependants, appropriate social assistance. (2)
The state must take
reasonable legislative and other measures, within its available
resources, to achieve the progressive realisation
of each of these
rights. (3) No one may be refused emergency medical treatment.’
3
Section 3.
4
Section 28 of the Constitution provides: ‘Children.— (1)
Every child has the right — (a) to a name and a 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; (e) to be protected from exploitative labour practices;
(f) not to be required or permitted to perform
work or provide
services that — (i) are inappropriate for a person of that
child’s age; or (ii) place at risk the
child’s
well-being, education, physical or mental health or spiritual, moral
or social development; (g) not to be detained
except as a measure of
last resort, in which case, in addition to the rights a child enjoys
under sections 12 and 35, the child
may be detained only for the
shortest appropriate period of time, and has the right to be —
(i) kept separately from detained
persons over the age of 18 years;
and (ii) treated in a manner, and kept in conditions, that take
account of the child’s
age; (h) to have a legal practitioner
assigned to the child by the state, and at state expense, in civil
proceedings affecting
the child, if substantial injustice would
otherwise result; and (i) not to be used directly in armed conflict,
and to be protected
in times of armed conflict. (2) A child’s
best interests are of paramount importance in every matter
concerning the child.
(3) In this section “child” means
a person under the age of 18 years.’ See MP Olivier, N Smit
and ER Kalula
Social
Security A Legal Analysis
(2003)
377 ff.
5
Section 8. In addition, the Regulations published in RG 31356 of 22
August 2008 stipulate that a foster parent is eligible for
a foster
grant if the child remains in his or her custody and the foster
parent is a South African citizen, a permanent resident
or a
refugee. However, a foster parent is not eligible for a foster child
grant ‘for more than six children if the children
are not his
or her siblings or blood relatives’ (reg 7).
6
Section 14(4)(a) of the Child Care Act 74 of 1983. Sections 33 ff
contain specific provisions dealing with foster children.
7
A foster child grant amounts to R 650 per month (GN 1243 in GG 31630
of 21 November 2008).
8
Regulation 18 and Annexure C to it. Para (2) of the Annexure
provides: ‘A foster parent qualifies for a foster child grant
regardless of such foster parent’s income.’ See Olivier,
Smit and Kalula para 12.3.2 at 384-5: ’The foster-child
grant
is – strictly speaking – not a means-tested grant, as
only the means of the foster-child are considered and
not those of
the foster-parent as well.’
9
Section 16.
10
Section 19.
11
Section 19(3).
12
Section 19(3)(b).
13
Section 20(1).
14
Section 20(3).
15
Section 20(5).
16
Regulation 28(3).
17
Olivier, Smit and Kalula 378.
18
Section 2(4) of the Act.
19
Section 5
of the
Road Accident Fund Act 56 of 1996
deals with the
financing of the fund and provides: (1) The Fund shall procure the
funds it requires to perform its functions
— (a) by way of a
Road Accident Fund levy as contemplated in the Customs and Excise
Act, 1964; and (b) by raising loans.
(2) The Road Accident Fund levy
paid into the National Revenue Fund in terms of the provisions of
section 47 (1) of the Customs
and Excise Act, 1964, less any amount
of such levy refunded under that Act, is a direct charge against the
National Revenue Fund
for the credit of the Fund.’