Fosi v Road Accident Fund (1934/2005) [2007] ZAWCHC 8; 2008 (3) SA 560 (C); (21 February 2007)

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[2007] ZAWCHC 8
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Fosi v Road Accident Fund (1934/2005) [2007] ZAWCHC 8; 2008 (3) SA 560 (C); (21 February 2007)

IN THE HIGH
COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE
EASTERN
CIRCUIT LOCAL DIVISION AT GEORGE)
CASE NO.:1934/2005
REPORTABLE
In
the matter between:
CORDELIA
NTOMBIZABUNTO FOSI PLAINTIFF
And
ROAD
ACCIDENT FUND 1
ST
DEFENDANT
KHOLISWA
FOSI N.O. 2
ND
DEFENDANT
JUDGMENT DELIVERED ON 21
FEBRUARY 2007
DLODLO,
J
INTRODUCTION
The Plaintiff, an unemployed
female person born on 13 September 1949 and who presently resides at
52 Mandela Street, Hillview, Plettenberg
Bay, sues in this action in
her personal capacity as mother and natural guardian of her late son
Phumezo Sonnyboy Fosi (“the
deceased”). The First Defendant is
the Road Accident Fund, an entity established in terms of Section
2(1) of the Road Accident
Fund Act 56 of 1996 (“the Act”) upon
which the rights and obligations of the Multilateral Motor Vehicle
Accident’s fund,
established by Act 93 of 1989 as amended, have
devolved. The First Defendant’s principal place of business is at
7
th
Floor, 1 Thibault Square, Long Street, Cape Town. The
Second Defendant is an adult female person cited in these
proceedings in
her
nomino officio
capacity as the executrix
of the deceased’s estate duly appointed as such in terms of
Regulation 4(1) of the Regulations for Administration
and
Distribution of Estates of Deceased Blacks published under
Government Notice No. R200 of 1987; the Second Defendant is merely
cited as an interested party.
The cause of action emanates
from a motor vehicle accident at or near Hoekwinkel Road,
Wilderness, involving the insured vehicle
bearing registration
letters and numbers CAW24152 which at that time was driven by one
Salmon Gerber and a motor cycle with registration
letters and
numbers CA37795 ridden by the deceased. It is averred in the summons
that during his lifetime the deceased was unmarried
and was under a
legal duty to support and maintain the Plaintiff who was indigent
and had no other means of support and maintenance,
and that the
deceased did in fact so support and maintain the Plaintiff.
The action is resisted by
the First Defendant on a rather narrow aspect. I say so because the
First Defendant in the Rule 37 meeting
conceded that the collision
was caused by some negligence on the part of the insured driver,
thereby rendering it unnecessary for
the Plaintiff to prove this
aspect. What has been placed in dispute is whether or not the
Plaintiff can be said to have been indigent
such that the deceased
had a duty in law to support and maintain her. Whether the deceased
was under a duty to maintain his mother
at the time of his death is
critical to the Plaintiff’s case, because if such duty cannot be
established, it cannot be imputed
to the First Defendant. Indeed a
child’s duty to support his or her parents is recognised in our
law. Numerous authorities supporting
this principle are summarised
and discussed in
Oosthuizen v Stanley
1938 AD 322.
According to these authorities, a child’s duty to support a parent
arises if both parents are indigent and are unable to support
themselves and if the child is able to provide support. See at 327-8
Oosthuizen v Stanley
(
supra
). To succeed the
Plaintiff had to prove that each of these requirements was
satisfied.
THE EVIDENCE
The Plaintiff, the mother of
four (4) children, was born in a rural area of the Eastern Cape,
called Edutshwa on 13 September 1949.
She grew up and attended
school up to standard five (5) at her place of birth. The only
language she can understand and speak is
Xhosa. She got married by
way of customary marriage to one Johnson Fosi. The names of the
children born out of their marriage are
hereunder given in the order
of their birth, namely: Phumezo; Xoliswa ; Monwabisi and Lungiswa.
During the period 1998/1999
the Plaintiff and her family lived in Edutshwa. Already at that stage
her husband was no longer employed
but he received a pension
amounting to between approximately five hundred and twenty rands
(R520-00) and five hundred and forty rands
(R540). According to the
evidence Johnson Fosi was already an alcoholic at that stage and
would use all his pension money on alcohol.
During the same period
mentioned above, the Plaintiff worked at Thembaza earning thrity
rands (R30-00) per forth night. She would
spend ten rands (R10-00)
on bus fare and would effectively be left with twenty rands (R20-00)
on which amount she and her family
had to live. Asked if there were
no better paying jobs at the time, she responded that she was
disadvantaged by her inability to
speak and understand English and
Afrikaans and she therefore could not secure alternative and better
paying employment. She then
lived in a mud-house together with the
family. This was a traditional house without basic necessities like
running water, toilet
and electricity. The water had to be fetched
from the local river. They used firewood for making fire outside
where cooking had
to be done. The Plaintiff was struggling in
maintaining the household whilst Johnson used his pension money at
shebeens on alcohol
for himself. In order to survive the Plaintiff
would time and again go to her parental home in order to be helped
with food for
the family.
At times her brother would
render assistance. The local church used to give her some hand-outs.
She used this food to feed not only
herself and the children, but
also Johnson. Asked why Johnson, she added she was married to this
man and in keeping with her tradition,
it remained a duty on the
shoulder of a mother to ensure that there was food in the house. The
Plaintiff had no control over Johnson’s
pension money at all. She
had consistently spoken to Johnson who never mended his ways. Even
clothing for the Plaintiff and the
children would be donations of
old clothing from the church. Before the deceased started to work
life was totally unmanageable
for the Plaintiff as the church and
her relatives who helped with basic necessities like food, could not
do it all the time.
However, in November 1998,
when the Plaintiff’s son, Phumezo, the deceased, was employed, the
Plaintiff’s life totally changed
for the better. The deceased was
then employed by the Department of Forestry on a reasonably good
salary. This is evident from
the fact that every month he would send
to his mother the sum of one thousand rands (R1000-00), an amount
remarkably substantial
regard being had to what the Plaintiff used
to earn as income. According to evidence the deceased sent this
money to the Plaintiff
every month via the post office without fail.
This was the position until an interruption was caused by the
deceased’ sudden
demise in a motor vehicle accident. When the
Plaintiff was asked why did the deceased send her money, she
responded by telling
the Court that the deceased had to send money
because he knew “where he was coming from and who had given birth
to him”. The
money the deceased sent to the Plaintiff was spent by
the Plaintiff on general maintenance for herself and the younger
children
she still had to care for. The deceased was a non-smoker
and non-drinker, he enjoyed good health. There were no plans known
to
the Plaintiff that the deceased intended to marry, nor was the
Plaintiff as a mother aware of any girlfriend to the deceased.
When her deceased son died
in a motor vehicle accident, the Plaintiff and her family were still
living at Edutshwa, Kingwilliams
Town. However, upon the death of
her son, the pressure on the Plaintiff became so unbearable that she
moved to Plettenberg Bay
looking for some opportunity of employment.
This she did as she could no longer get one thousand rands
(R1000-00) which the deceased
made available to her for support. Her
position reverted to what it used to be before her son (deceased)
started working. The family
split-up in the sense that as she moved
to Plettenberg Bay, she took along her youngest daughters Lungiswa
and Xoliswa, whilst
her other son, Monwabisi, remained at Edutshwa
with his father, Johnson. The latter subsequently died. At
Plettenberg Bay the Plaintiff
was unsuccessful in obtaining any
jobs. Apart from being old (according to what would be said by
employers) she still had the same
language problem. She could not
speak or understand Afrikaans, a language commonly spoken at
Plettenberg Bay.
She eventually got a job
that allowed her to earn thirty rands (R30-00) per day. However,
twenty rands (R20-00) would be deducted
for transport. This saw her
earn at least four hundred and eighty rands (R480-00) per forth
night. She subsequently lost this job
and she now does washing for a
school teacher who pays her forty rands (R40-00) per day. She only
performs this job four (4) times
in a month. Xoliswa now works and
does support her mother, the Plaintiff, at the rate of six hundred
rands (R600-00) per month.
In conclusion the Plaintiff (if she gets
money)buys maize meal and they cook and eat porridge as it is. She
painstakingly explained
to the Court how at times they would go to
bed without food because there was no food; they would merely drink
water and go to
bed. The Plaintiff applied for a grant from the
Government but it was turned down. From the death of the deceased to
date, the
Plaintiff received no money from the employers, except for
two hundred and fifty rands (R250-00) from the Provident Fund.
INDIGENCY/DESTITUTION
(10)I fully agree with Mr.
Frost that the Plaintiff was a good and credible witness. The Court
was impressed with her testimony, her
simplicity and sincerity.
Reliance can indeed be placed on what she told the Court. Mr. Niekerk
did not express a contrary view in
this regard. I accept her
evidence. I must, however, consider whether this evidence does
succeed on a balance of probabilities to
establish that the Plaintiff
in the instant matter is indigent and whether at the time of the
deceased’ demise, the latter was
under a duty to support her.
(11) The test was set out in
Smith v Mutual & Federal Insurance Co. Ltd
1998 (4) SA 626(C)
at 632 D-E as follows:
“
To
be indigent means to be in extreme need or want whereas to be poor
means having few things or nothing. Accordingly, when the plaintiff
pleads indigence, it is not sufficient to show that the plaintiff
lives on very little or nothing (vide World Book dictionary). The
plaintiff must prove something more. The plaintiff must prove that
there is an extreme need or want for the basic necessities of
life.”
The test set out
supra
is, in my view, more onerous and difficult to prove compared to the
pronouncements made by our Courts in earlier decisions. I have
in
mind for an example, the observation by Bekker J in
Wigham v
British Traders Insurance Co Ltd
1963(3) SA 151 (W) at 153,
namely:
“
The authorities
furthermore make it clear that in order to succeed a plaintiff is not
required to show that she would be reduced to
abject poverty or
starvation and be a fit candidate for admission to a poor house
unless she received a contribution. The Court must
have regard to her
status in life, to what she has been used to in the past and the
comforts, conveniences and advantages to which
she has been
accustomed… The aim and object is to place the dependants in as
good a position as regards maintenance as they would
have been if the
deceased had not been killed, to which end material losses as well as
benefits and other prospects must be considered.”
(12) The two cases referred
to
supra
, that is
Smith’s
case and
Wigham’s
case, both dealt with claims against insurers by parents for
damages arising from loss of maintenance from deceased children. It
is
of note that one of the authorities referred to in
Wigham
case
supra
, namely
Oosthuizen v Stanley
1938 AD,
is judgment by Tindall JA who wrote as follows at 327-8:
“
There
is no doubt on the authorities which are quoted in Waterson v
Mayberry,
1934 T.P.D. 210
, that the plaintiff had to prove not only
that either Stephanus or Elsie contributed to his support but that
there was a legal duty
to contribute because his circumstances were
such that he needed the contribution. The liability of children to
support their parents,
if these are indigent (inopes), is beyond
question; See Voet, 25.3.8; Van Leeuwen, Censura Forensis, 1.10.4.
the fact that a child
is a minor does not absolve him from his duty,
if he is able to provide or contribute to the required support; See
In re Knoop,
10 SC 198.
Support (alimenta) includes not only food and
clothing in accordance with the quality and condition of the persons
to be supported,
but also lodging and care in sickness; See Voet
25.3.4; Van Leeuwen, Censura Forensis, 1.10.5; Brunnemann, in A
Codicern 5.25. Whether
a parent is in such a state of comparative
indigency or destitution that a Court of law can compel a child to
supplement the parent’s
income is a question of fact depending on
the circumstances of each case. I find, in an old Scottish case
quoted by Fraser, Parent
and Child, 3
rd
ed. P.137, and in Green’s Encyclopaedia of Scots Law, vol.1 p.300,
that a widow having an annual income of £60 was held to be
not
entitled to claim additional aliment from a son who had an income of
£1 500 a year. No doubt the higher value of money 80 years
ago was
an important factor in the failure of the parent’s claim in that
case. However, though each case must depend on its own
peculiar
circumstances, that decision supports the view, I think, that the
parent must show that, considering his or her station
in life, he or
she is in want of what should, considering his or her station in
life, be regarded as coming under the head of necessities.”
(13) I am aware that several
claims by parents that their children were under a legal duty to
maintain them have failed essentially
because the parents did not
succeed to prove that they were indigent. Cases such as
Petersen
v South British Insurance Co. Ltd
1967(2) SA 236 (C) and
Anthony & Another v Cape Town City Council
1967(4)
SA 445 (A) are examples of cases where such claims did not succeed. I
hold the view though, that these cases did not establish
an absolute
line between indigent and “mere” poverty when one has to make a
determination of the duty of the children to support
and maintain a
parent. Such cases must necessarily be read in the light of their own
facts. Simplistically put, the deciding principle
seems to be whether
the parent can prove that he or she was dependent on the child’s
contribution for the necessities of life.
Indeed what constitutes
necessities of life will in turn depend on the individual parent’s
station in life. I fully agree with
the observations made by
Schreiner AJ (as he then was) in an unreported Free State Judgment,
Burger v Die Padongelukkefonds
, Case number 2223/1999
where the Judge observed as follows:
“…
..Die
vraag of ‘n ouer in sodanige staat van nooddruftigheid (indigency,
destitution) is dat die ouer geregtig is op onderhoud van
die kind
is, ‘n feitlike vraag, afhangend van die omstandighede van elke
saak, maar die ouer moet aantoon dat, …”considering
station in
life, he or she is in want of what should be regarded as coming under
the head of necessities”.”
Rabie JA in
Van Vuuren
v Sam
1972(2) SA 633 (AD) at 642F correctly spelt out what
may be regarded as constituting necessities of life when he stated:
“…
Dit
is natuurlik waar, …dat noodsaaklike behoeftes en behoeftigheid
relatiewe begrippe is, maar daar dien terselfdertyd op gelet
word dat
die verlenging van hulp beperk is tot wat as die mens se basiese
behoeftes beskou kan word, nl. voedsel, klere, onderdak
en
geneesmiddels en versorging in tyd van siekte (Voet 25.3.4;
Oosthuizen v Stanley, supra).”
(14) From the evidence in the
instant matter it is clear that the income the Plaintiff regularly
received from her deceased son enabled
her to put bread on the table,
buy some clothing for herself and her younger children etc. Mr.
Niekerk did his best in cross-examining
the Plaintiff but her
evidence remained intact. In fact each question put to her in
cross-examination elicited a further exposition
of her unfortunate
life without the support the deceased gave her. The undisputed
evidence in this matter satisfies me that the Plaintiff’s
son
indeed owed her a duty of support at the time he died. Although she
also had some hand-outs from the church and some sympathetic
persons
in her maiden home, the deceased’ contributions were clearly so
required that she could not do without same. This contribution
by the
deceased was used (as evidence indicates) to assist the Plaintiff to
acquire the bare minimal of the basic necessities of
life. The
Defendant has not suggested that these contributions made by deceased
to his mother’s modest income of R30-00 a week,
were merely
gratuities which enabled the mother and those nearer and dependant on
her, to indulge in luxurious lifestyle which they
would not have been
able to afford but for the contributions. Mr. Johnson Fosi was like a
dead man. He was never there for his family.
Like many alcoholics, he
turned his back on those things that were his responsibility. Mr.
Niekerk questioned the Plaintiff why she
did not proceed against
Johnson in the maintenance Court. Her answer was that in keeping with
tradition, she could not do so. Even
if she lodged the complaint,
this alcoholic would not comply with the Court order. The result
would be that he could end up in prison.
No money would become
available to the Plaintiff anyway.
(15) The evidence in this
matter further satisfied me that the Plaintiff’s own income
referred to
supra
was totally insufficient and inadequate not
only to sustain her but also to give her the modest additional
succour she needed to
preserve her human dignity. There were no
resources to replace the contribution the Plaintiff was deprived of
when the deceased untimely
died. I say so being mindful that there is
only now another child who recently has been employed and who does at
times give the plaintiff
some money. However, the liability of other
siblings is not relevant to a claim against one of them. See:
Khan
& Another v Padayachee
1971(3) SA 877(W). Even if the
Plaintiff now gets some income from her younger daughter, that alone
would not be fatal to the Plaintiff’s
case.
AFRICAN LAW PERSPECTIVE
(16) There is yet another
consideration. Indigenous African Customary Law has occupied an
unfortunate position in the legal history
of our Country. The fact is
that it was hardly recognised by the law makers and was accordingly
scarcely applied in the South African
Courts. It enjoyed the status
of being known that it existed and its continued existence was merely
tolerated as a necessary evil.
African law obligates a child who is
financial able to do so to provide maintenance to his/her needy
parents. When an African (black)
provides support and education to
his/her son/daughter, he/she is not only under a duty to do so on the
strength of South African
legal system, but custom also obliges such
a parent. In fact, in African tradition to bring up a child is to
make for oneself an
investment in that when the child becomes a
grown-up and is able to participate in the labour market, that child
will never simply
forget about where he came from. That child without
being told to do so, will make a determination (taking into account
the amount
he/she earns, her travelling to and from work, food to
sustain himself and personal clothing etc) of how much he must send
home to
the parents on a monthly basis. This duty is inborn and the
African child does not have to be told by anybody to honour that
obligation.
In fact, that is the trend in almost all black families
in rural areas including the so-called urban black communities. In
each family
there would invariably be one or two sons or daughters
who is/are employed. Those children in employment provide their
individual
parental home with the hope in life in that they monthly
and without fail send money to their parents so that basic
necessities of
life are afforded by the latter. It is for this reason
that the Plaintiff was puzzled on being asked in cross-examination,
why did
the deceased send her money. Her answer was rather telling,
“because the deceased knew where he was coming from”. The duty of
a child to support a needy and deserving parent is well-known in
indigenous/customary law. It is observed by such children. There
is
always an expectation on the part of a parent that his child will
honour this duty.
(17) In African law it is
most certainly an actionable wrong on the part of the child who is
financially able, not to provide support
to his needy and deserving
parents. Quite apart from it being an actionable wrong, failure to
maintain one’s parents by a child
who is financially able to do so,
is, in black traditional law contrary to the public policy (
contra
bonos mores
). The parent can successfully civilly proceed against
such a child in traditional courts. It is also a morally
reprehensible act
to fail to maintain one’s own parents who are in
need of such maintenance. If the parents were to decide not to lodge
a complaint
before the tribal Court, but opt somehow to alert members
of the immediate family about this predicament, such a child would be
ostracised
and be looked down upon as a person who has no ubuntu. The
latter scenario is rather rare because as stated above every African
child
is born with this duty consciousness never to forget his/her
roots. It is unacceptable to African traditional law that the death
of a child who is employed and who is conscious of his duty to
support and sustain his parent, should not entitle the parent who
has
lost such support as a result of the untimely death of such a child
consequent upon any wrongful act on the part of anybody including
an
accident caused by a negligently driven motor vehicle (as in the
instant matter).
(18) It will be noted that I
have used both descriptive words, namely indigenous and customary law
supra
. I personally prefer to call this legal system African
law. I have said
supra
that African customary law was
“recognised” and merely tolerated in the past. To be precise,
this was nothing but partial recognition
because in many instances
Presiding Officers were allowed a choice as to which legal system
they should use in a matter which was
the subject of dispute between
black people. The colonial masters also partially recognised
customary law and it was applied in matters
selectively. This is
evident from the following dictum in the then Privy Council decision
of
Oke Lauripekun Laoye v Amao Ojetunde
1944 AC 170:
“
The policy of the
British Government in this and other respects is to use for purposes
of the administration of the country, the native
laws and customs in
so far as they have not been varied or suspended by Statutes or
Ordinances. The Courts which have been established
by the British
Government have the duty of enforcing these native laws and customs
so far as they are not barbarous, as part of the
law of the land.”
We know that prior to 1988
the position regarding the recognition and application of customary
law was also rather limited in that
there was a provision made in the
Black Administration Act 38 of 1927 for the limited recognition of
customary law by a Court structure
especially established for dealing
with disputes between blacks. These were called Commissioners’
Courts (See: cf
Olivier Die Privaatreg van die Suid-Afrikaanse
Bantoetaalsprekendes
610-651);
Bekker Seymour’s
Customary Law in South Africa
4-68;
Bennett Customary
Law
63-136) which were presided over by mainly white males
not necessarily legally qualified but often those who had some
history of
having some form of formal understanding of the customs
and practices of black people. They were also not obliged to apply
customary
law in the resolution of disputes, but they had an option.
It is apposite that I quote the relevant section of the Black
Administration
Act in this regard to illustrate that there was never
a compulsion to apply customary law.
(19) Section 11 of the Black
Administration Act provided as follows:
“
11(1)
Notwithstanding the provisions of any other law it shall be in the
discretion of the Commissioners’ Courts in all suits or
proceedings
between Blacks involving questions of customs followed by Blacks, to
decide such questions according to the Black law
applying to such
customs except in so far as it shall have been repealed or modified:
Provided that such Black law shall not be opposed
to the principles
of public policy or natural justice: Provided further that it shall
not be lawful for any court to declare that
the custom of lobola or
bogadi or other similar custom is repugnant to such principles.
(2) In any suit or
proceedings between Blacks who do not belong to the same tribe; the
Court shall not, in the absence of any agreement
between them with
regard to the particular system of Black law to be applied in such
suit or proceedings, apply any system of black
law other than that
which is in operation at the place where the defendant or respondent
resides or carried on business or is employed,
or if two or more
different systems are in operation at that place, not being within a
tribal area, the Court shall not apply any
such system unless it is
the law of the tribe (if any), to which the defendant or respondent
belongs.”
(20)Schreiner JA (as he then
was) dealing with section 11 of the Black
Administration Act 38 of 1927
in
Ex Parte Minister of Native Affairs: In
Re
Yako v Beyi
1948 (1 ) AD 388 at 396-397 made the
following
observation:
“
No
doubt when colonisation takes place among a people having their own
customary law, and when the law of the colonists becomes the
law of
the land, difficult questions of policy are likely to arise as to the
proper extent of recognition and use, at any particular
period, of
the customary law of the native inhabitants; and presumably South
Africa has not been exceptional in this respect. Faced
by such
difficulties, Parliament, in enacting sec. 11(1) appears to have used
a device which may have been expected to permit of
some elasticity
and provide scope for development, so as to achieve the primary
desideratum of an equitable decision between the
parties without
laying down any hard and fast rule as to the system of law to be used
to attain that end. ….. On the contrary,
the indications are rather
that common law was intended to be applied unless the native
Commissioner in his discretion saw fit in
a proper case to apply
native law…..Framed as it is, it appears to me that the sub-section
assumes that the native commissioner
should in general apply common
law and on that assumption empowers him in a proper case to apply
native law.”
Schreiner JA (as he then was)
was of the view that it would be wrong to apply section 11(1) without
regard to the circumstances of
particular cases. In his view, it
would not be a proper exercise of the discretion given by that
sub-section for a native commissioner
to hold that all cases of
seduction should be dealt with as if the parties were living under
primitive tribal conditions.
(21) The recommendations of
the Hoexter Commission, thankfully, led to the abolition of the
Commissioners’ Courts throughout the
Country. All matters of South
African litigants then fell to be litigated before the Magistrate’s
Court. One would have thought
that the abolition of the
Commissioners’ court must necessarily result to full recognition
and application of customary law in
this Country. That was not to be.
Strangely section 11 of the black Administration Act which obviously
must be taken to have died
with the abolition of the relevant Courts
it empowered, was resuscitated in that it was replaced by
section
54A(1)
of the
Magistrate’s Courts Act 32 of 1944
.
Section 54A(1)
of
the
Magistrate’s Courts Act contained
virtually the same provision
which constituted the content of the then defunct section 11 of the
Black Administration Act. Again
no full recognition and application
of customary law came to the fore.
(22) The coming to the
statute book of the law of Evidence Amendment Act 45 of 1988 was
indeed welcomed in black communities because
it brought hope that may
be eventually their system of law was to be fully recognised and
applied. In terms of section 2 of the Law
of Evidence Amendment Act,
section 54A
of the
Magistrate’s Courts Act was
repealed. Section
1(1) of the Law of Evidence Amendment Act, in essence, is identical
to section 11(1) of the Black Administration
Act (referred to s
upra
)
with the significant extension that all South African courts are
since 1988 empowered to apply customary law (and foreign law)
irrespective
of whether one or both parties were blacks. But the
essential ingredients of the old section 11 of the Black
Administration Act persisted
even in this section 1 of the Law of
Evidence Amendment Act.
(23) Those are that Courts
were merely empowered to take judicial notice of the law of a foreign
state and of African law in so far
as such law can be ascertained
readily and with sufficient certainty, provided that such law may not
be opposed to the principles
of public policy or natural justice etc.
Taking judicial notice of customary law is not “recognition” and
it hardly empowered
the Courts to fully recognise and apply such
customary law. Presiding Officers (Magistrates essentially) were not
really obliged
to take judicial notice of customary law in cases
where it is an indicated systems of law. They were armed with a
discretion in this
regard. I fully associate myself with observations
I have come across in
Joubert- LAWSA
first Reissue Vol 32 at
page 17, namely:
“…
Because
of, amongst other things, the lack of expertise and the reluctance to
require a compulsory university course in customary
law as a
prerequisite for the appointment of magistrates or to provide for
compulsory in-service training for practising magistrates,
…insufficient application of customary law by magistrates will
continue. The same applies to the High Courts.”
So much for the unfortunate
history. We now live in a constitutional democracy. Customary law
should not only be tolerated (as was
the position in the past) but it
must be recognised, applied and married to the existing Roman-Dutch
legal system currently in place
in this Country.
(24) It took the promulgation
of an interim constitution (Act 200 of 1993) that customary law
became a matter of constitutional importance
in the legal history of
this Country. It was at this stage that it became apparent that
customary law was now being treated as a
foundation of the South
African legal system virtually on the same terms as Roman-Dutch law.
The position presently is that section
211(3) of the Constitution of
the Republic of South Africa 108 of 1996 determines that all Courts
in South Africa must apply customary
law where appropriate, subject
the constitution and legislation that deal in particular with
customary law. The Constitution is the
supreme law in this Country.
Finally, full recognition has been given to customary law. The Courts
are obligated to apply it in disputes
where applicable. Full
recognition and the obligatory application of customary law in
instances where it is indeed applicable, comes
with an added
obligation to the administrators of justice (Magistrates and Judges)
to actively engage in the development of customary
law. I am thus
constitutionally enjoined to develop customary law and bring it to
the same level reached by common law. The Plaintiff
in this matter is
an African (Black) person. The deceased was a Black person. I fail to
see why must I not apply customary law that
governed them.
(25) I have shown above that
customarily the child who is financially able to do so, is under an
obligation to maintain his needy
parent. There is no reason, in my
view, why consideration should not be given to this portion of
customary law in the determination
of liability of the Road Accident
Fund towards a parent who has lost a child in a motor vehicle
accident caused by the negligent
driving thereof. I hold therefore
that even on this consideration, the Road Accident fund cannot escape
liability towards the plaintiff
in this matter.
(26) Grogan AJ in an
unreported judgment, (
David Clannon Jacobs v Road Accident
Fund
) handed down in the South Eastern Cape Local Division)
surprisingly came very nearer to what is very similar to the
exposition I
have given above when he made the following observation:
“
It would in my view
be invidious were this Court to rule that the deceased had no duty to
support his father when he had voluntarily
assumed that obligation.
In my view, this undertaking gave the plaintiff a reasonable
expectation that his maintenance contributions
would continue. A duty
of support between family members is one of those areas in which the
law gives expression to the moral views
of society. In the present
case, the plaintiff did not have to enforce his right to maintenance
from the deceased. The deceased voluntarily
assumed that obligation.
In my view, this is sufficient in itself to warrant a finding that
the plaintiff had acquired a right to
maintenance from his son, which
was enforceable against the insured and, by law, against the
defendant.”
COSTS
(27) The costs shall follow
the result as per the general rule governing the question of costs.
ORDER
(28) I make the following
finding:
(a) That the First Defendant
is liable to compensate the Plaintiff the amount of the damages the
Plaintiff is able to prove.
(b) The
First Defendant shall pay the Plaintiff’s costs of this action.
___________________
DLODLO,
J