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2024
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[2024] ZALMPPHC 40
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Lina v Road Accident Fund (3311/2020) [2024] ZALMPPHC 40 (26 April 2024)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: 3311/2020
In
the matter between:
BALOYI
RAMOKONI LINA
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
On 28
th
February 2019 Richard Chabalala (deceased) was a
passenger in an insured motor vehicle B when it was involved in a
collision with
insured motor vehicle A. The deceased died as a result
of the injuries that he had sustained during the accident. The
plaintiff
is the mother of the deceased, and had instituted an action
against the defendant for a claim for loss of support. The plaintiff
in her particulars of claim has stated that the deceased was
principally contributing towards her maintenance according to his
financial position.
[2]
The defendant had defended the plaintiff’s action. The
defendant in its plea had denied that the
deceased was maintaining
the plaintiff. The defendant had further pleaded that if there was a
duty to maintain the plaintiff, that
duty fell on all of the
plaintiff’s children and not only the deceased.
[3]
Regarding merits, the defendant had made an offer to the plaintiff in
terms of Rule 34(1) of the Uniform
Rules of Court offering merits
100% in favour of the plaintiff. The plaintiff has accepted the offer
on merits by the defendant.
What this court is called upon to
determine, is whether the deceased was having a legal duty to support
the plaintiff and whether
the deceased was supporting the plaintiff
at the time of his death.
[4]
The plaintiff has testified under oath. He testified that the
deceased was her biological son. She was
staying with the deceased in
the same house for a long time. At some stage the deceased had left
her home and went to stay with
one Agnes Setena even though they were
not married. They have never went to Agnes family to go and negotiate
lobola for her. The
deceased was working, even though she did not
know where the deceased was working. She was informed that the
deceased was working
at Multilock Door System in Pretoria. She did
not know how much was the deceased earning.
[5]
The deceased was staying with her and buying food for her. The
deceased was also giving her money to
pay monthly contributions for
burial societies. In her homestead she was staying with Tumi Baloyi,
Lucas Baloyi and the deceased.
The money which the deceased was
giving her was sufficient to support the whole family. She is also
receiving social grant in the
amount of R1800.00. She is paying for 4
burial societies. She used to work as a farm labourer until all her
children grown up.
After the deceased had passed away, she got
confused and she had not recovered up to date. When the deceased was
still alive, she
was living a fine life as she could afford anything
that she wanted. After the deceased had passed away she is now
struggling to
afford what she used to during the deceased lifetime.
At the time of his death the deceased was no longer staying with
Agnes, but
with the plaintiff. Even when the deceased was staying
with Agnes, he was giving the plaintiff R2000.00 per month. At times
the
deceased will increase that amount.
[6]
The plaintiff was cross-examined and she stated that Tumi and Lucas
are her grandchildren and that their
mother had passed away whilst
they were still young. She had 3 children who were the deceased,
Daniel and Edward who have all passed
away. The plaintiff’s
husband had pre-deceased the deceased long time ago. The plaintiff
stated that the deceased had two
children with Agnes Setena. The
plaintiff stated that the deceased and Agnes have separated a long
time ago. It was put to the
plaintiff that sometimes and not always,
the plaintiff will go to the place where the deceased and Agnes were
staying together
to ask for mealie-meal, and the plaintiff disputed
that. Under re-examination by his counsel, the plaintiff stated that
they have
paid part of the lobola to Agnes family just to know the
family. That concluded the plaintiff’s evidence and she closed
her
case.
[7]
The defendant called Agnes Mokgethi Setena as its only witness who
testified under oath. She testified
that she knows the plaintiff, and
that the plaintiff is her mother-in-law. She and the deceased were
married to each other by tradition
on 31
st
December 2006.
After the lobola was paid for her by the deceased family, she and the
deceased stayed together in Mokgoopong. She
and the deceased had 3
children born of their marriage. However, one of the 3 children was
born before she and the plaintiff got
married.
[8]
The deceased was employed at Multi Lock Door System in Pretoria. The
deceased was earning R6000.00 per
month. The deceased was sleeping at
the plot where he was working. Sometimes she would visit the deceased
in Pretoria. There was
no stage where she and the deceased have
separated. She is not employed and was never employed. The deceased
was giving her R3000.00
per month, and that amount never changed. The
plaintiff is lying when she testified that the deceased was giving
her R2000.00 per
month. It was impossible for the deceased to have
afforded that since he was earning R6000.00 per month, and out that
he will give
her (plaintiff) R3000.00.
[9]
When the plaintiff had run out of mielie-meal, she will come to her
(Agnes) and ask for assistance.
However, that was not a daily thing.
She is in good terms with the plaintiff and do not have issues with
her. She is just surprised
when the plaintiff testified that the
deceased was giving her R2000.00 per month. The deceased was buried
by the plaintiff and
she did not attend the burial of the deceased,
but her children have attended. The deceased was not hiding anything
from her, and
if the deceased was giving the plaintiff R2000.00 per
month, she would have known that.
[10]
The witness was cross-examined and she stated that the plaintiff is
her mother-in-law because she is the
mother of her husband. She
stated that the deceased family had negotiated lobola for her in the
amount of R6000.00 plus extra R500.00
for the damages. R5000.00 of
the lobola was paid by the deceased family leaving a balance of
R1500.00. The witness stated that
all the 3 children are that of her
and the deceased. The witness stated that the deceased was also
giving their children pocket
money when going to school but did not
know how much. That concluded the evidence of the defendant and it
closed its case.
[11]
The question which this court is called upon to determine is whether
the deceased owed the plaintiff a duty
of support before he died, and
also whether the deceased was supporting the plaintiff at the time of
his death. It is trite that
a child has a duty to support his parents
if they are indigent. A claim for loss of support suffered as a
result of a breadwinner’s
death is recognised at common law as
a dependants’ action. The purpose of the remedy is to place the
dependants of the deceased
regarding maintenance in the same position
they would have been had the deceased not been killed. (See
Paixao
v Road
Accident
Fund
[1]
).
[12]
In
Fosi
v Road Accident Fund
[2]
Dlodlo J said
“
African law
obliges a child who is financially 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
under a duty to do so on the strength of the South African
legal
system, but custom 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
comes from. That child, without been 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
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…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 the
parent that his child will honour that
duty”.
[13]
The plaintiff was married to her husband who had passed away. She and
her deceased husband had 3 children
who have also all passed away.
The plaintiff is currently living with her two grandchildren whose
parents have passed away. The
plaintiff used to work as a farm
labourer until all her children were grown up. She is now receiving
social grant in the amount
of R1800.00 which she had to support her
herself and her two grandchildren. The plaintiff only source of
income is the social grant
of R1800.00 which had to feed three
mouths. In my view, the plaintiff is indigent, and the deceased owed
the plaintiff a duty of
support according to his financial means. At
the time of the deceased death, the deceased was the only surviving
child of the plaintiff,
and there was no other child of hers who
would have been liable to take care of her except the deceased.
[14]
The deceased was employed at Multilock Door System earning a basic
salary
R4000.00 per month, and with
some overtime work will earn up to R6779.00. There seems to be some
exaggerations with what the deceased
was giving the plaintiff and his
wife Agnes per month. According to the plaintiff, the deceased
was giving her R2000.00
per month, whilst Agnes has testified that
the deceased was giving her
R3000.00 per month.
Overtime work is not
guaranteed, it is as and when there is need.
According to the version
of the
plaintiff and Agnes, the deceased was spending
R5000.00 on both of
them every month. On top
of that the deceased will give his children
pocket money. That
was already way over his basic salary, and that had created a
shortfall.
Even if he had worked
overtime he will be left with nothing.
[15]
Agnes had testified that the deceased was buying
grocery of R500.00 for himself, and when the deceased
travels
to Mookgopong he will spend R420.00 on transport. The deceased was
therefore spending more than what he was
earning, and it was not explained how he was making up of the
shortfall. The deceased even
though he was taking care of both the plaintiff and Agnes, it
cannot be true that
he was giving them the figures they have testified about.
Agnes has also testified
that when the plaintiff had run out of
mealie-meal, she will come to her for assistance. That on its own is
proof that the deceased
was supporting the plaintiff and the
plaintiff was partly dependant on them on some
of the necessities of life, hence when she run out of mealie-meal,
she will go to
the deceased wife for assistance. The exaggeration by both the
plaintiff and
Agnes in relation to what the deceased was giving them, does not in
any way affect the deceased
duty of
support towards them. The plaintiff is therefore
entitled to claim the loss of support arising
out of the death of her
son the deceased, since she is indigent and was partly
dependant on the deceased.
[16]
In the result the following order is made:
16.1
The deceased had a legal duty of support towards the
plaintiff and was supporting the
plaintiff
at the time of his death.
16.2
The defendant to pay the plaintiff’s costs on
party and party scale.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel for the
plaintiff
: Adv LF Makgopa
Instructed
by
:
MJ Maponya Attorneys
Counsel for the
respondent
: MC Mafiri
Instructed
by
: State Attorney Polokwane
Date
heard
:
14
th
March 2024
Electronically
circulated on
: 26
th
April 2024
[1]
2012
(6) SA 377
(SCA) at para 12
[2]
[2007] ZAWCHC 8
;
2008
(3) SA 560
(CPD) at para 16