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[2024] ZAMPMBHC 38
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Mokoena v Road Accident Fund (4636/2022) [2024] ZAMPMBHC 38 (10 June 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA DIVISION,
(MAIN SEAT)
Case No.: 4636/2022
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED
DATE:
10 June 2024
SIGNATURE
In
the application between:
PATRICIA
SANNIE MOKOENA
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The
date and time for
hand-down is deemed to be 10:00 on 10 June 2024.
JUDGMENT
MOLELEKI
AJ
:
[1]
This is an action for loss of support arising from a motor vehicle
collision
which occurred on 6 December 2020 on the R536 Mkhuhlu Road,
Mpumalanga Province. Mr. Bonginkosi Tie Mokoena (the deceased) was a
passenger in a motor vehicle with registration numbers J[...] 1[...]
M[...] driven by Mr Richardo Hlophe (the insured driver).
[2]
The deceased was killed when the insured driver lost control of the
vehicle
in which they were travelling, resulting in the deceased
sustaining fatal bodily injuries, in consequence of which he died at
Matikwane
hospital.
[3]
The deceased was 20 years old at the time of the accident.
[4]
The plaintiff is the mother of the deceased. She lodged a claim for
compensation
in terms of the 17 of the Road Accident Fund Act, 56 of
1996 (the Act), both in her personal capacity as the deceased’s
mother
as well as in her representative capacity, as mother and
natural guardian of her two minor children. The two minor children
were
the deceased’s younger siblings.
[5]
The defendant is the statutory body established in terms of section 2
of the Act to administer compensation fund. Section 17 of the Act
provides compensation to dependants who have a legally enforceable
right of support and who suffer harm caused by or arising from the
insured driver’s negligence or wrongful driving of a motor
vehicle.
[6]
Common cause facts between the parties:
[1]
That the plaintiff has the necessary
locus standi in iudicio
;
[2]
That the court has jurisdiction to entertain the matter;
[3]
Negligence on the part of the driver was conceded on the basis that
the
plaintiff is liable for 100% of the plaintiff’s proven or
agreed damages, subject to the issues in dispute set out below;
[4]
That the deceased was the biological child of the plaintiff;
[5]
The quantum of the plaintiff’s loss of support, if a finding is
made in favour of the plaintiff on the issues in dispute, as
calculated by the actuary in an actuarial report dated 8 August 2023;
[6]
That the actuarial report be admitted into evidence by way of
affidavit,
without the necessity of calling the actuary, Mr Johan
Potgieter, as a witness;
[7]
Issues in dispute are the following:
[1]
Whether the deceased earned an income as recorded by the actuary;
[2]
Whether the deceased had a legal duty to maintain the plaintiff and
the
minor children; and
[3]
The appropriate contingency deduction applicable to the loss of
support.
[8]
Evidence of four witnesses was adduced in support of the plaintiff’s
claim from which
an assessment of the deceased’s earnings and
duty to support would be made. The plaintiff testified and called
three witnesses,
namely, Ms. Sheila Nokwanda Mondlane; Mr. Sandlane
Venter Ngomane and Ms Thabi Friedah Mondlane.
[9]
The plaintiff testified that the deceased, her first born child was
employed
at Big Joe, a company that manufactures tissue paper. The
deceased was earning R600 per week. He would save the weekly earnings
and at the end of the month would withdraw the sum of R1 500 and give
it to her. With the money given to her by the deceased, the
plaintiff
would buy electricity, food, give pocket-money to the minor children,
buy them clothing when needed, at least twice a
year. During
cross-examination the plaintiff stated that she would at times buy
high blood medication for herself.
[10]
The evidence of the three witnesses is substantially the same.
They all were informed by the plaintiff
that the deceased was
assisting by giving her money which she used for the necessities.
Based on what the plaintiff told them,
they testified that the
deceased was supporting the plaintiff and the minor children.
[11]
No evidence was adduced on behalf of the defendant. However, the
defendant brought an application
in terms of
section 3(1)(c)
of the
Law of Evidence Amendment Act, 45 of 1988
, seeking the court to
consider and rule on the admissibility of hearsay evidence. The basis
for the application was that the deceased’s
cousin, Ms Tretjie
Sesinyana Mavimbela had deposed to an affidavit in support of the
plaintiff’s claim but had since passed
on. Accordingly, I ruled
that it is in the interest of justice to receive the statement into
evidence under
section 3(1
)(c) of the
Law of Evidence Amendment Act.
In
this affidavit Ms Mavimbela stated that the deceased supported the
plaintiff. She went further to state that the father of the
plaintiff’s children was unknown.
[12]
Damages for
loss of support normally can only be suffered where the third party
had a right to claim maintenance from the deceased.
[1]
The amounts payable by a deceased as maintenance but which he or she
is unable to pay due to his or her death caused by the negligent
and
unlawful driving of a motor vehicle may be recovered by the third
party to which the deceased owed a legal duty to maintain.
[13]
The plaintiff’s evidence is that the deceased was employed.
However, she could not
produce any record of his earnings. Although
an affidavit by the alleged employer of the deceased was discovered,
the author thereof
was not called to testify. Likewise, an
application in terms of Uniform
Rule 38(2)
was not brought to have
the affidavit admitted into evidence whereas the plaintiff sought to
rely on the contents of the affidavit.
[14]
The actuary, Mr. J Potgieter relied on information provided to him in
an affidavit by the
deceased’s employer, Mr. Joseph Nyalungu
dated 4 November 2021. The actuary examined all the permutations
based on this information.
In this affidavit, the deponent merely
states that the deceased was temporarily employed by him prior the
accident earning R600
per week, he goes on to state that he did not
issue any salary advice. The period for which the deceased had been
employed by Mr
Nyalungu is not stated.
[15]
As stated, all that the court has is what the plaintiff says the
deceased earned. Nothing
was presented in the form of a contract of
employment or bank statements. These are some of the documents that
would have given
a clear indication regarding the deceased’s
income, thus giving credence to the plaintiff’s testimony. That
is so,
even though the plaintiff in her testimony stated that the
deceased had a bank account. The plaintiff, therefore, remains the
only
source of information.
[16]
It is trite law that if evidence is not led to prove the authenticity
and originality of
documentary evidence, such evidence will only
qualify as hearsay evidence.
[17]
Section 3(4)
of the
Law of Evidence Amendment Act defines
hearsay
evidence as evidence, whether oral or in writing, the probative value
of which depends upon the credibility of any person
other than the
person giving such evidence. Hearsay evidence is only admissible in
very limited circumstances.
[18]
In order to
claim compensation for patrimonial loss, the plaintiff must discharge
the onus of proving, on a balance of probabilities
that such loss
occurred. That does not mean the plaintiff is required to prove the
loss with a mathematical precision. However,
the plaintiff is
required to place before the court all the evidence reasonably
available to enable the court to qualify the damages
and make an
appropriate award in his favour.
[2]
[19]
It is required of the plaintiff to place enough evidence before the
court from which the
court can be able to make a proper assessment of
what is fair to be awarded. The court should not assess damages based
on incomplete
information or inadequate factual basis. This more so,
where the evidence is available to the plaintiff, which she has not
produced.
Where evidence is available to the plaintiff, it must be
produced to assist the court in quantifying damages. Failure to do
so,
makes it difficult for the court to carry out proper assessment.
[20]
There is no evidence to gainsay the plaintiff’s evidence that
the deceased was employed
by Big Joe at the time of the accident. Be
that as it may, the plaintiff has not presented enough evidence to
confirm the deceased’s
income.
[21]
For this
court to attach weight to an expert opinion, the facts on which it is
based must be proven. In Ndlovu v RAF
[3]
it was stated that “
A
court’s decision cannot be based on speculation or reservations
gathered from documents which, although placed before it,
were not
admitted as to truth of content; nor were they used in the present
case to test the veracity of of the plaintiff’s
testimony and
the author was not called to testify
”.
[22]
On a conspectus of all the evidence presented, I am of the view that
the plaintiff has
failed to establish the facts in support of her
case to the satisfaction of the court.
[23]
In the result the following order is made:
[1]
Absolution from the instance is granted.
[2]
The plaintiff is ordered to pay the defendant’s costs.
MOLELEKI
AJ
JUDGE
OF HIGH COURT
Counsel for the
Plaintiff:
Adv. S Kok
Du Toit-Smuts
Attorneys
Law Chambers, Van
Niekerk Street
P.O Box 4030,
Nelspruit, 1200
Counsel for the
Defendant:
State Attorney,
Nelspruit
3
rd
Floor, Admin Block, West Wing
R104 Samora Machel
Drive
Nelspruit
Matter heard on 22,
24 & 25 April 2024
Judgment delivered
on 10 June 2024
[1]
Union
Government v Warneke
1911 AD 657
[2]
Bridgman
NO v Road Accident Fund
2002(1) ALLSA 1 (CPD).
[3]
Ndlovu
v RAF
2014(1) SA 415 at par 70