About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Mthatha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Mthatha
>>
2024
>>
[2024] ZAECMHC 54
|
|
Sandla v Road Accident Fund (735/2022) [2024] ZAECMHC 54 (20 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO.: 735/2022
Reportable
Yes
In
the matter between:
CHULEZA
SANDLA
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
NOTYESI
AJ
Introduction
[1]
The
plaintiff, Ms Chuleza Sandla, an adult woman residing at Msukeni
Location, is suing the Road Accident Fund (the RAF), a juristic
person established in terms of the Act
[1]
,
for a loss of support arising from a motor vehicle collision which
occurred on 25 April 2021 at or near Ngxogi Location in the
district
of Engcobo. The accident resulted in the death of her biological
brother, Buqaqawuli Nyembezi (the deceased) who succumbed
due to the
serious injuries that he had sustained
[2]
.
The claim is based on an allegation that the deceased, during his
lifetime, had a duty to support the plaintiff, and indeed, he
supported her.
[2]
In terms of section 17(1)(a), the RAF is
obliged to compensate any person in respect of any loss or damage
which such person suffered
as a result of any bodily injuries to
himself or herself or the death or any bodily injury to any other
person, caused by or arising
from the driving of a motor vehicle by
any person within the Republic of South Africa if the injury or death
is due to the negligence
or other wrongful conduct of the driver of a
motor vehicle.
[3]
The RAF is defending the action on three
fundamental bases. First, it contended that the plaintiff had
no locus standi to
sue the RAF as she was a sibling; second, the RAF
had submitted that the deceased had no duty to support the plaintiff
and consequently,
the plaintiff has no right to claim compensation
from the RAF; and third, the RAF contended that as the plaintiff at
the time of
the accident was 28 years of age, she had attained the
age of maturity and therefore, even if the deceased had a duty of her
support,
by virtue of her age, that duty would have terminated with
the result that the deceased no longer owed the plaintiff any duty to
support.
[4]
At the commencement of the trial, the
parties agreed on the separation of merits and quantum. It was
pointed out by the parties
to this Court that there were other claims
which involved the children of the deceased and other dependants.
According to the parties,
the claims in respect of the other
claimants were resolved. The present claim is the only outstanding
claim on the basis of the
contentions by the RAF. Although this
court-ordered separation in view of the agreement by the parties, the
nature of this case,
in my view, ordinarily requires a hearing of
both merits and quantum.
[5]
The plaintiff bears the onus to prove
the liability of the RAF and therefore has a duty to adduce evidence
in support of her claim.
The
parties
[6]
For the sake of simplicity, the parties
shall be referred to as ‘the plaintiff’, ‘the RAF’
and the plaintiff’s
brother shall be referred to as ‘the
deceased’.
The
issues
[7]
In a proper conspectus, the issue for
determination is whether or not the deceased had a legal duty to
support the plaintiff; and
if so, whether the plaintiff has a valid
claim for loss of support against the RAF.
The
agreement of the parties
[8]
Prior to the commencement of the
proceedings, the parties submitted an agreed statement of facts and a
joint practice note. Although
the matter did not proceed as a stated
case, the agreement between the parties was submitted to court as a
statement of common
cause facts. According to the agreement, these
facts are common cause –
‘
1.
The first plaintiff, Chuleza Sandla (“Chuleza”) was 28
years old at the time of the accident.
2.
Buqaqawuli Nyembezi (“the deceased”) whose death was as a
result of a motor vehicle collision that occurred
on 25 April 2021 is
Chuleza’s biological brother.
3.
Chuleza was a registered student at Walter Sisulu University until
December 2022.’
[9]
The plaintiff contended that she has
locus standi to institute these proceedings in order to vindicate her
right of support which
she lost as a result of the death of
Buqaqawuli Nyembezi.
[10]
The plaintiff contended that the
deceased, through his actions, had created a binding obligation upon
himself to maintain and support
the plaintiff financially.
[11]
The deceased’s death, as a result
of the conduct of the insured driver, had deprived the financial
support that the deceased
had been providing the plaintiff and as
such, the defendant is liable to compensate her for such loss.
[12]
The defendant contended that the
plaintiff has no locus standi in these proceedings.
[13]
The defendant contended that the
deceased had no duty to support the plaintiff and consequently had no
right to claim compensation
from the defendant.
[14]
The defendant contended that due to the
fact that the plaintiff had attained the age of maturity at the time
in which the accident
which gave rise to the plaintiff’s claim
occurred, the deceased no longer owed the plaintiff a duty of
support.
The
joint practice note
[15]
In terms of the joint practice note, the
plaintiff’s claim is based on the provisions of section 17(1)
(a) of the Act.
[16]
In summary, the version of the plaintiff
would be that – the plaintiff’s brother was a driver of a
motor vehicle on
25 April 2021 and the vehicle that he was driving
became involved in an accident where he suffered fatal injuries that
led to his
death. The plaintiff is claiming for loss of support
against the RAF. The plaintiff’s brother used to support the
plaintiff
during his lifetime and as a result of the accident and the
death of the plaintiff’s brother, the plaintiff suffered loss
of support.
[17]
The defendant’s version would be
that – the plaintiff has no claim against the RAF for the
reason that her brother had
no legal duty to support her and
therefor, the claim against the RAF has no merit and the plaintiff
has no locus standi to institute
the claim against the RAF. The
defendant further contended that the plaintiff, at the time of the
accident, had attained the age
of maturity and therefor was not
supported by the deceased.
The
evidence
[18]
Only the evidence of the plaintiff was
adduced during the trial. The upshot of the evidence was that –
she was born on 9 January
1993. Both her parents are deceased. She
holds three tertiary qualifications. She holds a Diploma in National
Journalism which
she completed in December 2021. In December 2022,
she obtained an advanced Diploma in Journalism. In 2017, she obtained
a Higher
Certificate in Broadcasting. She is unemployed. The mother
passed on when she was only 13 years of age. Upon the passing of her
parents, she became dependent upon her late brother. The brother was
the only surviving sibling.
[19]
Her late brother was responsible for her
schooling and welfare. Her brother supported her. She had obtained
her matric in 2011 when
she was 18 years of age. Due to the
unavailability of funds for tertiary education, she had delayed for
five years. The reason
for the delay and the lack of funds was that
the brother had to first build a home. Her late brother was employed
by the Department
of Police.
[20]
The brother passed on 25 April 2021. At
the time when the brother passed on, she was 28 years old, and
holding her tertiary qualifications.
As a result of the death of her
brother, she is experiencing financial difficulties as she is not
employed. She had been unsuccessfully
seeking employment.
[21]
During cross-examination, she confirmed
that her brother died whilst she was doing her second tertiary
qualification. On questioning
by the court, the plaintiff confirmed
that she was not nominated as a dependent to her late brother,
although he was a police officer.
She testified that she did not
inherit from her late brother, nor filed any claim against his
estate. According to her, the wife
of the deceased inherited from the
late brother. She confirmed that she never filed any claim against
the wife of her late brother.
The late brother had surviving
children. She confirmed that she also has her own child and that she
is presently 31 years old.
[22]
She further testified that her child is
maintained by the father of her child with whom the child is
primarily residing. On being
questioned whether the brother, if he
was alive, would still be maintaining her, she confirmed. On a
further question on whether
she would take her late brother to the
maintenance court if he failed to maintain her, she answered that she
would not force her
brother for maintenance. When asked to elaborate
on her response, she confirmed that her late brother was not bound to
maintain
her. For the sake of completeness, I quote from the
transcript in this regard.
‘
Court:
Why you could not force him, any reason – particular reason?
Ms
Sandla: It is because he was not bound [?] – or forced rather.’
The
legal framework
[23]
In
Paixao
and Another v Road Accident Fund
[3]
the
court held –
‘
The
existence of a dependant’s right to claim support which is
worthy of the law’s protection, and the breadwinner’s
correlative duty of support, is determined by the boni mores
criterion, or as Rumpff CJ in another context put it in
Minister
van Polisie v Ewels
, the legal convictions of the community. This
is essentially a judicial determination that a court must make after
considering
the interplay of several factors: “the hand of
history, our ideas of morals and justice, the convenience of
administering
the rule and our social ideas of where the loss should
fall”. In this regard considerations of equity and decency”
have always been important. Underpinning all this are constitutional
norms and values. So the court is required to make a policy
decision
based on the recognition that social changes must be accompanied by
legal norms to encourage social responsibility. By
making the boni
mores the decisive factor in this determination, the dependants’
action has had the flexibility to adapt
to social changes and to
modern conditions.’
[24]
In
Road
Accident Fund v Mohohlo
[4]
Rogers J held-
‘
However,
the legal convictions of the community are not static. It may well be
that a legal duty of support which depends on nothing
more than the
happenstance of a blood relationship should be kept within the limits
indicated in our old authorities. Our ideas
and morals and justice
may not, in general, insist on support between more distant
relatives. It by no means follows that the same
approach should be
followed where the blood relationship has been fortified by
additional circumstances. And in answering the latter
question, one
must have regard to the values underlying our Constitution. One of
these is ubuntu: “The spirit of ubuntu,
part of the deep
cultural heritage of the maturity of the population, suffuses the
whole constitutional order. It combines individual
rights with a
communitarian philosophy. It is a unifying motif of the Bill of
Rights, which is nothing if not a structured, institutionalised
and
operational declaration in our evolving new society of the need for
humanitarian interdependence, respect and concern.’
[25]
In
Langa
and Others v Road Accident Fund
[5]
it
was held –
‘
Our
law takes a generous view towards the duty of support by recognising
the changing nature of relationships of dependency in modern
society.
The point of departure is whether a dependant has a claim worthy of
protection by law. The answer is determined by reference
to the
morality of society, which is divined by an exercise of judicial
policy-making aimed at acknowledging that social changes
warrant
legal norms to encourage social responsibility. Our law has thus
recognised that the duty of support extends to children,
parents and
even siblings, such as in this case, with due regard to factors such
as morality, justice and the history of support
even in instances
where such support was not mandatory or typical.’
[26]
The
duty of support between siblings was considered in
Ex
Parte Pienaar
[6]
.
There
it was stated that the duty of nearer relatives must be considered
before remoter relatives can be held liable. Nonetheless,
in
Roman-Dutch Law a duty of support exists between brothers (including
half-brothers).
[7]
The court thus held in that case that a duty did exist for a sibling
to support his sisters and brothers. As in all cases, the
degree or
scope of maintenance is a matter of some difficulty but is usually
payable to an indigent person and at the discretion
of the judge. The
court went on to consider for how long such a duty endures and
concluded -
‘
The next question
is when does the right to receive these payments cease .The duty of
support due by a parent to a child may involve
the duty to afford the
child a university education ... No authority has been quoted to me
which suggests this applies also as
between brothers .....As I read
(the authorities) ...it cannot be the duty of a brother to support a
brother who is physically
and mentally well after the latter has
attained majority ..’
[27]
In
Langa
and Others v Road Accident Fund
[8]
(para 15), Murphy J made the following remark –
‘
The
general principle thus would seem to be that a sibling's duty to
support his or her indigent sibling would normally not endure
beyond
the latter attaining the age of majority. However, the learned judge
was at pains to point out that his conclusion to that
effect in the
case before him rested upon his interpretation of an applicable
agreement which had been made an order of court.
He thus left open
the question of whether the common law might be developed in
accordance with prevailing
boni mores
to allow for such a duty
to extend beyond majority. There is no need to canvass that issue
further in the present case as the parties
have agreed on the amount
payable in the event that I find such a duty does exist.’
[28]
In
Knop
v Johannesburg City Council
[9]
it was held –
‘
In short,
recognition of a duty of care is the outcome of a value judgment,
that the plaintiff invaded interest is deemed worthy
of legal
protection against negligent interference by conduct of the kind
alleged against the defendant. In the decision whether
or not there
is a duty, many factors interplay; the hand of history, our ideas of
moral and justice, the convenience of administering
the rule and our
social ideas as to whether the loss should fall. Hence the incident
and extent of duties are liable to adjustment
in the light of the
constant shifts and changes in community attitudes.’
[29]
In
Amod
v Multilateral Motor Vehicle Accidents Fund
[10]
, Mohammed CJ confirmed the approach adopted in
Santam
Bpk v Henery
[11]
when
assessing the validity of a dependant’s claim for loss of
support. The correct approach is the following –
‘
(a)
The claimant for loss of support resulting from the unlawful killing
of the deceased must establish that the deceased had a
duty to
support the dependant; (b) It had to be a legally enforceable duty;
(c) The right of the dependant to such support had
to be worthy of
protection by the law; (d) The preceding element had to be determined
by the criterion of boni mores. (e) Thus
approached, the claim of a
widow who had been divorced at the date of the death of the deceased
but who had been entitled to support
from him, by virtue of an order
of maintenance made by a Court, could be accommodated within the
legitimate parametres of the dependant’s
action in the common
law because:
(1)
the deceased had a duty to support the claimant who was his former
wife;
(ii)
that duty was legally enforceable;
(iii)
the right of the former wife to such support was a right which was
worthy of protection by the law, for the purposes of the
dependant’s
action; and
(iv)
the last assessment was justified by the criterion of boni mores.’
[30]
On the basis of the above principles, I will consider the submissions
of the parties.
Submissions
by the parties before this Court
[31]
Mr Nabela, counsel for the RAF, had submitted that this Court should
consider the claim of the plaintiff based on three
factors. First,
the claimant’s inability to support herself; second, her
relationship to the deceased; third, the latter’s
ability to
provide support. I agree with this submission. Mr
Maduma
, who
appeared for the plaintiff, correctly conceded the submission based
on the legal principles.
[32]
Mr Maduma contended that by now it is axiomatic that the duty of
support extends to siblings and he relied on the authorities
of
Mohohlo v Road Accident Fund
and
Langa and Others v Road
Accident Fund
. In advancing his submission, Mr Maduma submitted
that the unquestionable evidence is that the deceased had assumed the
position
of being the father to the plaintiff and that he supported
the plaintiff towards her education. In this regard, the contention
was that the deceased had provided the plaintiff with clothing, and
housing and he would often deposit monthly expenses for the
plaintiff
and at times, pay her tuition fees.
[33]
In this regard, Mr Mdube contended that by his own conduct and
action, the deceased had created a responsibility towards
the
plaintiff and actually assumed a binding duty to support the
plaintiff. For those reasons, the contention was that the legal
duty
was created and is deserving of legal protection. The plaintiff’s
counsel pointed out that the plaintiff was unemployed
and that she is
an indigent person as a result of the death of her brother. Mr
Mdube
relied on the case of
Kriel
v Road Accident Fund
[12]
where
Daffue ADJP, in dealing with the claim of unmarried life partners,
had this to say –
‘
Volks,
therefore, does not stand in the way of the appellants’
submission that the common law may be developed to extend the
dependants’ action generally to unmarried parties in
heterosexual relationships or
to any other relationships.’
[34]
Mr Nabela submitted that it should be accepted that common law
recognises that parents are the primary caregivers of
their children
and accordingly, the law imposes a duty of support insofar as they
are able to do. That duty also arises in respect
of their indigent
parents, if the children are able to support them. Mr Nabela relied
on the provisions of section 18(2) of the
Children’s Act and
put an emphasis on a reciprocal duty of support between parents and
children. Whilst Mr Nabela conceded
that on the authority of
Oosthuizen
v Stanley
[13]
an indigent brother or sister might be entitled to claim support from
a sibling if the parents are unable to provide, he submitted
that
such a right would not normally endure beyond the age of maturity. In
relation to this case, Mr Nabela submitted that for
the reasons that
the plaintiff had already attained the age of maturity when her
brother died, and the fact that the plaintiff
is physically and
mentally well, there can be no basis to claim against the RAF.
Evaluation
and analysis
[35]
When the plaintiff’s brother died in an accident, she was 28
years old. She had three qualifications. She holds
a Diploma in
National Journalism which she completed in December 2021. In December
2022, she obtained an advanced Diploma in Journalism.
In 2017, she
obtained a Higher Certificate in Broadcasting. These are post-matric
qualifications.
[35]
I accept that there is a duty of support that exists between
siblings. In this regard, I rely on the authority of
Ex
Parte Pienaar
[14]
,
where it was stated that a duty
did
exist for a sibling to support his sisters and brothers. As in all
cases, the degree or scope of maintenance is a matter of
some
difficulty but is usually payable to an indigent person and at the
discretion of the judge. Also, in
Road
Accident Fund v Mohohlo
[15]
where it was stated –
‘
Cachalia
JA went on to refer to a passage from Mahomed CJ’s judgment in
Amod v Multilateral Motor Vehicle Accident’s Fund
(Commission for Gender Equality Intervening
)
1999 (4) SA 1319
(SCA) para 7 where the Chief Justice said that the precise scope of
the dependant’s action was unclear from the writings
of the
Roman-Dutch jurists and that there were passages in Grotius and Voet
perhaps suggesting that the action might be extended
to any dependant
within the deceased’s “broad family whom he in fact
supported whether he was obliged to do so or not”
or to any
dependant enjoying a “de facto close familial relationship with
the breadwinner”. As I have said, Voet and
others were quite
clear that there was no legal duty of support beyond the second
degree of consanguinity.’
[37]
On the strength of authorities, I accept that the plaintiff does have
locus standi to claim as a sibling to the deceased.
The matter must
not end there. The next question is whether the plaintiff has any
claim on the facts of this particular case. In
Meteso
v Padongeluksfonds
[16]
the court observed –
‘
It
seems to me that these cases demonstrate that the common law has
developed to recognise that a duty to support can arise, in
a given
case, from the fact-specific circumstances of a proven relationship
from which it is shown that a binding duty of support
was assumed by
one person in favour of another. Moreover, a culturally imbedding
notice of “family”, constituted as
being a network of
relationships of reciprocal nurture and support, informs the common
law’s appetite to embrace, as worthy
of protection, the
assumption of duties of support and the reciprocal right to claim
support, by persons who are in relationships
akin to that of a
family. This norm is not parochial, but rather, is likely to be
universal; it certainly is constant both with
norms derived from the
Roman-Dutch tradition…. and, no less, from norms derived from
African tradition, not least of all,
as exemplified by the spirit of
Ubuntu…’
[38]
My immediate difficulty with the plaintiff’s case is that at
the time of her brother’s death, she was already
28 years of
age. She had obtained at least three post-matric qualifications. The
fact that she is unemployed, reflects the general
social challenges
in South Africa. According to the statistics, out of a population of
60 million people, 11 million are unemployed.
In such cases, it is
common knowledge that graduates are struggling for employment. Whilst
that is a regrettable situation, it
should not give rise to an
overflow of claims against the RAF on the basis of loss of support in
cases such as this.
[39]
I agree with the statement made in the case of
Ex Parte Pienaar
that –
‘
The next question
is when does the right to receive these payments cease ... .The duty
of support due by a parent to a child may
involve the duty to afford
the child a university education .No authority has been quoted to me
which suggests this applies also
as between brothers .As I read (the
authorities) .it cannot be the duty of a brother to support a brother
who is physically and
mentally well after the latter has attained
majority .’
[40]
In my view, the deceased had no legal duty to support the plaintiff
after she had attained the age of maturity and had
obtained
post-matric qualifications. The plaintiff was in a position to seek
for her employment. The plaintiff was physically and
mentally well.
She could, on her own, find various ways upon which she could
survive. In this view, I also consider the fact that
the RAF has paid
for the claims in respect of the children and the wife of the
deceased. The plaintiff, herself, has conceded that
she could not
force the deceased to support her and therefore, that must answer the
question whether there was a legal duty of
support. In consideration
of each of these circumstances, there was no legal duty for the
deceased to support the plaintiff. The
plaintiff has also failed to
produce any evidence that there was an agreement between her and the
deceased regarding her support.
Absent the agreement of whatever
nature, is fatal to the plaintiff’s claim. The correct position
of our law is that the duty
to support siblings would normally not
endure beyond the age of maturity. This does not mean that there
cannot be exceptions. One
of the exceptions would be a situation
where the sibling would be physically and or mentally incapable of
supporting him or herself.
This is not such a case.
[41]
I have also considered the principles of customary law as I am
required in terms of section 211(3) of the Constitution.
In customary
law, brothers are expected to look after their sisters, irrespective
of their age. However, the specific facts in
the present case do not
avail of any remedy to the plaintiff. The plaintiff, too, did not
rely on the customary law principles.
Had she relied on the customary
law principles, more evidence would have been required. In this case,
the plaintiff holds at least
three post-matric qualifications. The
deceased had children and a wife. The children and wife have
inherited and also claimed from
the RAF. The plaintiff was not even
nominated as a beneficiary of the deceased. There is not enough
evidence to support a conclusion
that the deceased was supporting the
plaintiff.
[42]
For all these reasons, I am not satisfied that the plaintiff has made
out a case.
Findings
[43]
Based on the fact that the plaintiff was 28 years old at the time of
the death of her brother and that she holds three
post-matric
qualifications and that she was not entitled to inherit from the
deceased in terms of the Intestate Act or customary
law, the claim of
the plaintiff should fail. I have also considered that there was no
legal duty of support that existed between
the plaintiff and the
deceased. I also took into account the fact that the deceased had
left his heirs, being his wife and his
children. The plaintiff also
failed to produce evidence of any duty of support between the
deceased and herself. All these factors
lead to the conclusion that
there was no duty of support that existed between the plaintiff and
the deceased and therefore, the
loss of support does not arise.
Conclusion
[44]
For all the reasons set out above, I come to the conclusion that the
plaintiff’s claim should fail. The general
rule is that costs
should follow the event. In the present case, I will depart from the
general rule. The plaintiff is a sibling
of the deceased. The action,
in my view, was instituted with bona fides against a public
institution. The brother of the plaintiff
had died in a car accident.
The plaintiff is unemployed. After careful consideration of all these
facts, I come to the conclusion
that in the exercise of my
discretion, I should not award costs in favour of the RAF. In the
circumstances, the appropriate remedy
for costs would be that each
party should pay its own costs.
Order
[45]
In the result, I make the following order –
(1)
The plaintiff’s action against the RAF is dismissed.
(2)
Each party to pay its own costs.
M
NOTYESI
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the plaintiff :
Adv Maduma
Instructed
by:
Makangela Mtungani Inc
Mthatha
Counsel
for the defendant:
Adv Nabela
Instructed
by :
The State Attorney
Mthatha
Heard
on:
20 March 2024
Judgment
Delivered on:
20
June 2024
[1]
Section 2
of
The
Road Accident Fund Act, 1996
[56
of 1996] – G17532 as amended.
[2]
It
was not in dispute that the deceased died as a result of bodily
injuries sustained during the collision.
[3]
Paixao
and Another v The Road Accident Fund 2012 (6) SA 377 (SCA).
[4]
Road
Accident Fund v Mohohlo (882/2016) [2017] ZASCA 155; 2018 (2) SA 65
(SCA).
[5]
Langa
and Others v Road Accident Fund (2014/67644) at para 12.
[6]
Ex
Parte Pienaar
[1964] 2 ALL SA 62
(T); also see Langa supra at para
14.
[7]
Voet 25.3.8 (Gane's translations Vol 4).
[8]
Langa
and Others v Road Accident Fund supra
[9]
Knop
v Johannesburg City Council
1995 (2) SA 1
(A) at 27G-I; see also Du
Plessis v RAF 2004 (1) SA 359 (SCA).
[10]
Amod
v Multilateral Motor Vehicle Accidents Fund
1999 (4) SA 1319
(SCA);
1999 ALL SA 421
(A) at para 12.
[11]
Santam
Bpk v Henery
[1999] ZASCA 5
;
1999 (3) SA 421
(SCA) at 425H-426A.
[12]
Kriel
v Road Accident Fund [2020] ZAFSHC 42.
[13]
Oosthuizen
v Stanley
1938 AD 322
at B-311.
[14]
Ex
Parte Pienaar footnote no: 6.
[15]
Supra
footnote no: 4
at para 11.
[16]
Meteso
v Padongeluksfonds
2001
(3) SA 1142
(T), also quoted in Langa and Others v Road Accident
Fund.