SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No:1043/2024
In the matter between:
S[...] I[...] S[...] APPELLANT
and
ROAD ACCIDENT FUND RESPONDENT
Neutral citation: S[...] I[...] S[...] v Road Accident Fund (1043/2024) [2026] ZASCA
72 (19 May 2026)
Coram: Mocumie, Makgoka, Schippers and Smith JJA and Chili AJA
Heard: 21 November 2025
Delivered: 19 May 2026
Summary: Delict – breadwinner fatally injured – claim for loss of support – deceased
supported partner and minor child – whether deceased’s source of income illegal –
not pleaded – child’s best interests required by s 28 of the Constitution not
considered – matter remitted to high court to determine quantum afresh.
2
_________________________________________________________________________________
ORDER
_________________________________________________________________________________
On appeal from: Mpumalanga Division of the High Court, Mbombela (Mashile J),
sitting as court of first instance:
1 The appeal is upheld to the extent set out in paragraphs 2 and 3 hereinbelow.
2 The matter is remitted to the high court (differently constituted) to consider the
quantum.
3 The respondent is to pay the costs of the appeal.
___________________________________________________________________
JUDGMENT
Chili AJA (Mocumie, Makgoka, Schippers and Smith JJA concurring):
Introduction
[1] This is an appeal against the judgment and order of the Mpumalanga Division
of the High Court, Mbombela (the high court), dismissing the appellant’s claim for
loss of support against the respondent. The appeal is with the leave of the high court.
[2] The appellant, Ms S[...] I[...] S[...] (the plaintiff), instituted an action against the
respondent, the Road Accident Fund (the Fund), both in her personal and
representative capacity, as mother and natural guardian of the minor child , SM (the
minor child) born on 18 March 2013. The claim arose out of a motor vehicle collision,
which occurred on 14 August 2018 along the R40 Highway in Mpumalanga , during
which Mr N[...] M[...] (the deceased ), who was a passenger in the motor vehicle ,
sustained serious injuries from which he later died. It was common cause that the
collision occurred as a result of the negligent driving by Mr E B Lekwane, the insured
driver.
[3] In her particulars of claim, the plaintiff averred that during his life -time, the
deceased was obliged to support her and the minor child, and in fact did so,
3
because: (a) she and the deceased were married to each other; and (b) the
deceased was the father and natural guardian of the minor child. Although the Fund
initially pleaded a bald denial of these allegations, it later conceded that the
deceased was the father of the minor child and was thus, obliged to support him .
Thus, it was conceded that the child had suffered damages in the form of loss of
support as a result of the deceased’s death . All that remained to determine in
respect to the minor child’s claim was the quantum of such loss.
[4] However, regarding the plaintiff’s claim in her personal capacity, the Fund
persisted in its denial that she and the deceased were married, and thus no duty of
support arose . When addressing the court before and during the trial, the parties
narrowed the issue further to whether the deceased had a spousal duty to maintain
the plaintiff during his lifetime that entitled her to a claim from the Fund for loss of
support.
[5] The issues for determination having thus been identified before the high court,
the evidence led at the trial focused squarely on establishing the existence of a
marriage between the plaintiff and the deceased. This is clear from the record:
‘[Counsel for the Fund] My Lord, at paragraph 10.1.
“At all relevant times the deceased was married to the plaintiff.”
We are disputing the marriage there My Lord. Why did they not, amend that paragraph and
just claim for dependants from the word go My Lord? Then we would not have to now – I
would not have to call a witness to dispute the issue of marriage, because even from day 1
we said it from the defendant’s side, the issue is marriage. They did not claim just
dependants. They stated that there is marriage My Lord.’
[6] Consistent with the defence, the record shows that the plaintiff’s evidence in
chief and the cross -examination was confined to the issue of marriage. There is no
hint of the Fund not being liable for loss of support, because the deceased’s income
hint of the Fund not being liable for loss of support, because the deceased’s income
was from an illegal source.
[7] On the issue of marriage , the plaintiff, her sister, Ms A[...] S[...] , her uncle,
Mr C[...] S[...] , and Mr M[...]’s friend and neighbour, Mr Walter American Nkuna ,
testified. On behalf of the plaintiff , an actuarial report compiled by Mr Johan
4
Potgieter, a consulting actuary of GRS Actuarial Consulting, was tendered in
evidence. Mr P[...] N[...], the deceased’s elder brother, testified on behalf of the Fund.
[8] The upshot of the evidence on behalf of the plaintiff was that she and the
deceased were customarily married to each other. The plaintiff testified that she lived
with the deceased and the minor child in Sabie. On behalf of the Fund, Mr N[...]
testified that the deceased was never married, and had not lived in Sabie since
2010, when he moved back to Bushbuckridge. He denied any knowledge of a
relationship, let alone a marriage, between the deceased and the plaintiff.
[9] During her evidence, the plaintiff testified that the deceased used to lend
money to people, from which he generated up to R4 500 per month. The court asked
the plaintiff whether this activity was ‘a loan shark business’ and whether ‘it was
registered.’ The plaintiff answered that ‘it was not registered.’ Mr N[...], who testified
on behalf of the fund, stated that the deceased was self -employed as a motor
mechanic in Bushbuckridge, and earned income from that business. None of these
issues were investigated further in the high court, either by the parties’ legal
representatives or the court.
[10] After the evidence was concluded, the high court requested that the parties
submit heads of argument. In its heads of argument, the fund contended, among
other things, that the plaintiff’s claims, both in her personal capacity and on behalf of
the minor child, had to fail because the deceased’s income was earned through
unlawful means. This was based solely on the evidence of the plaintiff when, in
answer to the court’s question, she mentioned that the deceased’s money lending
business was ‘not registered’.
[11] In its judgment, the high court found that the plaintiff failed to prove that she
was married to the deceased . Despite this finding, the high court nevertheless
was married to the deceased . Despite this finding, the high court nevertheless
proceeded to enquire ‘whether during his lifetime, the deceased owed the plaintiff
any duty of support’, despite them not being married to each other. The high court
answered that question in the affirmative. But it went further to enquire about a
question which it framed in the following terms:
5
‘While [the Fund] did not defend this claim, it raised a very pertinent legal issue which should
become the central focus of this whole matter. The issue is whether the income that the
deceased earned from his unregistered “loan shark” business can be claimed by his
dependents regardless of the apparent unlawful way the deceased acquired it.’
[12] The high court went on to consider certain sections of the National Credit Act
34 of 2005 (the NCA), which seek to declare unlawful credit agreements concluded
with an unregistered credit provider and prescribe criminal penalties in respect of
such transactions. It concluded that since the deceased’s money -lending business
was not registered, it was illegal, and so was the income earned from it. The high
court relied on this Court’s decisions in Dhlamini v Protea Assurance (Dhlamini)1 and
Santam v Ferguson (Santam).2 The essence of these two decisions is that a claim
for loss of income is not competent where the income was derived from unlawful
activity. In Dhlamini this Court did not limit the prohibition only to income from
immoral or criminal activity but extended it to income from activity that is not
enforceable because of invalidity. In that case, a street hawker was injured in a
motor collision. Her claim for loss of income was dismissed because she did not
have a hawking licen ce. This Court observed that trading without a licence was not
only punishable but, because of important considerations of public policy, the results
of such trading also ought not to be legally valid.
[13] Dhlamini was affirmed and applied in Santam. There, t he deceased, a
panelbeater, had carried on at all relevant times prior to his death in a motor accident
the business of panelbeating without a licence in Cape Town under circumstances
where he could not obtain a licence. This Court held that the carrying on of his
business as a panelbeater was not only unlawful but also that the income he
business as a panelbeater was not only unlawful but also that the income he
acquired thereby was not legal. Accordingly, dependant’s claim for damages for loss
of support was dismissed on the basis that the deceased had supported her out of
an unlawful income.
[14] For the reason that the deceased’s money-lending business was not registered,
the high court concluded that both the plaintiff’s and the minor child’s claims for
1 Dhlamini en 'n Ander v Protea Assurance Co Ltd 1974 (4) SA 906 (A).
2 Santam Insurance Ltd v Ferguson 1985 (4) SA 843 (A).
6
damages resulting from the deceased’s death were not enforceable against the
Fund. It accordingly dismissed their claims with costs.
[15] Before us, the plaintiff contended that it was impermissible for the high court
to extend its inquiry to issues that were not before it. The illegality or otherwise, of
the deceased’s income, so it was contended, was never an issue during trial and the
high court erred in pronouncing on it. The plaintiff further contended that the high
court erred in failing to recognise her claim for loss of support solely on the basis that
she had failed to demonstrate that the deceased earned an y income from lawful
sources. On the other hand, it was contended on behalf of the Fund that the issue
pertaining to the deceased’s source of income was purely a legal issue, not a factual
one, and could thus be raised by the court on its own accord. I deal with these
contentions in turn.
The appeal
[16] It is common cause that the issue of the illegality of the deceased’s income was
not canvassed at the trial, as the focus was on the existence of a marriage between
the plaintiff and the deceased. Regarding the deceased’s source of income, both the
plaintiff and Mr Nkuna testified that the deceased was a ‘loan shark’, the business of
loaning money to people at unregulated interest rates. In addition, Mr N[...] testified
that the deceased was a mechanic operating from his place of residence and the taxi
rank. Except for one question by the court, ‘whether the deceased’s loan shark
business was registered’, it was never suggested to the appellant or Mr Nkuna that
the deceased’s money lending business was illegal. Neither was it pleaded by the
Fund. The failure to plead the illegality of the deceased’s source of income, or, at the
very least, raise it at the trial, deprived the appellant of the opportunity to exercise
her constitutional right to a fair hearing.
[17] Both this Court and the Constitutional Court have cautioned against deciding a
[17] Both this Court and the Constitutional Court have cautioned against deciding a
matter on issues neither pleaded nor canvassed with the parties. In South African
Police Service v Solidarity obo Barnard,3 the Constitutional Court held as follows:
3 South African Police Service v Solidarity obo Barnard (Barnard) [2014] ZACC 23; 2014 (6) SA 123
(CC); [2014] 11 BLLR 1025 (CC); 2014 (10) BCLR 1195 (CC); (2014) 35 ILJ 2981 (CC) paras 202 and
204.
7
‘It is a principle of our law that a party must plead its cause of action in the court of first
instance so as to warn other parties of the case they have to meet and the relief sought
against them. This is a fundamental principle of fairness in the conduct of litigation. It
promotes the parties’ rights to a fair hearing which is guaranteed by section 34 of the
Constitution.
. . .
[T]he purpose of the pleadings is to define and inform the court of first instance about the
issues between the parties and also warn the other parties of the case they are required to
meet, so as to give them the opportunity to present factual material and legal argument to
meet that case.’
[18] In Fischer and Another v Ramahlele and Others ,4 this Court held that it is not
for the court to raise new issues not traversed in the pleadings or affidavits. In Four
Wheel Drive Accessory Distributors CC v Rattan NO 5 this Court , after referring to
Fischer, cautioned that deciding a matter on unpleaded issues carries a risk of an
apprehension of bias, in that ‘[the court could then be seen to be intervening on
behalf of one of the parties, which would imperil its impartiality.’
[19] This Court in Fischer recognised, however, that there might be instances where
the court may, of its own accord, raise a question of law that emerges fully from the
evidence and is necessary for the decision of the case. An important caveat is that its
consideration does not cause prejudice or unfairness to the other party against
whom it is directed.’6
[20] In the present case, the legality of the deceased’s business was referred to
fleetingly by the court during the plaintiff’s testimony. The high court did not alert the
parties’ legal representatives that it was minded to determine the matter solely on
that basis and thus invite them to make submissions on it. Importantly, had the
parties been so alerted, the plaintiff would have considered her position. It was only
parties been so alerted, the plaintiff would have considered her position. It was only
4 Fischer and Another v Ramahlele and Others (Fischer) [2014] ZASCA 88; 2014 (4) SA 614 (SCA);
[2014] 3 All SA 395 (SCA) para 14; also see Four Wheel Drive Accessory Distributors CC v Rattan
NO (Four Wheel Drive) [2018] ZASCA 124; 2019 (3) SA 451 (SCA) paras 21-24.
5 Four Wheel Drive fn 4 ZASCA 124; 2019 (3) SA 451 (SCA).
6 Molusi and Others v Voges NO and Others (Molusi) [2016] ZACC 6; 2016 (3) SA 370 (CC); 2016 (7)
BCLR 839 (CC) para 28. See also Cusa v Tao Ying Metal Industries and Others [2008] ZACC 15;
2009 (2) SA 204 (CC); 2009 (1) BCLR 1 (CC); [2009] 1 BLLR 1 (CC); (2008) 29 ILJ 2461 (CC) para
68; Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) para 39.
8
when the judgment was delivered that it emerged that the high court determined the
case on the issue. As mentioned, the issue was neither pleaded nor canvassed with
the parties. The prejudice to the plaintiff and the minor child is self-evident. It was
thus impermissible for the high court, of its own accord, to extend its enquiry to an
issue that had neither been pleaded nor traversed at the trial.
[21] The plaintiff had not been called upon to meet the case that the deceased’s
source of income was illegal. The facts distinctly show that she had no reason to
expect to meet that case. It was common cause that the Fund had settled a separate
loss of support claim involving the deceased’s other minor child, without raising the
legality of the deceased’s income. Had it not been for a glaring disparity between the
amount claimed in the present appeal and the settlement amount in a separate
claim, the minor child’s claim would have been settled.
[22] In rejecting both the plaintiff’s and the minor child’s claims, the high court
completely lost sight of the fact that it had endorsed a pretrial arrangement between
the parties that the minor child’s loss of support claim was not in issue. This
acceptance implicitly included that the legality of the deceased’s income was not in
dispute. This makes sense as the Fund had settled another case involving the
deceased’s other minor child with a different mother. Thus, the Fund could not
tenably dispute the legality of the deceased’s income, havin g accepted it in another
case. This would potentially implicate s 9 of the Constitution, which guarantees
equality before the law and the right to equal protection and benefit of the law. This
underscores the need for a court to avoid raising issues not pleaded by the parties.
[23] In its engagement with counsel for the Fund, the high court remarked: ‘the
minor child will be entitled to support . . . whether the parents are married or not’.
minor child will be entitled to support . . . whether the parents are married or not’.
This was confirmed by counsel, who reiterated that it was not in dispute that the
deceased had a duty to support the minor child. The high court’s failure to consider
(a) its own factual findings, (b) an agreement between the parties, and (c) a
concession made by counsel regarding the minor child’s claim, amounted to a
misdirection.
9
[24] Counsel for the Fund urged this Court to pronounce on the legal status of the
deceased’s money lending business based on the general principle that courts are
not expected to endorse illegality. 7 I am not persuaded that sufficient facts exist to
justify engaging in that exercise. The high court’s only basis for its conclusion that
the deceased’s money lending business was illegal is the plaintiff’s fleeting answer to
the court’s question that the deceased’s money lending business was not registered.
The issue was not investigated further as to what the plaintiff understood by the
business being registered. The issue was simply left hanging. One would have
expected the court to address this issue, particularly because it was asked to make
an order for maintenance of a child who has a fundamental right to maintenance and
family care or parental care, nutrition and shelter, in terms of s 28(1) of the
Constitution.
[25] In addition, the high court failed to give due consideration to the constitutional
paramountcy of the child’s best interests entrenched in s 28(2) of the Constitution 8.
As the Constitutional Court emphasised in AB and Another v P ridwin Preparatory
School and Others9 ‘children are individual right-bearers and not “mere extensions of
[their] parents, umbilically destined to sink or swim with them”’. 10 In the present case,
the question that should have occupied the mind of the high court is how the
perceived illegality of the deceased’s income impacted on the minor child’s right to
support, which, it is common cause, the deceased was obliged to provide, and in
fact, did so.
[26] The high court made no reference to the interests of the minor child in its
judgment. As mentioned, it relied on this Court’s pre -constitution jurisprudence in
Dhlamini and Santam. The high court did so without considering whether, given the
constitutional values that underpin our jurisprudence, those authorities still hold
constitutional values that underpin our jurisprudence, those authorities still hold
good. Those authorities were underpinned by policy considerations and values
prevalent during that era. It is not at all clear that those policy considerations would
7 Merifon (Pty) Ltd v Greater Letaba Municipality and Another [2021] ZASCA 50; [2021] 4 All SA 356
(SCA); 2023 (1) SA 408 (SCA) para 26.
8 The supremacy of the child’s best interests is enshrined in s 28(2) of the Constitution which enjoins a
court to give paramountcy to the best interests of the child ‘in every matter concerning the child’.
See also Bannatyne v Bannatyne (Commissioner for Gender Equality, as Amicus Curiae) 2003 (2) SA
363 (CC) para 17.
9 AB and Another v Pridwin Preparatory School (Pridwin) 2020 (5) SA 327 (CC).
10 Pridwin fn 9 para 234.
10
prevail in the current constitutional dispensation. However, it is not necessary to
determine this issue in the present appeal.
[27] Counsel for the Fund pressed us to grant the claim in the plaintiff’s favour in
accordance with the draft order premised on Mr Potgieter’s actuarial report. This
submission was premised on the high court’s finding that, during his lifetime, the
deceased was a breadwinner supporting both the plaintiff and the minor child, and
that he owed both the plaintiff and the minor child a duty of support. I do not consider
this appropriate, given the nature of the misdirection committed by the high court
which clearly undermines the principles of a fair trial . At best, the matter should be
remitted to the high court for consideration of the quantum, taking into account the
deceased’s other source(s) of income, as the fund seems to have accepted.
Costs
[28] Costs should follow the result. 11 It is not in issue that the appellant was
substantially successful and that she should be entitled to costs. The only issue is
whether there is any justification for the costs of two counsel. In my view, there is not.
As correctly contended, the appeal before us is a straightforward matter that does
not warrant the award of costs of two counsel.
Order
[29] The following order is granted:
1 The appeal is upheld to the extent set out in paragraphs 2 and 3 hereinbelow.
2 The matter is remitted to the high court (differently constituted) to consider the
quantum.
3 The respondent is to pay the costs of the appeal.
___________________
N E CHILI
11 Kobusch and Others v Whitehead [2025] ZASCA 24; 2025 (3) SA 403 (SCA) para 24.
11
ACTING JUDGE OF APPEAL
Appearances
For the appellant: G D Lubbe and S Kok
Instructed by: Du Toit-Smuts, Mbombela
Phatshoane Henney, Bloemfontein
For the respondent: D P Mogagabe
Instructed by: State Attorney, Mbombela
State Attorney, Bloemfontein.