About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2015
>>
[2015] ZACC 9
|

|

Coughlan N.O. v Road Accident Fund (CCT160/14) [2015] ZACC 9; 2015 (4) SA 1 (CC); 2015 (6) BCLR 676 (CC) (20 April 2015)

Links to summary

Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 160/14
In
the matter between:
WAYNE
COUGHLAN N.O.
….................................................................................................
Applicant
and
ROAD
ACCIDENT
FUND
.....................................................................................................
Respondent
and
CENTRE
FOR CHILD
LAW
............................................................................................
Amicus
Curiae
Neutral
citation:
Coughlan N.O. v Road
Accident Fund
2015 ZACC 10
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, and
Tshiqi AJ.
Judgments:
Tshiqi AJ (unanimous)
Heard
on:
12 February 2015
Decided
on:
20 April 2015
Summary:
Decision on whether foster child grants
are
res inter alios acta
—
Deductibility of foster child grants from compensation for loss of
support payable to foster children — Duty of the
State —
Rights of vulnerable children — Constitution Act —
sections 27 and 28 — Children’s Act 38
of 2005 —
Sections 1, 156(1)(e) and 181 — Foster child grants are not
predicated on death of a parent — Nature
and purpose different
– Foster child grants not payable to the foster child but to
the foster parent —
Sections 18(2)
and (3) of the
Road Accident
Fund Act 56 of 1996
ORDER
On
appeal from the Supreme Court of Appeal (hearing an appeal from the
Western Cape Division of the High Court, Cape Town):
1.
Leave to appeal is granted.
2.
The appeal succeeds.
3.
The order of the Supreme Court of Appeal is set aside.
4.
The respondent is ordered to pay the costs in the Supreme Court of
Appeal and this Court, including the costs of two counsel,
where
applicable.
JUDGMENT
TSHIQI AJ
(Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J,
Jappie AJ, Khampepe J, Madlanga J, Molemela
AJ and Nkabinde J
concurring):
Introduction
[1]
This is an application for leave to appeal
against the whole judgment and order of the Supreme Court of Appeal
in terms of which
a decision of the Western Cape Division of the High
Court, Cape Town (High Court) against the respondent, the Road
Accident Fund
(RAF), was set aside.
[2]
The issue is whether foster child grants
paid to the foster parents of three children, on behalf of whom the
applicant acts, after
the death of their mother as a result of a
motor vehicle accident, are deductible from compensation payable by
the RAF for loss
of support to those children.  The curator on
behalf of the children contends that the foster child grants are not
deductible.
The RAF contends that they are, for failure to do
so would amount to double compensation.
[3]
The
High Court held that the grants were
res
inter alios acta
[1]
and that the children were entitled to the full amount of the damages
suffered as loss of support of their mother.  The Supreme
Court
of Appeal held a contrary view.  It held that, on the facts
presented, it was satisfied that but for the death of the
children’s
mother, the foster parent would not have claimed the foster child
grants and that the foster child grants are
deductible.  It
upheld the appeal by the RAF.
Parties
[4]
The
applicant is Mr Wayne Saleem Coughlan N.O., a practising advocate and
member of the Cape Bar.  He brings this application
in his
representative capacity as curator
ad
litem
[2]
to
claim damages in respect of past and future loss of support on behalf
of the three children: Mr Jeslin Shelaine Williams born
on 22
February 1988, Ms Alfreda Kim Beyers born on 8 August 1992, and Mr
Elton Jason Beyers born on 22 May 1995.
All the
children have now reached the age of majority.  Their mother Ms
Noelle Margaret Beyers (Ms Beyers), then a pedestrian,
was killed in
a road accident in June 2002.  Their father predeceased their
mother.
[5]
The
respondent is the RAF, a juristic person established under the
Road Accident Fund Act
[3]
(RAF Act).  The RAF provides compulsory cover to all users of
South African roads against injuries sustained or deaths arising
from
accidents including motor vehicles within the borders of South
Africa.  This cover is in the form of indemnity insurance
to
persons who cause accidents, as well as personal injury and death
insurance to victims of the accidents and their families.
[6]
The
Centre for Child Law (Centre) was admitted to the proceedings as an
amicus
curiae
.
[4]
It was established by the University of Pretoria and is a law
clinic registered with the Law Society of the Northern Provinces.

Its main objective is to establish and promote child law and
uphold the rights of children in South Africa, within an
international
and regional context, and in particular to use the law
and litigation as an instrument to advance such interests.  It
has
been allowed to present both oral and written submissions on the
deductibility of foster child grants from damages awards and also
on
a separate but related issue concerning the deductibility of child
support grants.
Factual
background
[7]
Prior to her death, Ms Beyers was
imprisoned for a brief period during which the children were placed
in the care of her parents,
Mr and Mrs De Long.  Upon her
release from prison Ms Beyers initially resided at her parental home
together with the children
and her parents.  She managed to find
employment as a builder, on a temporary basis, at a salary of R80 per
day.  From
March 2002 she moved from her parental home and
resided at her own home with one of the children, Alfreda, until her
death in June
2002.  She was responsible for the maintenance of
all her children.
[8]
After
Ms Beyers died, her parents applied to the Children’s Court to
be appointed as foster parents to the children and were
so appointed
in August 2002 in terms of the Child Care Act.
[5]
As a result of the appointment they became entitled to receive foster
child grants in terms of the Social Assistance Act.
[6]
[9]
The RAF has admitted liability to
compensate the children for 100% of the proven damages arising from
the death of their mother.
The parties agreed that the total
quantum of the loss of support for all three children is an amount of
R112 942.  At
the time of institution of the action, the foster
child grants received by the foster parents were in the amount of
R146 790.
Litigation
history
In
the High Court
[10]
The High Court was required to determine
whether the foster child grants paid fell to be deducted from the
agreed amount for the
loss of support, or whether those payments were
to be considered as
res inter alios
acta
, and therefore not deductible.
The question was presented as a stated case and the only
evidence that was led was that of
the foster mother, Mrs De Long.
[11]
The
curator contended that foster child grants are payable to people who
elect to become foster parents and not to the child and
are to be
considered as
res inter alios acta
and therefore not deductible.  For that contention reliance was
placed on
Makhuvela
v Road Accident Fund
,
[7]
where the Gauteng Local Division of the High Court stated that the
primary purpose of foster child grants is the realisation of
the
constitutional rights of the child through the intervention of the
foster parent.  And that the grant is not payable to
the child
but to the foster parent who may spend the whole or part of it on the
foster child.
[12]
The
curator also contended that the enquiry to determine which benefits
are deductible and which are
res
inter alios acta
should entail considerations of public policy, reasonableness and
justice.  In support of that submission he placed reliance
on
the case of
Zysset
& Others v Santam Limited
,
[8]
where
it was held that a court faced with the enquiry must take into
account two conflicting policy considerations: that a dependant

should not receive double compensation on the one hand and a
wrongdoer should on the other hand not be relieved of liability
because
of fortuitous benefits received by the dependant.
[13]
The RAF submitted that the collision was a
direct cause for the foster parents applying for the grant.  Foster
care grants
as well as the funds from the RAF emanate from National
Treasury and if the grants are not deducted, the plaintiff would be
given
double compensation at the expense of the tax-payer.
[14]
For
that contention the RAF relied on the Supreme Court of Appeal
judgment in
Road
Accident Fund v Timis
.
[9]
Timis
was concerned with child support grants, and in finding that these
should be deducted from the damages for loss of support, the
Court
found that the children received the social grant because they had
lost their father, a breadwinner, and that the child support
grants
were directly linked to the death of the father.  Further, that
funds paid out in terms of the RAF Act and the Social
Assistance Act
are funded by the public through two state organs.  Not to
deduct the child support grant would amount to double
recovery and it
was not the purpose of the legislation to compensate the dependants
twice.
[15]
The High Court rejected the RAF’s
reliance on
Timis
,
which it did not follow on the ground that
Timis
was dealing with child care grants.  It found that on the
evidence presented before it, there were sufficient grounds for
the
children to be placed in the foster care of the grandparents even
before the death of their mother as they were in need of
care.  It
further held that the death of their mother only formalised their
placement as foster children under their grandparents.
[16]
The High Court held that the death of their
mother did not cause the grandparents to take care of the children,
but that the need
for the children to be cared for was there even
before their mother’s death.  The High Court held further
that the later
formalisation and appointment of the grandparents as
foster parents and the subsequent grants were to enable them to
comply with
the obligations they already had prior to their mother’s
death.  The High Court concluded that the foster child grants

were
res inter alios acta
and ordered the RAF to pay the proven damages together with the costs
of the action.
In
the Supreme Court of Appeal
[17]
The RAF lodged an appeal against the order
of the High Court to the Supreme Court of Appeal.  It argued
that the High Court
had incorrectly relied on
Makhuvela
in its finding that the foster child grants were not paid to the
children but to the foster parents and were therefore not
deductible.
It urged the Supreme Court of Appeal instead to
follow its judgment in
Timis
,
and to extend its reasoning to foster child grants.
[18]
The Supreme Court of Appeal considered the
case it had to determine to be, firstly, whether there is any real
distinction between
the child support grants made in
Timis
and the foster child grants made in
Makhuvela
.
And secondly, to determine the general principles relating to
the deduction of amounts paid to dependants by reason of the
death of
a breadwinner from awards for loss of support against the RAF or its
predecessor funds.
[19]
The Court upheld the appeal.  It found
that there was no difference in substance between the two kinds of
grants.  It
then considered the facts of the matter and found
that there was no evidence showing that the grandparents needed
additional funds
for the support of the children before the death of
their mother, nor that they would have applied for the grants if she
had not
died.  That Court concluded that as the grandparents
were appointed as foster parents after the death of their daughter,
but
for her death, the foster parents would not have claimed the
foster child grants.
[20]
The Court also stated that its finding does
not mean that there is any general principle precluding an award of
damages for loss
of support where dependants have had the benefit of
social support grants.  Further, it stated that the facts should
determine
whether there has been an actual financial loss caused by
the death.  Where there is evidence that social support grants
are
warranted, and that double compensation will not ensue, an award
of damages may well be appropriate.
[21]
That Court set aside the decision of the
High Court.  It replaced it with an order stating that the
foster child grants already
paid to the foster parents of the
children are to be taken into account in assessing the damages to be
awarded for their loss of
support.  Since that amount exceeded
the one agreed to be payable by the RAF, no order as to payment was
made.
In
this Court
Jurisdiction
[22]
The
question whether foster child grants are deductible from compensation
for loss of support payable to foster children raises
important
constitutional issues.  It concerns the support of vulnerable
children, whose rights are enshrined in the Constitution
including in
terms of sections 27 and 28.
[10]
There is no doubt that this Court has jurisdiction to entertain this
application.
Application
for leave to appeal
[23]
The enquiry before the High Court and the
Supreme Court of Appeal was limited to the facts of the present
dispute between the curator
and the RAF.  It entailed whether
the foster child grants already paid to the three children in this
matter are deductible
from the award of damages payable by the RAF
for the loss of support to those children.  The curator argues
before us that
the facts of a particular matter are of no moment
because the payment of foster child grants is not dependent on the
death of a
parent or on the resultant claim for loss of support, but
on a child’s situation of need, regardless of the cause of the
need.  In some cases the need will arise as a result of the
death of a parent from a motor vehicle accident, in some instances

through the negligence of a third party and in some the need may
arise even if the parent is still alive but unable to take care
of
the child.
[24]
If this Court is minded to agree with the
curator, then the pertinent question to be raised is whether,
following the death of a
parent as a result of a motor vehicle
accident, foster child grants are deductible from compensation
payable by the RAF for loss
of support to those children.
[25]
An answer to that broader enquiry will lay
down a general principle applicable not only to the individual
children in this matter
but to all children who have a claim for loss
of support arising from the death of their parents, and who are
placed under foster
care where the foster parent receives a foster
child grant.
[26]
The Centre urges this Court to broaden the
enquiry and, if it is inclined to accept the proposition by the
curator and set a general
principle applicable to the deductibility
of foster child grants, it should extend that principle to child
support grants because
there is no distinction between the two kinds
of grants.
[27]
As the Supreme Court of Appeal did not deal
with the general principle now facing this Court, the legal position
concerning the
deductibility or otherwise of foster child grants from
claims for loss of support is not settled.  The public
importance is
underpinned by the fact that children most affected are
poor and vulnerable.  They are children whose parents are either
deceased
or not able to take care of them.  The application for
leave must therefore succeed.
Merits
Issues
[28]
The curator contends:
(a)
The
state has a duty under section 28(1)(b) and (c)
[11]
of the Constitution to ensure that children like the children of Ms
Beyers are appropriately cared for.  It can do so either
by
providing the care itself or by encouraging and enabling others to do
so.  Whichever of those options it chooses when it
fulfils those
duties, cannot be equated to compensation for patrimonial loss and
consequently no double compensation arises.
(b)
In the event this Court finds that double
compensation arises, the payment of foster child grants to foster
parents is
res inter alios acta
.
[29]
The RAF submits that there is no inflexible
rule that finds application when determining whether foster child
grants are
res inter alios acta
for purposes of quantifying damages for loss of support and that the
facts of each matter must be determinative.  In this
case it was
as a result of the death of Ms Beyers that the child grants were paid
to Mr and Mrs De Long, as foster parents.
[30]
The RAF further submits that the foster
child grants paid to the children served the very purpose that an
award of damages would
do, that is, providing the children with the
financial support lost as a result of the death of their mother and
that in the circumstances
the children did not suffer any loss that
would entitle them to an award of damages.
[31]
Regarding the effect of
Timis
on this matter, the RAF contended that the Supreme Court of Appeal
considered itself bound by
Timis
and that, to the extent that the Supreme Court of Appeal in
Timis
held that the deduction of child support grants would not render the
children destitute, such a finding could only have been made
with
reference to the children’s constitutional rights in terms of
sections 27(1)(c), 28(1) and 28(2).  Regarding the
reasoning in
Makhuvela
that the foster child grants are not paid to the child but to the
foster parent, the RAF contends that the payment is inextricably

linked to the needs of the child and, although paid to the parent,
must be utilised for the needs of the child.
[32]
The Centre supports the contentions of the
curator and also submits that this Court should find that the
decision in
Timis
was incorrect.  Regarding the invitation by the Centre to
broaden the enquiry, the RAF concedes that the two kinds of grants

are interrelated; that this Court should make a determination
applicable to both and also make a pronouncement on whether
Timis
was correctly decided.
Does
the payment of grants amount to double compensation?
[33]
In order to answer that question I propose
to address:
(a)
The state’s constitutional obligation
in terms of sections 27 and 28 to children in need of care;
(b)
The nature and purpose of foster child
grants vis-a-vis that of compensation for loss of support;
(c)
Whether the foster child grant accrues to
the foster parent and not the child as alluded to in
Makhuvela
;
and
(d)
Whether there is any causal link between
foster child grants and compensation for loss of support.
State’s
constitutional obligations to children in need of care
[34]
The state is obliged in terms of sections
27(1)(c) and (2) of the Constitution to take reasonable legislative
measures, within its
available resources, to provide everyone with
access to social security, including, if they are unable to support
themselves and
their dependants, appropriate social assistance.
[35]
In terms of section 28(1)(b) every child
has the right to family care, parental care, or to appropriate
alternative care when removed
from the family environment.
Section 28(1)(c) provides that every child has the right to basic
nutrition, shelter, basic
health care services and social services.
Section 28(1)(d) provides that every child has the right to be
protected from maltreatment,
neglect, abuse or degradation.
Section 28(2) provides that a child’s best interests are
of paramount importance
in every matter concerning the child.
[36]
In
Government
of the Republic of South Africa and others v Grootboom and others
[12]
this Court stated that sections 28(1)(b) and (c) ensure that children
are properly cared for by their parents or families, and
that they
receive appropriate alternative care in the absence of parental or
family care.  The Children’s Act,
[13]
Child Care Amendment Act
[14]
and Social Assistance Act are some of the legislation aimed at giving
effect to those rights.
[37]
Section 156(1)(e) of the Children’s
Act lists various options that are open to the Children’s Court
if it finds that
a child has no parent or care-giver or has a parent
or care-giver but that person is unable or unsuitable to care for the
child:
“
(i)
foster care with a suitable foster parent;
(ii)
foster care with a group of persons or an organisation operating in a
cluster scheme;
(iii)
temporary safe care, pending an application for, and finalisation of,
the adoption of the child;
(iv)
shared care where different care-givers or centres alternate in
taking responsibility for the care of the child at different
times or
periods; or
(v)
a child and youth care centre designated in terms of section 158 that
provides a residential care programme suited to the child’s

needs”.
The
system of foster care is thus listed as one of the means through
which the state fulfils its obligations to a child who is in
need of
care, but it is not the only option available in terms of section
156(1)(e).  The state also has the option to place
the children
in youth care centres.
[15]
If the contention by the RAF is that the award of damages is
deductible from the foster child grants, then it begs the question

whether the cost of the service the state incurs for placing children
in youth centres is also deductible.  As the answer
to that
question is in the negative, it means that there is differential
treatment between children in foster care and those placed
in youth
care centres.  That differentiation would be irrational.
[16]
There is thus no basis for differentiation between children in foster
care and youth care centres.
Foster care is
unrelated to damages for loss of support
[38]
The Children’s Act provides that the
purposes of foster care are to—
“
(a)
protect and nurture children by providing a safe, healthy environment
with positive support;
(b)
promote the goals of permanency planning, first towards family
reunification, or by connecting children to other safe and nurturing

family relationships intended to last a lifetime; and
(c)
respect the individual and family by demonstrating a respect for
cultural, ethnic and community diversity.”
[17]
[39]
The Children’s Act also provides that
‘care’ in relation to a child, includes where
appropriate—
“
(a)
within available means providing the child with—
(i)
a suitable place to live;
(ii)
living conditions that are conducive to the child’s health,
well-being and development; and
(iii)
the necessary financial support;
(b)
safeguarding and promoting the well-being of the child;
(c)
protecting the child from maltreatment, abuse, neglect, degradation,
discrimination, exploitation and any other physical, emotional
or
moral harm or hazards;
(d)
respecting, protecting, promoting and securing the fulfilment of, and
guarding against any infringement of, the child’s
rights set
out in the Bill of Rights and the principles set out in Chapter 2 of
this Act;
(e)
guiding, directing and securing the child’s education and
upbringing, including religious and cultural education and
upbringing, in a manner appropriate to the child’s age,
maturity and stage of development;
(f)
guiding, advising and assisting the child in decisions to be taken by
the child in a manner appropriate to the child’s
age, maturity
and stage of development;
(g)
guiding the behaviour of the child in a humane manner;
(h)
maintaining a sound relationship with the child;
(i)
accommodating any special needs that the child may have; and
(j)
generally, ensuring that the best interests of the child is the
paramount concern in all matters affecting the child”.
[18]
[40]
It is evident from these provisions that
foster care is expansive and extends beyond mere money and
encompasses parenting, love,
care, nurturing, discipline and other
benefits of raising a child in a family environment.  In
preferring foster parenting,
the state is able to attempt to provide
children with as many of the benefits of family life as possible.
Family life is
not measurable and cannot be quantified.
[41]
On the other hand, compensation by the RAF
is calculated on the basis of monetary income and is aimed at placing
a child in a position
in which they would have been if the parent had
not died.  It is primarily meant and calculated to compensate
the child for
loss related to his or her material needs.  The
other aspects that go hand in hand with the notion of care are not
taken into
account.  Of course the RAF’s argument is
limited to the monetary component of the foster care grant, which it
contends
should be subtracted from the compensation to which the
fostered children are entitled.  Nevertheless, the non-monetary
dimension
of fostering reveals the inappositeness of comparing a
grant designed to encourage fostering with compensation for the loss
of
a parental breadwinner.
[42]
In
Jooste
v Botha
[19]
the Court recognised that there are two discrete aspects of a
parent-child relationship: an economic aspect of providing for the

child’s material needs; and an intangible aspect of providing
for his or her psychological, emotional and developmental needs.
[43]
The loss of provision for material needs
can be adequately compensated in money, which has the effect of
placing a child in the
same position as he or she would have been,
but for the delict.  However, parental care cannot be
compensated for by the payment
of money nor can it be readily met by
institutional care.
[44]
It follows that an award for damages for
loss of support is no substitute for foster parenting and there is no
basis to deprive
a child of compensation for loss of support because
they are in foster care.
A
foster child grant is not paid to the child but to the foster parent
[45]
It
is the foster parent who is entitled to receive the grant.  This
is underpinned by the Regulations, which provide that a
foster parent
is eligible for a foster child grant if the child is placed in his or
her custody; and the foster child grant lapses
on the death of the
last living foster parent.
[20]
It forms part of the patrimony of the foster parent.  The
foster parent may spend it in the manner she wishes, provided
it is
in the best interests of the child.  The child has no claim to
it.  As stated in
Makhuvela
:
“
A
foster child grant may obviously be used to support the child, but
its primary purpose is the realisation of the constitutional
rights
of the child through the intervention of the foster parent. It is
given to the foster parent who may spend the whole or
part of it on
the foster child.
.
. .
There
may well be some or other connection between their appointment and
the death of the child’s father.  That is not
decisive of
the case.  The grant is payable to the foster parent and not to
the child.
”
[21]
[46]
Payment for loss of support on the other
hand is payable to the child in order to compensate the child for the
patrimonial loss
suffered by the loss of the monetary contribution
that the deceased parent would have made towards the support of the
child.  It
forms part of the patrimony of the child.  It
amounts to an income replacement resulting from the death of the
parent as a
result of a motor vehicle accident.  There is no
conceivable basis on which to deduct payments made to foster parents
(that
the child has no claim to) from the child’s award for
compensation for loss of support.
Is
there a causal link?
[47]
The
Social Assistance Act provides that eligibility for a foster child
grant is dependent on a child being in need of care.
[22]
The need to appoint a foster parent is thus not predicated on
the death of a parent but on the child being in need of care,

whatever the cause.  A child may have a living parent, but
nevertheless be in need of care even if the parent has not died.
[48]
The approach advanced by the RAF that
foster child grants are deductible from compensation for loss of
support would lead to intolerable
anomalies and to results that are
illogical, unjustifiable and inconsistent with the Constitution.
This can best be illustrated
through the examples that follow.
[49]
The
first example is that of a child who is placed in foster care, and
whose compensation for loss of support is reduced in the
manner
proposed by the RAF.  If the foster parent subsequently dies,
the foster care comes to an end.  If another foster
parent does
not step into the shoes of that parent, and the child is placed in a
child and youth care centre the child’s
compensation from the
RAF will not be increased to allow for the fact that the foster child
grant has come to an end.  That
claim would have been finalised
and in terms of
Evins
v Shield Insurance Co Ltd
[23]
the child would be
precluded from claiming even though that loss manifests itself only
after the conclusion of the original action.
The result is that
the child would have been prejudiced by the fact that he or she was
initially placed in foster care.
[50]
One more telling example is if we consider
a case where the parent does not die from a motor vehicle accident,
but from some other
delict where the child is entitled to claim for
loss of support.  It would be illogical that that child could
claim damages
for the delict and the foster parents receive the
foster care grant but the child in this case, whose parent died in a
motor vehicle
accident, cannot.  This example is especially
persuasive because the purpose of the RAF is to step into the shoes
of the wrongdoer
and therefore should be liable the same as any
wrongdoer.
[51]
In sum, the payment of compensation for
loss of support to foster children does not amount to double
compensation: the nature and
purpose of the grant is different from
compensation, these grants arise from the constitutional obligations
of the state to provide
for children in need of care, they are not
paid to the children and they are not predicated on the death of a
parent.  In
the light of the conclusion that there is no double
compensation, it is not necessary for me to deal with whether the
payments
are
res inter alios acta
.
[52]
That then brings me to the invitation by
the Centre, which was supported by the RAF and the curator, to deal
with child support
grants.
Is
there a distinction between child support grants and foster child
grants?
[53]
I accept the invitation by the parties
because child support grants are a matter of public importance,
particularly to vulnerable
people and to children.  I find it in
the interests of justice that I consider this issue although it is
not part of the original
dispute between the parties.  Moreover,
none of the parties before us is prejudiced by dealing with
Timis.
[54]
The Centre submits that there is no
distinction in principle between the two kinds of grants except for
the fact that the means
test is not applicable to foster child
grants.  The RAF readily conceded that the means test is not
applicable to foster child
grants, that the two kinds of grants are
interrelated and that this Court should pronounce on
Timis
.
I am minded to agree.  Section 5 of the Social Assistance
Act sets out the criteria for eligibility for all social
grants
including child support and foster child grants.  In terms of
section 6, eligibility for a child support grant
is dependent on
whether the parent is the primary care giver to the child and, in
terms of section 8, eligibility for a foster
child grant is dependent
on whether the child is in need of care.
[55]
The
import of the means test is that foster child grants are payable for
as long as the child is placed in foster care irrespective
of the
level of income of the foster parent.
[24]
On the other hand, child support grants are payable only to
parents below a certain level of income.
[25]
Other than that, there is no other distinguishing feature between
those two kinds of grants.  Their nature and purpose
is to
provide for children in need of care, and in both instances the grant
is payable to the foster parent or the primary care
giver who then
utilises it as a contribution for the purpose of caring for the
child.  In both instances the grants are not
predicated on the
calamity of death of the parent.
[56]
That then brings me to whether
Timis
was correctly decided.  In
Timis
the Supreme Court of Appeal stated:
“
In
this matter, the state assumed responsibility for the support of the
children as a result of the breadwinner’s death.  The

moneys paid out in terms of the
Road Accident Fund Act and
the Social
Assistance Act are funded by the public through two State organs.
Not to deduct the child grant would amount to
double recovery
by the respondent at the expense of the taxpayer and this is
incapable of justification.  In my view, it was
not the
intention of the Legislature to compensate the dependants twice.”
[26]
[57]
That reasoning is not sustainable.  It
fails to acknowledge the different roles that the state assumes when
it makes the payments.
In cases of child support grants, the
state assumes the role of a caregiver as enjoined by the
Constitution.  When it pays
compensation for loss of support
through the RAF it steps into the shoes of the wrongdoer.  It is
irrelevant that the money
is paid by two state organs because its
objectives are completely different and the state, when it makes the
payment, does so to
fulfil a myriad of obligations.  Thus the
fact that child support grants, foster child grants and damages from
the RAF are
paid from National Treasury is of no moment.
[58]
Like foster child grants, child support
grants are not predicated on the death of a parent.  The fact
that the state assumed
responsibility for the support of the children
after the death of the breadwinner should not have been held to be a
determining
factor on whether the caregiver qualified for the child
support grant or not.
[59]
The
purpose of the RAF is to give the greatest possible protection to
claimants.
[27]
A
deduction of either foster child or child support grants would
undermine that purpose.  A reading of the RAF Act suggests
that
those grants should not be deductible.  The RAF Act expressly
provides that
[28]
double
compensation for persons who are entitled to claim under the
Compensation for Occupational Injuries and Disease Act
[29]
should be deducted from compensation by the RAF but there is no
equivalent reference to social grants.
[60]
I conclude that the outcome in
Timis
was incorrect.  Child support
grants are for the reasons stated above on the same footing with
foster child grants and should
not be taken into account when an
award of damages for loss of support is made.
Order
[61]
I make the following order:
1.
Leave to appeal is granted.
2.
The appeal succeeds.
3.
The order of the Supreme Court of Appeal is set aside.
4.
The respondent is ordered to pay the costs in the Supreme Court of
Appeal and this Court, including the costs of two counsel,
where
applicable.
For
the Applicants: G M Budlender SC and A D Maher
instructed
by Lester & Associates.
For
the Respondent:
M Salie SC and S Witten
instructed
by Robert Charles Attorneys.
For
the Amicus Curiae:
S Budlender
instructed
by the Centre for Child Law.
[1]
Res
inter alios acta
is a common law doctrine which holds that a contract cannot
adversely affect the rights of one who is not a party to the
contract.
‘
Res
inter alios’
is taken to mean: A matter between others is not our business.
[2]
A
curator
ad
litem
is
a legal representative appointed by a court to represent, during
legal proceedings, the best interests of a person who lacks
the
mental capacity to make decisions for themselves.  A curator
may be appointed for a child or for a person who is mentally
or
physically incapacitated.
[3]
56
of 1996.
[4]
Friend
of the Court.
[5]
74
of 1983.
[6]
59
of 1992, replaced by the
Social Assistance Act 13 of 2004
.
[7]
Makhuvela
v Road Accident Fund
[2009] ZAGPJHC 18;
2010 (1) SA 29
(
Makhuvela
)
at para 8.
[8]
Zysset
& Others v Santam Limited
1996 (1) SA 273
(C) at 278B-D and 278H – 279C.
[9]
Road
Accident Fund v Timis
[2010]
ZASCA 30
; 2010 JDR 0284 (SCA) (
Timis
).
[10]
Section
27 of the Constitution states the following:
“
(1)
Everyone has the right to have access to—
(a)
health care services, including reproductive health care;
(b)
sufficient food and water; and
(c)
social security, including, if they are unable to support themselves
and their dependants, appropriate social assistance.
(2)
The state must take reasonable legislative and other measures,
within its available resources, to achieve the progressive

realisation of each of these rights.
(3)
No one may be refused emergency medical treatment.”
Section
28 of the Constitution states the following:
“
(1)
Every child has the right—
(a)
to a name and a nationality from birth;
(b)
to family care or parental care, or to appropriate alternative care
when removed from the family environment;
(c)
to basic nutrition, shelter, basic health care services and social
services;
(d)
to be protected from maltreatment, neglect, abuse or degradation;
(e)
to be protected from exploitative labour practices;
(f)
not to be required or permitted to perform work or provide services
that—
(i)
are inappropriate for a person of that child’s age; or
(ii)
place at risk the child’s well-being, education, physical or
mental health or spiritual, moral or social development;
(g)
not to be detained except as a measure of last resort, in which
case, in addition to the rights a child enjoys under sections
12 and
35, the child may be detained only for the shortest appropriate
period of time, and has the right to be—
(i)
kept separately from detained persons over
the age of 18 years; and
(ii)
treated in a manner, and kept in conditions, that take account of
the child’s age;
(h)
to have a legal practitioner assigned to the child by the state, and
at state expense, in civil proceedings affecting the
child, if
substantial injustice would otherwise result; and
(i)
not to be used directly in armed conflict, and to be protected in
times of armed conflict.
(2)
A child’s best interests are of paramount importance in every
matter concerning the child.
(3)
In this section “child” means a person under the age of
18 years.”
[11]
Id.
[12]
Government
of the Republic of South Africa and Others v Grootboom and Others
[2000] ZACC 19
;
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) at
para 76.
[13]
38
of 2005.
[14]
96
of 1996.
[15]
It
is interesting to note that paragraph 3 of the UN Guidelines for the
Alternative Care of Children makes it clear that family
placements
are the preferred option and are to be supported by the state.
[16]
It
is also inconsistent with an approach that favours family as a
placement option and the objectives of paragraph 108 of the
UN
Guidelines on the Alternative Care of Children which states:
“
The
forms of financing care provision should never be such as to
encourage a child’s unnecessary placement or prolonged
stay in
care arrangements organized or provided by an agency or facility.”
[17]
Section
181 of the Children’s Act above n 13.
[18]
Id
at section 1.
[19]
Jooste
v Botha
2000
(2) SA 199
(T);
2000 (2) BCLR 187
(T) at 201E-F.
[20]
Regulations
for the
Social Assistance Act, GN
R898
GG
31356, 22 August 2008.  See especially
regulation 7
and
28
(3).
[21]
Above
n 7 at paras 8-9.
[22]
Social
Assistance Act above
n 6 at
section 8.
[23]
Evins
v Shield Insurance Co Ltd
1980
(2) SA 814
(A) at 835E;
[1980] 2 All SA 40
(A) at para 53.
[24]
Annexure
C to the
Social Assistance Act above
n 6.
[25]
Annexure
B id.
[26]
Above
n 9 at 13.
[27]
See
Mvumvu
v Minister for Transport
[2011] ZACC 1
;
2011 (2) SA 473
(CC);
2011 (5) BCLR 488
(CC) at para
20; and
Engelbrecht
v RAF
[2007] ZACC 1
;
2007 (6) SA 96
(CC);
2007 (5) BCLR 457
(CC) at para
23.
[28]
Sections
18(2)
and (3) state the following:
“
(2)
Without derogating from any liability of the Fund or an agent to pay
costs awarded against it or such agent in any legal proceedings,

where the loss or damage contemplated in
section 17
is suffered as a
result of bodily injury to or death of any person who, at the time
of the occurrence which caused that injury
or death, was being
conveyed in or on the motor vehicle concerned and who was an
employee of the driver or owner of that motor
vehicle and the third
party is entitled to compensation under the
Compensation
for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of
1993)
, in respect of such injury or
death—
(a)
the liability of the Fund or such agent, in respect of the bodily
injury to or death of any one such employee, shall be limited
in
total to the amount representing the difference between the amount
which that third party could, but for this paragraph, have
claimed
from the Fund or such agent and any lesser amount to which that
third party is entitled by way of compensation under
the said Act;
and
(b)
the Fund or such agent shall not be liable under the said Act for
the amount of the compensation to which any such third party
is
entitled thereunder.
(3)
Without derogating from any liability of the Fund or an agent to pay
costs awarded against it or such agent in any legal proceedings,

where the loss or damage contemplated in section 17 is suffered as a
result of bodily injury to or death of a member of the South
African
National Defence Force, other than a person referred to in
subsection (2), and the third party is entitled to compensation

under the Defence Act, 1957, or another Act of Parliament
governing the said Force in respect of such injury or death—
(a)
the liability of the Fund or such agent in respect of the bodily
injury to or death of any such member of the said Force,
shall be
limited in total to the amount representing the difference between
the amount which that third party could, but for
this paragraph,
have claimed from the Fund or such agent and any lesser amount to
which that third party is entitled by way of
compensation under the
said Defence Act or the said other Act; and
(b)
the Fund or such agent shall not be liable under the said Defence
Act or the said other Act for the amount of the compensation
to
which any such third party is entitled thereunder.”
[29]
130
of 1993.