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[2013] ZAWCHC 212
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Coughlan N.O. v Road Accident Fund (977/08) [2013] ZAWCHC 212 (6 June 2013)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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SAFLII
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Republic
of South Africa
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
HIGH COURT, CAPE TOWN)
CASE NO: 977/08
In the matter
between:
WAYNE COUGHLAN N.O.
…..............................................................................................................
Plaintiff
and
THE ROAD ACCIDENT
FUND
.........................................................................................................
Defendant
JUDGMENT
DELIVERED ON 6 JUNE 2013
HENNEY. J
Introduction
[1] On 16 June 2002
N[...] M[...] B[...] (“the deceased") was involved in a
fetal collision on the R300 near Delft in
this province. She was hit
by a motor vehicle bearing registration number C[...] ("the
insured vehicle”).
The deceased left
behind 3 minor children, J[...] Wiliams born on [...] 1988, A[...]
B[...] born on […] 1992 and E[...] J[...]
B[...] born on [...]
1995 ("the minors”). J[...] and A[...] are no longer
minors. The children's biological father passed
away before that in
2001.
[2]
Subsequent to the collision and on 13 August 2002, the Children’s
Court for the Magisterial District of Mitchell’s
Plain and
pursuant to the provisions of Section 13(3) and 15(1) of Act 74 of
1983, ordered that the minor children be placed in
the foster care of
the grandparents Mr and Mrs D[...] L[...]. As a result of this, the
foster, child grants received as of the
date of the hearing of this
matter for the children amounted to R146 790,00.
[3] It is further
common cause that the Defendant has conceded liability to compensate
the Plaintiff in his representative capacity
for 100% of proven
damages suffered as a result of the death of the deceased.
[4]
The Defendant contends that as per the Children’s Court
enquiry, that the collision was the
sine
quo non
for
the foster parent applying for the grant.
The
Plaintiff contends that child foster grants are paid to people who
elect to become foster parents and such payments are to be
considered
as
res inter alios
acta
and
therefore non-deductible.
The Facts
[5]
During the hearing of this matter, the Plaintiff called the
grandmother/foster parent of the minor children. According to Mrs
D[...] L[...] the children came to stay with her on different dates,
while their mother was still alive. E[...] came to stay with
her on
19 September 2001, A[...] on 11 January 2002 and J[...] on 14 January
2002. This was during a period whilst the deceased
was still alive,
but was imprisoned. The deceased was unemployed for a while but later
found employment again. At that stage the
deceased was staying with
her.
[6]
In March 2002 the deceased went to stay in her own place and A[...]
went to stay with the two other children remained in her
care. The
deceased made a small contribution towards the children when she was
alive. She did not have any difficulty in supporting
the children,
but this money was not enough.
[7] After she died
she loss this means of support and applied for the foster grant. She
receives an amount of R770,00 per month
for each of the children as
foster grant. She uses the grant to buy food for these children. The
foster grant is much more than
the contribution the mother made on a
monthly basis.
[8]
Issue
for Consideration
Whether
the foster grant payment received should be deducted from the amount
agreed on for loss of support or whether such payments
are to be
considered
res
inter alios acta
and
therefore non-deductible.
[9]
Plaintiff’s
Argument
The
Plaintiff contends that child foster grants are paid to people who
elect to become foster parents and that such payment is to
be
considered as
res
inter alios acta.
The
patrimonial damages suffered by a Plaintiff are the difference
between the patrimony before and after the commentaries of a
delict.
[10]
The Plaintiff argues that there is an exception to the general rule,
that in order to determine a Plaintiffs patrimony after
the
commission of a delict, that advantageous consequence resulting
therefrom should be taken into account. When faced with such
a
situation a Court will have to determine which benefits are
deductible and which are considered
res
inter alios acta
or
collateral benefits.
[11]
The Plaintiff argues with reference to
Zysset
& Others v Santam Limited
1996 (1) SA 273
C at 278 B-D, and
278 H - 279
C
that such an enquiry must at least involve considerations of public
policy, reasonableness and justice, which according to this
dictum in
turn must necessarily involve, a weighing up of two conflicting
considerations.
The one is that the
Plaintiff should not receive double compensation. The other is that
the wrong-doer or his insurer ought not
to be relieved of liability
on account of some fortuitous event such as the generosity of a third
party.
[12]
The Plaintiff contends that the foster parent grant is a grant
payable to the foster parent to enable him to comply with his
obligations to the child. The child has no claim to the grant. The
grant therefore is
res
inter alios acta
and
not deductible from the damages claimed, in this regard the Plaintiff
relied on the dictum .of
Malan
J
in
Makhuvela
v
Road Accident Fund
2010 (1) SA 29
(GSJ)
page
34
at
paragraph
[8].
[13]
The
Defendant’s Argument
The
Defendant relied on the dictum of the
Road
Accident Fund v N F Timis (29/09)
[2010] ZA SCA 30
(26 March 2010),
where
it was held that in the case of a child care grant it is deductible
from the damages to be awarded in respect of children.
The Court held
that when a child support grant is payable in terms of Section 6 of
Social Assistance Act 13 of 2004
at... paragraph [6]:
"...
Each case in which
the deduction of
a
benefit is in
issue must, of course, be considered on its own facts and having
regard to the applicable statutes. It is necessary
to have regard to
the person or objects of the Act. The purpose of the grant is to
supplement the income of indigent families.
The grants are meant for
those who have insufficient means to support themselves and to
provide for the child who does not have
maintenance."
[14] Mr Salie on
behalf of the Defendant argued that a foster care grant should only
be awarded to a child in need of care and that
such grant must be for
the benefit of the foster child and not the foster parent. Such
grants in terms of Section 4 of Act 13 of
2004, the
Social Assistance
Act are
paid out by the Treasury after having been approved by the
Minister of Finance. Child care grants and the grant payable to
foster
parents for the benefit of a foster child emanates from the
Treasury. Mr Salie contends that similarly, the Road Accident Fund
compensates victims from funds allocated by the Treasury.
[15]
Mr Salie further argued that the Court in the
Timis
(Supra)
agreed
with the conclusion of
Indrani
and Another African Guarantee and Indemnity Company Ltd
1968 (4) SA
606D
,
in
which case the mother brought an action for loss of support suffered
by her and her minor children as a result-" of the
death of her
husband from injuries sustained in a motor vehicle collision. After
the death of her husband, she received certain
allowances in respect
of maintenance for her children from the State. It was held in that
case that the contributions by the State
prior to the award of the
damages by the Court were deductible because it was benefits received
by the children by reason of the
death of their father, in the
Timis
case,
the learned Judge also referred with approval to the judgment of
Santam
Versekeringsmaatskappy v Byleveldt
1973 (2) SA 146
A
at
173 -174.
[16]
Mr Salie further pointed out that
Mhlantla
JA
in
the
Timis
judgment
said at paragraph [13] that:
"In
this matter the State assumed the responsibility for the support of
the children as
a
result of the
breadwinner's death. The monies 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 tax
payer and this incapable of justification. In my view, it was not the
intention of, the legislature to
compensate the dependents twice."
[17]
It was further argued that the children in this matter were placed in
foster care by virtue of a Court Order granted on 13
August 2002 and
the subsequent receipt of the foster grant is directly awarded to
the.motor vehicle collision in which their father
died. Mr Salie
urged this Court not to follow the dictum of
Malan
J
in
Makhuvela v Road
Accident Fund (supra)
and
held the respectful view that it was wrongly decided. This he says
was because of two reasons, firstly, where it was held that
the
foster care grant was given to the foster parent and not to the child
itself in order to comply with his/her obligations and
that the
parent has no discretion to spend the grant in "part” only
on the foster child.
This according to
Counsel is not correct because a foster parent does not have
unfettered powers to utilize a child foster grant
in any manner other
than for the benefit of the child.
[18] Secondly, he
argued that even though the foster child never has or will have a
claim to the foster grant per sé, it
shall at all times be the
property of the Department of Social Services discretion pursuant to
Section 19
1
to substitute any beneficiary in the event of an abuse of the grant
by the said beneficiary.
Mr Salie therefore
submitted, not to deduct the foster grant, would amount to double
compensation and it would be detrimental to
the tax payer.
[19] He further
argued that in terms of
ss 1
(1) and (2) of the
Assessment of Damages
Act 9 of 1969
where it is stated that:
"(1)
When in any action the cause of which arose alter the commencement of
this Act, damages are assessed for loss of support
as a result of
a
person's death,
no
insurance money, pension or benefit
which
has been or will or may be paid as a result of the death, shall be
taken into account.
(2)
For the purpose ofss (1)~
'benefit' means
any payment by a friendly society or trade union for the relief or
maintenance of a member’s dependence;
'insurance money'
includes the refund of premiums and any payment of interest of such
premiums;
'pension'
includes a refund of contributions and any payment of interest on
such contributions, and also any payment of a gratuity
or lump sum by
a pension or provident fund or by an employer in the respect of
a
person’s
employment."
A foster care grant
is not a benefit as defined in this provision. It is neither payable
by a friendly society nor by a trade union,
but through State funding
and therefore falls to be deducted.
[20]
Analysis
It is common cause
that a claim for compensation for loss of support paid out by the
Road Accident Fund and all payments made in
terms of the
Social
Assistance Act are
funded by the public through two State organs.
[21]
In the case of monies paid out in terms of the Road Accident Fund, a
claim for loss of support of minor children will always
be as a
result of the breadwinner’s death as a result of a motor
collision. In
Makhuvela
v Road Accident Fund (Supra)
at
page 30 paragraph [5]
Malan
J
held:
"[5] The
Social Assistance Act 13 of 2004
provides for the rendering of social
assistance to persons and seeks to give effect to the constitutional
right of access to social
security by providing for 'effective,
transparent, accountable and coherent government in respect of social
securityThe purpose
of the Act is, among others, to provide for the
administration of social assistance and the payment of social grants.
The preamble
states that it is enacted, since the Constitution
provides that -
'everyone has the
right to have access to social security, including, if they are
unable to support themselves and their dependants,
appropriate social
assistance, and obliges the state to take reasonable legislative and
other measures, within its available resources,
to achieve the
progressive realisation of these rights'.
The purpose of
the Act is thus not only to secure the support of foster children and
other groups of people, but also to ensure
equality and the
realisation ofthp rights of the child under the Constitution.”
[22]
I am further in respectful agreement with
Malan
J
where
the learned Judge holds the view that the foster grant is given to
the foster parent and not to the child itself and that
it is given to
the foster parent to enable him/her to comply with his/her
obligations to the child. I agree with his interpretation
of the Act
that the point of departure in the Act is the “family which is
assumed to shoulder the primary responsibility
for the care of the
children”,
[23] I further
respectfully agree with the teamed Judge’s finding that a
foster grant may obviously be used to support the
child, but its
primary purpose is the realisation of the child through the
intervention of the foster parent. No such grant may
be paid without
the child having a foster parent.
[24]
Support for this contention is also to be found in the Regulations
published in GN 31356 dated 22 August 2008
2
under Regulation 28(3). The portion thereof which is relevant to this
case is that:
'a
foster child grant
lapses, on the last day in which the foster child dies,
and
may also lapse
on
the last day of the month in which the last living foster parent
dies
. ’
(own
emphasis)
[25]
Regulation 28(2) which deals with the child support grant with which
the Court in the
Timis
judgment
dealt with states that
a
'child support grant lapses on the last day of the month in which the
child in respect of whom the child support grant is paid,
dies or
when the child who receives the grant attains the age of 15 years
with effect from 1 January 2009 or such child is no longer
in the
custody of the primary care-giver'
[26] Clearly in
terms of Regulation 28(3)(b), no foster cáre grant may be paid
out after the last living foster parent dies.
No such payment can
therefore be made to the foster child, unless he or she is placed in
the care of other foster parents after
a Children’s Court
enquiry is once again held in terms of the Child Care Act.
[27] In such a case
if a child is not again immediately placed in the care of a foster
parent and only after a proper Children’s
Court enquiry in
terms of Section 14(4) of the Child Care Act that must determine
whether such a child is a child in need of care
such a child will
have no means of support, without formally being placed in the care
of a foster parent, it therefore does not
automatically follow that a
child who has lost his or her parents and cannot be supported will
receive assistance from the State.
[28] In this
particular matter, according to the evidence the children were in
need of care before the death of the deceased. According
to the
evidence of their grandmother, Mrs D[...] L[...], a pensioner, aged
74, the children’s father passed away before their
mother. The
mother worked as a construction site worker and earned R80.00 per
day. The youngest son E[...] went to stay with her
and her husband,
also a pensioner on 19 September 2001 when the deceased was sent to
prison. Thereafter the two other children
also went to stay with her.
After the mother’s release from prison, two of the children
continued staying with Mrs D[...]
L[...] and one of them again went
to stay with the mother. The other two remained in the care of Mrs
D[...] L[...] and her husband
until their mother passed away.
Thereafter all three children had to stay with her. While the mother
was employed, she supported
the children while they were staying with
Mrs D[...] L[...], but this was not enough to sustain the children's
needs.
[29] According to
her, after the death of her daughter, she applied for the foster
grant. The foster grant according to her is not
really enough to care
for the children. On the evidence presented it seems that there was
sufficient grounds for the children,
to be placed in the foster care
of Mr and Mrs D[...] L[...] even before the death of her daughter and
that they were in need of
care.
[30]
The death of their mother only formalised their placement as foster
children under the care of their grandmother and grandfather.
This
foster care grant as pointed out by
Malan
J,
in
the present case was given to the grand parents as foster parents
after the death of the deceased, to enable them to comply with
their
obligations towards the children. They had these obligations prior to
the death of the deceased.
[31] It helped them
to shoulder the primary responsibility as family for the care of the
grandchildren.
The death of the
children’s mother did not cause the grand parents to take care
of the children, but the need for the children
to be cared for, even
before the mother’s death. The later formalization and
appointment of them as foster parents and the
subsequent grant was to
assist them to enable them to comply with the obligations they
already had prior to the death of their
daughter to care for the
children.
[32]
Unlike in the case of a child support grant a foster care grant has
its own dimensions as pointed out by
Mhlantla
JA
in
the
Timis
judgment
and the two types of grants as pointed out earlier cannot be compared
with each other. For the reasons cited above, and
in the particular
circumstances and facts of this case I conclude that the child foster
grant is indeed a
res
inter alios acta,
[33]
Order
It
is ordered;
1.
That the child foster grants are
res
inter alios acta.
2. That the
Defendant is ordered to pay the proven damages to the Plaintiff.
3. The Defendant to
pay the costs of this application.
HENNEY, J
Judge of the High
Court
1
''19. (1) Whom the Agency has
reasonable grounds to suspect that a beneficiary, parent,
procurator, or a primary care giver is
abusing the social grant, the
Agency may appoint a person to investigate such suspected abuse.
If
such person finds on objective grounds that such abuse has taken
place, the Agency must appoint a person to receive the social
grant
on behalf of the beneficiary antj to use it for the benefit of that
beneficiary subject to any prescribed conditions.
F3
The
Agency may-
(a)
suspend payment of a child support grant, foster child grant ora
care dependency grant to
a
parent, primary care giver, foster parent or procurator,
where the pamnt, primary care giver, foster parent or procuratar-(i)
is convicted of abuse or neglect of the child in respect of whom he
orshe receives
a
grant”
2
Regulations
relating to the application for and payment of social assistance and
the requirements or conditions in respect of
eligibility for social
assistance.