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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from
this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 2020-35091
Date of hearing: 20 August 2026
Date delivered: 27 August 2026
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
DATE 27/8/26
SIGNATURE
In the application of:
E[...] A[...] O[...]
personally and obo K[...] O[...]
and M[...] T[...] V[...] R[...] Plaintiff
and
THE ROAD ACCIDENT FUND Defendant
__________________________________________________________
JUDGMENT
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SWANEPOEL J:
[1] The plaintiff is the biological parent of K[...] O[...] (“K[...]”), a 15
year-old girl who was born on 4 December 2010 , and M[...] v[...] R[...]
(“M[...]”), a 10 year -old boy who was born on 28 September 2015 . She
claims against the defendant for loss of support for herself and her two
children, pursuant to the death of her fiancé, Mr. T[...] v[...] R[...] (“the
deceased”), in a motor vehicle accident on 27 August 2016.
[2] The only issue in dispute is whether the deceased had a duty of
support in respect of the plaintiff and of K[...]. Should I find in favour of
the plaintiff, the rest of the previously disputed issues are common
cause. The quantum of the claim has been agreed between the parties.
The claim in respect of M[...] is not disputed in any respect.
[3] The facts are common cause. The plaintiff met the deceased
during or about 2012. They became involved in a romantic relationship,
and during 2013 the plaintiff and K[...] moved to Mokopane to live with
the deceased. K[...] had been born from a previous relationship between
the plaintiff and an unidentified person. K[...]’s biological father never
played any role in her life. He had no contact with her, had never paid
maintenance, and seems to have disappeared altogether from the
plaintiff and K[...]’s lives.
[4] After the plaintiff moved in with the deceased, he was the sole
breadwinner. He enjoyed lucrative employment with the Anglo Platinum
Mine, and he was able to financially provide for the entire family’s
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needs. The plaintiff never worked during the period that she lived with
the deceased. The deceased paid for K[...]’s pre-schooling, he provided
for all of the family’s material needs, and both the plaintiff and K[...] were
dependants on the deceased’s medical aid scheme. The plaintiff had a
bank card for the deceased’s bank account, and she was
[5] The plaintiff testified that she had had a discussion with the
deceased, and that he had undertaken to care for her and K[...] until
death.
[6] During November 2015 the plaintiff and the deceased were
engaged to be married. The deceased purchased an engagement ring
for the plaintiff which contained 27 diamonds. The number ‘7’ evidently
bore some significance for the plaintiff and the deceased, because they
also agreed to be married in 2017. They had agreed to be married on a
farm where the deceased’s mother resided.
[7] For all intents and purposes, the deceased and the plaintiff lived
as husband and wife, initially with their child K[...], and later also with
M[...] after his birth in 2015. All of their friends and family were aware of
their intention to marry, and all regarded them as a nuclear family. The
deceased regarded K[...] to be his own daughter. She called him
“Pappa” in Afrikaans.
[8] None of the aforesaid facts were challenged. The defendant
cross-examined the plaintiff on the lack of a written agreement to
support the plaintiff and her daughter, an obvious absurdity because I
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have never heard of anyone deciding that it is necessary to record such
a relationship in writing. The defendant also made much of the fact that
M[...] was the deceased’s sole beneficiary on his Provident Fund.
Nothing turns on this fact, and there may have been many reasons why
M[...] was the sole beneficiary.
[9] Having heard the evidence I was curious why the defendant had
chosen to oppose the claim. The evidence seemed to establish
conclusively that the deceased had a duty of support towards the
plaintiff and both her children. The defendant had not called witnesses,
and had not filed heads of argument. I thought it proper to provide the
defendant with a further opportunity to file heads of argument so that I
could properly understand its opposition to the claim.
[10] The defendant cited Paixāo v Road Accident Fund 1 in arguing
that there had to have been an express or tacit agreement that bound
the deceased to support the plaintiff and K[...]. The defendant referred
extensively to affidavits that the plaintiff had submitted in support of her
claim, arguing that the affidavits do not make out a case for a duty to
support. The problem is that none of these affidavits were placed in
evidence, and I cannot take cognizance of any of these arguments.
[11] Furthermore, the defendant argued that the fact that M[...] was
the sole beneficiary of the Provident Fund, justified a conclusion that the
deceased did not intend to support the plaintiff and her daughter
permanently. I reject that argument. The fact is that the plaintiff
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specifically testified that during a discussion with the deceased, he
undertook to care for the plaintiff and K[...] permanently. That evidence
was never challenged, and having been left unchallenged, the
defendant cannot now argue to the contrary.
[12] The defendant has not taken issue with the authorities relied
upon by the plaintiff. In Paixāo (supra) the Supreme Court of Appeal
said:2
“[14] Although the precise scope of the dependants’ action is unclear
from the writings of the old Roman -Dutch jurists, there is a strong
suggestion that it was not confined only to these classes of persons to
whom the breadwinner had a legal obligation to support, but it was also
available to those whom the deceased ‘was accustomed to support
from a sense of duty’. In Amod v Multilateral Motor Vehicle Accidents
Fund Mahomed CJ put it thus:
‘[7] The precise scope of the dependant’s action is unclear
from the writings of the old Roman -Dutch jurists. De Groot
extends it to those whom the deceased was accustomed to
aliment ex officio , for example his parents, his widow, his
children…. This and other passages in De Groot’s writing s
perhaps support his suggestion that the action was competent
at the instance of any dependant within his broad family whom
he in fact supported whether he was obliged to do so or not but
this is unclear. The same uncertainty but tendency to extend the
dependant’s action to any dependant enjoying a close familial
relationship with the breadwinner is also manifest in Voet 9.2.11
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who seeks to accord the dependant’s action to the
breadwinner’s wife, children and the like ( uxori, liberis,
similibusque).’
[15] However, as this court observed in Amod, the old authorities
appeared to be anxious to recognize the existence of a dependants’
action for the ‘family’ members of the deceased. But it cannot be stated
conclusively that they intended only relationships by blood or marriage
to fall within its ambit. And, given the sui generis character of the
remedy, there seems no proper reason to restrict it only to family or
blood relationships when social changes no longer require this.”
[13] In Metiso v Padongelukke Fonds 3 the court held that a binding
offer to support the children was sufficient to ground a duty of support
because to do so was consistent with the morality of society.
[14] In JT v Road Accident Fund 4 the Court said 5 that “ The right to
support that may arise does not arise because it is a spousal benefit but
rather because the obligation was assumed in a relationship akin to a
family relationship.” Sutherland J went on to say:6
“[26] It seems to me that these cases demonstrate that the common
law has been developed to recognize 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
imbedded notion of ‘family’, constituted as being a network of
relationships of reciprocal nurture and support, informs the common
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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 a relationship akin to that of a family.”
[15] Applying these principles to this case, there is no doubt that the
deceased maintained the family unit, and accepted the obligation to do
so indefinitely. I find, therefore, that the deceased had assumed a duty
to support the plaintiff and her daughter K[...].
[16] The plaintiff and the defendant presented me with a draft order
that is to be made an order of court, should I find in favour of the plaintiff
on the issue of the deceased’s duty to support the plaintiff and her
daughter. The draft order provides , inter alia, for the creation of two
separate trusts for the protection of the funds to be paid to M[...] and
K[...].
[17] Consequently, I make the following order:
The draft order marked “X” is made an order of court.
____________________________
SWANEPOEL J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
Counsel for the plaintiff: Adv. P Vermeulen SC
Attorney for the plaintiff: Savage Jooste & Adams Inc
Counsel for the defendant: Ms B Selesho
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Attorney for the defendant: The State Attorney
Heard on: 20 August 2026
Judgment on: 27 August 2026
1 [2012] ZASCA 130
2 At para [14]
3 2001 (3) SA 1142 (T)
4 2015 (1) SA 609 (GJ)
5 At para [24]
6 At para [26]