Dhlamini obo Motloung v Road Accident Fund (16911/2018) [2021] ZAGPPHC 607 (28 September 2021)

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: 16911/2018

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

28 September 2021

In the matter between:

DHLAMINI, LERATO BRIDGET

obo THABO ORATILWE MOTLOUNG PLAINTIFF

and

ROAD ACCIDENT FUND DEFENDANT

JUDGMENT

KHWINANA AJ

Introduction

[1] The plaintiff has instituted an action against the defendant pursuant to a motor collision.

[2] The plaintiff claims in her personal capacity and as the natural guardian of Thabo Oratilwe Motloung born on 31 January 2011 loss of earnings.

[3] The Plaintiff’s claim in her personal capacity was for funeral expenses and she abandons this claim, accordingly the matter proceeds only in respect of the minor’s claim being Thabo for loss of support.

[4] The Defendant’s defence in both actions has been struck. The plaintiff is proceeding in terms of default judgment against the defendant.

[5] The plaintiff has filed affidavits of the medical experts that he intends to use during the proceedings.

[6] The issues in dispute are both merits and quantum.

The Merits

[7] On the 04th July 2017 at approximately 06:00 THABO MOTLOUNG, [...] (the “deceased”) was the passenger in the motor vehicle bearing the registration letters and numbers […] (the insured vehicle). The insured vehicle was traveilling on the R541 Badplaas Road in Machadodorp when its driver lost control thereof and an accident occurred. Thabo Motlaung died at the scene on the day in

question.

[8] There are no living and traceable witnesses to the collision, but the deceased was a passenger in the collision and could not have contributed thereto. Furthermore, negligence on the part of the driver may be inferred.

[9] Counsel submits that the same principles are applicable to the current, and I respectfully submit a driver do not simply lose control of their vehicles and in the absence of an explanation as to the cause of the loss of control, negligence may be inferred. In the circumstances liability should be conceded.

[10] All the dependants have to establish is the proverbial 1 % in order to succeed with their full damages.

Legal principles

Paternity and duty of support

[11] The minor herein is the biological son of the deceased and therefore he owed him a duty of support. The claim has been substantiated by an unabridged birth certificate which depicts that the deceased was the father to the minor child.

[12] In Lambrakis v Santam[1] Lewis AJA said the following:

“[12] The measures of damages for loss of support is, usually, the difference between the position of the dependant as a result of the loss of support and the position he or she could reasonably have expected to be in had the deceased not died.[2] The particular equities of the case must also be taken into account and an adjustment made if appropriate: Botes above at 614 F-H where Holmes JA said that the trial Judge 'has a discretion to award what under the circumstances he thinks right'. Thus any addition to a dependant's income, arising from the death of the deceased, must be deducted from the total amount of the loss. In assessing the value of the benefit-and indeed the loss-the court ‘may be guided but is certainly not tied down by inexorable actuarial calculations' (Holmes JA in Botes above at 614F-G).

…

[13] Where property is inherited by a dependant, in determining the extent of his or her loss the court should take into account not the value of the property but that of the accelerated accrual (cf Groenewald v Snyders.[3] This entails assessing the probabilities of the dependant having inherited the property should the deceased not have been killed

through the wrongdoing of the defendant, but dying from a different cause at a later stage.”

[13] “The basis of liability to compensate for loss of support is therefore to compensate a widow or a child for the value of the support lost as a result of the death of the spouse or parent. The fact that income accrues from other sources which compensate for the loss is not a ground for reducing the amount payable by the wrongdoers unless such income is a direct consequence of the death of the deceased.” (See Santam Insurance v Meredith[4] at 267H-J). At least since the decision in Jameson's Minors, it has been settled law that income generated by an asset in a deceased estate constitutes an accelerated benefit to dependent

heirs. In Indrani and Another v African Guarantee and Indemnity Co Ltd[5] the following was stated at 607F-H:

“The general principle applied by the South African Courts is that a dependant plaintiff, when entitled to damages for loss of support,

should be awarded damages only for the ‘material loss caused … by his death.’[6] It seems implicit in what was said by Innes CJ in Hulley v Cox, that the material loss can only be ascertained ‘by balancing, on the one hand, the loss to him of the future pecuniary benefit, and, on the other, any pecuniary advantage which from whatever source comes to him by reason of the death.’”[7]

Deceased’s earnings

[14] The deceased was a general worker and cashier. His income has been confirmed in the payslip.

[15] In his industrial psychologist’s report Dr L Fourie spoke to the deceased employer who confirmed his salary and also stated that there was no room for salary advancement beyond inflation. Dr Fourie notes in his report that the deceased’s earning accord with those of a semi-skilled worker, and this is used to estimate his earnings over his career. Based on this, the deceased could therefore have earned an annual income of R95 000 (no overtime) – R120 000 (overtime included) in 2018. With an annual increase of 6 %, his remuneration could have been R113 200 per annum (no overtime) – R143 000 per annum (overtime included) at present (2021). The increase in income is inflation related. The deceased could have retired on age 65 years.

Period of dependency

[16] Dr Fourie’s report read with that of Karen Trollip, Educational Psychologist, provides the following period of dependency. Thabo (Junior) can therefore probably complete Grade 12 in 2030 (Covid 19 pandemic year included). Considering the opinion of Ms Trollip, he will probably enrol towards some post school education/training for another 3 years (2033). However, with the high unemployment rate in South Africa, he would probably only find formal/gainful employment after about 12 —18 months (2034 to 2035) after completion of his expected education/ training.

[17] The actuary I. Kramer considered the personal data of the deceased and came up with the following calculation:

Dependants of THABO MOTLOUNG

Values below are in Rands

Child 1

Thabo

Gross accrued value of support 146 959

Less contingency 7 348

Net accrued value of support 139 611

Gross prospective value of support 446 363

Less contingency 55 795

Net prospective value of support 390 568

Total value of support 530 179

Contingency %

accrued 5,0

%

prospective 12,5

%

Analsysis

[18] In the actuarial calculation, it was assumed that he would have been in need of maintenance up to the time he became employed. This is the correct assumption. A parent’s duty to support a child does not cease when the child reaches a particular age but it usually does so when the child become self-sufficient. Emancipation is a determining factor.[8] The deceased in the present case, would have been obliged to continue supporting the minor child up to self-sufficiency. Of course, the factor relating to the inheritance is not applicable to him. The amount claimed differs from the calculation by the actuary. I am reminded of the fact that as the court I have a discretion to take the calculations by an expert or consider what is fair and reasonable.

Conclusion

[19] I have considered all the facts alluded to in relation to the merits and I am satisfied that the defendant is liable to compensate the plaintiff 100 %. I have also considered the actuarial report and I have taken cognisance of the income of the deceased and circumstances taken into account by the actuary and I am satisfied that he must be compensated accordingly.

[20] The amount that is fair and reasonable is R519 177.00. S 28(2) of the Constitution provides that:

“A child's best interests are of paramount importance in every matter concerning the child.”

S 9 of the Children’s Act reads:

“Best interests of child paramount

In all matters concerning the care, protection and well-being of a child the standard that the child's best interest is of paramount

importance, must be applied.”[9]

[21] The fund of the minor child must be paid into the Guardian Fund less the plaintiff’s attorneys’ fees.

[22] In the result I make the following order:

22.1 The Defendant is liable for 100 % of the Plaintiff’s proven or agreed damages.

22.2 The Defendant is ordered to pay the Plaintiff an amount of R519 177.00 in respect of the loss of support of the minor child, Thabo Oratilwe Motloung, together with interest a tempore morae calculated in accordance with the Prescribed Rate of Interest Act 55 of 1975, read with section 17(3)(a) of the Road Accident Fund Act 56 of 1996.

22.3 Payment will be made directly to the trust account of the Plaintiff’s attorneys within one hundred and eighty (180) days:

Account Holder De Broglio Attorneys

Account Number [...]

Bank & Branch Nedbank Northern Gauteng

Branch Code 198 765

Ref D917

4

22.4 The Defendant is to pay the Plaintiff’s agreed or taxed High Court costs as between party and party.

22.5 The Plaintiff shall, in the event that the costs are not agreed serve the Notice of Taxation on the Defendants Attorney of record.

22.6 The Plaintiff shall allow the Defendant fourteen (14) days to make payment of the taxed costs.

22.7 There is no contingency fee agreement in existence between the Plaintiff and her attorneys.

22.8. The funds paid out in settlement of the Road Accident Fund claim of the minor, Mr Thabo Oratilwe Motloung, are to be paid into and administered by the Guardian’s Fund less Attorney’s fees.

E.N.B. KHWINANA

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

DATE OF HEARING: 9

June 2021

ON BEHALF OF THE PLAINTIFF: ADV. J. ERASMUS

INSTRUCTED BY: De

Broglio Attorneys Inc.

ON BEHALF OF THE DEFENDANT: NO APPEARANCE

DATE OF JUDGMENT: 28 September 2021

[1] 2002 (3) SA 710 (SCA)

[2] Joubert (ed) The Law of South Africa (1st re-issue) Vol 7 para 89, citing Jameson’s Minors v Central South African Railways 1908 TS 575 at 603; Hully v Cox 1923 AD 234 and Legal Insurance Co Ltd v Botes 1963 (1) SA 608 (A)

[3] 1966 (3) SA 238 (A) at 248C-F

[4] 1990 (4) SA 265 (TkA)

[5] 1968 (4) SA 606 (D)

[6] See Hulley v Cox, 1923 AD 234 at p. 243

[7] Mfomadi and Another v Road Accident Fundd (34221/06) [2012] ZAGPPHC 152 (3 August 2012)

[8] See Smith v Smith

[9] M v Road Accident Fund (24261/2014) [2016] ZAGPJHC 268 (10 October 2016)