E v Road Accident Fund (2013/03860) [2015] ZAGPJHC 148 (15 June 2015)

E v Road Accident Fund (2013/03860) [2015] ZAGPJHC 148 (15 June 2015)

The court found that, despite the absence of a formal marriage or express agreement, the conduct and circumstances surrounding the relationship between the plaintiff and the deceased demonstrated a tacit agreement to support T. as his own child. The deceased's commitment to the family, including T., both during and after the marriage, established a legal duty of support. The development of the common law, as articulated in Piaxão, extends the dependants' action to permanent heterosexual relationships where such mutual commitment exists. The plaintiff discharged the onus of proof on a balance of probabilities, and the defendant is liable for loss of support for both minor children.

Citation
[2015] ZAGPJHC 148
Parties
Plaintiff: Z. N. E.; Defendant: Road Accident Fund
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
15 June 2015
Case Number
2013/03860
Procedural Posture
Civil Action / Trial
Outcome
Plaintiff's claim for loss of support for both minor children is upheld.
Judges
B. A. Mashile
Legal Topics
Loss of Support, Dependants Action, Duty of Support, Tacit Agreement, Permanent Heterosexual Relationships
Delict Civil Procedure Loss of Support Dependants Action Duty of Support Tacit Agreement Permanent Heterosexual Relationships

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Parties

Z. N. E.

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Action / Trial

Legal Issues

  1. 1 Whether the deceased owed a legal duty of support to T., the plaintiff's illegitimate child, at the time of his death.
  2. 2 Whether the principle established in Piaxão and Another v Road Accident Fund applies to the facts of this case.
  3. 3 Whether a tacit agreement to support T. can be inferred from the conduct and circumstances.

Ratio Decidendi

The court found that, despite the absence of a formal marriage or express agreement, the conduct and circumstances surrounding the relationship between the plaintiff and the deceased demonstrated a tacit agreement to support T. as his own child. The deceased's commitment to the family, including T., both during and after the marriage, established a legal duty of support. The development of the common law, as articulated in Piaxão, extends the dependants' action to permanent heterosexual relationships where such mutual commitment exists. The plaintiff discharged the onus of proof on a balance of probabilities, and the defendant is liable for loss of support for both minor children.

Court Disposition

Plaintiff's claim for loss of support for both minor children is upheld.

Orders

  • The Defendant is to pay to the Plaintiff, in her representative capacity as mother and natural guardian of T. and O., an amount of R1 258 293.00.
  • Of this amount, R799 894.00 is for O. and R458 399.00 is for T.