Mohajane v Road Accident Fund (2718/2015) [2017] ZAFSHC 172 (5 October 2017)

Mohajane v Road Accident Fund (2718/2015) [2017] ZAFSHC 172 (5 October 2017)

The court found that the plaintiff and the deceased lived together as husband and wife, with the intention to marry once financially able. Their relationship was recognized and blessed by their families, and they had a child together whom they raised as a family unit. The deceased contributed financially to the maintenance of the plaintiff and the child, and the relationship exhibited the characteristics of a de facto customary marriage, with only the formal lobola agreement outstanding. The court held that the legal convictions of society and constitutional values of equality and human dignity require the law to protect the plaintiff's right of support. Accordingly, the remedy for loss...

Citation
[2017] ZAFSHC 172
Parties
Plaintiff: Elsie Malethole Mohajane; Defendant: Road Accident Fund
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
5 October 2017
Case Number
2718/2015
Procedural Posture
Civil Trial / Final Judgment
Outcome
Plaintiff's claim for loss of support is upheld; damages awarded as claimed.
Judges
LJ Lekale
Legal Topics
Loss of Support, Cohabitation Rights, Customary Marriage, Duty of Support
Delict Family and Children Loss of Support Cohabitation Rights Customary Marriage Duty of Support

Case Brief

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Parties

Elsie Malethole Mohajane

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Whether the deceased owed the plaintiff a legally enforceable duty of support at the time of his death.
  2. 2 Whether the plaintiff, as a surviving partner in a cohabitative relationship, is entitled to claim loss of support under South African law.

Ratio Decidendi

The court found that the plaintiff and the deceased lived together as husband and wife, with the intention to marry once financially able. Their relationship was recognized and blessed by their families, and they had a child together whom they raised as a family unit. The deceased contributed financially to the maintenance of the plaintiff and the child, and the relationship exhibited the characteristics of a de facto customary marriage, with only the formal lobola agreement outstanding. The court held that the legal convictions of society and constitutional values of equality and human dignity require the law to protect the plaintiff's right of support. Accordingly, the remedy for loss...

Court Disposition

Plaintiff's claim for loss of support is upheld; damages awarded as claimed.

Orders

  • Defendant shall pay R2,264,329 to the plaintiff in respect of past and future loss of support.
  • Defendant shall pay interest on the above sum at the prevailing legal rate of interest calculated from 14 days after date hereof to date of final payment.