A mother who depended on her 21-year-old son to support her and his two younger siblings has won her appeal for loss of support after he was killed in a car crash.
The full bench of the Mbombela high court, on appeal, found that the 50-year-old mother had proven that she and her 10-year-old twins had been dependent on her deceased son — even though he did not have a legal duty to support them — and ordered the Road Accident Fund (RAF) to pay her R385,429.
The court heard that the mother, identified only as Mrs M, was married to Mr M. They lived in Mbombela and had three children. The oldest boy was 21 when he was killed in a car accident on December 6 2020. He had been a passenger in the car and the accident was found to be the fault of the insured driver.
The court heard that the young man was the biological brother of the twins and the son of Mrs M. He was the sole breadwinner at the time of his death.
After his death Mrs M lodged a claim for R690,000 against the RAF, stating that she and her minor children had been deprived of the maintenance and support her son had been providing. The amount was calculated as R250,000 for herself and R220,000 for each of the twins.
Mrs M told the court that her son had been employed at tissue manufacturer Big Joe and earned R600 a week. He would save his earnings and at the end of the month he would give her R1,500. She used the money to buy electricity, food, give pocket money to the children and buy them clothing at least twice a year.
She told the court that she did not have bank statements to prove her son's income as her lawyer had not asked her to provide them.
She told the court that her husband Mr M worked as a truck driver in Johannesburg and she did not know where he was. They had split up years ago, and he paid her R1,000 a month maintenance before walking out on the family in 2018.
She said she had not claimed maintenance from him because her son had urged her not to pursue the matter. He promised he would step in as their provider.
She had been unable to work because she did not have anyone to look after the children, and she suffered from high blood pressure.
Three witnesses confirmed that the whereabouts of Mr M were unknown and that the son had been supporting the family.
The RAF argued that Mrs M had provided insufficient proof of her late son's earnings, had not presented his employment contract and had also failed to present bank statements as evidence.
An affidavit deposed by the late son's employer claimed that he had had been temporarily employed at the time of the accident, that he had been earning R600 a week and no salary slips were ever issued to him. The affidavit was rejected by the court because the employer had not been called to testify as to the authenticity and originality of the document and it would therefore only qualify as hearsay evidence. In a judgment last year, the Mpumalanga High Court found that Mrs M had therefore not proven her loss.
In my view, the conduct of the deceased at his young age in taking care of his mother and minor children, despite him earning an amount which is below the minimum wage, is an expression of ubuntu which cannot be faulted by this court.”
— Acting judge Janet Lungile Bhengu
Mrs M took the matter to the full bench of the high court on appeal.
She said the court last year had wrongly absolved the RAF of liability in the face of undisputed evidence that her deceased son had been paying her R1,500 a month for maintenance.
The full bench heard that the RAF was obliged to compensate any person — third party — for any loss or damage they suffered caused by the injury or death of any other person if the injury or death was due to negligence or wrongful actions of the driver or owner of the vehicle or their employee in the performance of their duties.
In her judgment, with which two other judges concurred, acting judge Janet Lungile Bhengu said: “It is trite that a dependent's claim for loss of support seeks to place the deceased's dependents in the same position they would have been had the deceased not died, and that only a dependent with a legally enforceable duty of support from the deceased can sue the defendant for loss of support.”
The RAF had argued that Mrs M was not indigent as her husband was still alive and earning an income as a trucker. Her claim for support should therefore lie with him and not her son.
Bhengu said it had been previously held that cases must be assessed on their own merits, with the deciding principle being “whether the parent can prove that he or she was dependent on the child’s contribution for the necessities of life”.
“In this case, we have a husband who deserted his family in 2018 or 2019 without a trace when the minor twins were about three-years old. The evidence from the affidavit of the deceased’s sister corroborates Mrs M’s version that Mr M’s whereabouts is unknown. It further confirms that the deceased supported the appellant,” Bhengu said.
“The authorities in actions for loss of support demonstrate that our courts have expanded claims for loss of support to individuals who do not fall under categories recognised by the common law.”
She added: “This is essentially a judicial determination that a court must make after considering the interplay of several factors: ‘the hand of history, our ideas of morals and justice, the convenience of administering the rule and our social ideas of where the loss should fall’.”
Bhengu said considerations of “equity and decency” have always been important, with flexibility required to adapt to social changes and modern conditions. In this case, the son had voluntarily assumed the duty of support towards his mother and siblings when he instructed Mrs M not to pursue maintenance claims against Mr M.
“In the African customary practice, the elder son in the family is expected to step into the shoes of his father in case of death, alternatively, as in this case, where Mr M decided to abandon his family. The deceased’s decision to take over his father’s duties alleviated the stress and hardship that (Mrs M) would have faced in trying to locate her estranged husband for maintenance. In my view, the conduct of the deceased at his young age in taking care of his mother and minor children, despite him earning an amount which is below the minimum wage, is an expression of ubuntu which cannot be faulted by this court.”
Bhengu was satisfied that Mrs M had proven that her son owed her and his siblings a duty of support, which she had lost because of his death and that she was indigent and in need of that support. She believed the court, in its earlier judgment, had erred in not accepting that the son had been employed in the informal sector and was paid in cash and no formal employment contract or salary advices had been issued.
She said the son's earnings had been “significantly below minimum wages” at R31,200 a year. This, with only inflationary increases until age 65, was the income used to calculate the support that would be paid to Mrs M until she turned 60 and qualified for an old-age social grant, and for his siblings until they turned 21.
Bhengu granted Mrs M's appeal and ordered the RAF to pay her R139,118 for each of the twins and a further R107,193 for herself along with her legal costs.
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