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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

[EASTERN CAPE LOCAL DIVISION: BHISHO]

                                                                                                            CASE NO. 09/2019

In the matter between:

G[…] V[…] H[…] obo T.N. V[…] H[…]                                                    Plaintiff

and

ROAD ACCIDENT FUND                                                                          Defendant

JUDGMENT

JOLWANA J:

[1] The plaintiff instituted these proceedings in her capacity as the mother and natural guardian of her minor child T[…] N[…] V[…] H[…] (the minor child) for loss of support allegedly suffered by the said minor child.  This claim for loss of support is consequent upon the death of Mr A[…] T[…] A[…] (the deceased) in an accident which occurred in the early hours of the morning on the 30 June 2018 on the N10 National Road between Cookhouse and Cradock.  The plaintiff alleged in her particulars of claim that that accident in which the deceased died was as a result of the sole negligent and wrongful driving of the insured vehicle.

[2] The defendant is a juristic person established in terms of section 2 of the Road Accident Fund Act 56 of 1996 (the Act) ― whose sole object is the compensation of road accident victims in respect of loss or damage wrongfully caused by the driving of motor vehicles. 

[3] The plaintiff who was represented by counsel called only one witness to testify whom it later transpired in the course of his evidence that he is fact the father of the plaintiff.  When he concluded his evidence the plaintiff’s case was closed with no other witnesses being called.

[4] At the close of the plaintiff’s case, the defendant applied for absolution from the instance.  The defendant’s application is founded upon two pillars.  The first one is that the plaintiff was required, before she closed her case, to establish at least two things, namely, that the driving of the insured vehicle was prima facie negligent or wrongful.  The second pillar of this application is that, in any event, this is a claim for loss of support.  For this type of claim, so goes the defendant’s submission, the plaintiff ought to have led evidence or evidence ought to have been led on her behalf to establish a nexus between the minor child on whose behalf the claim is being lodged and the deceased.  The plaintiff opposes this application and I am required to determine the issues aforementioned.

[5] The plaintiff’s pleaded case is, for the purposes of this application, that she has complied with sections 24(1), 24(6) and 19(f) of the Act.  On or about the 30 June 2018; on the N10 National Road between Cookhouse and Cradock the deceased was driving a motor vehicle with registration letters and numbers FSY 288 EC.

[6] At about 04h00 in the morning a vehicle with registration letters and numbers HNV 156 EC (the insured vehicle) then driven by Thabiso V. Mbotshelwa (the insured driver) collided with the deceased’s vehicle fatally injuring the deceased.  For various reasons pleaded, the said collision is alleged to have been caused by the sole negligence and wrongfulness of the driving of the insured vehicle, which resulted in the deceased sustaining serious injuries and died minutes after the collision.

[7] It is alleged that the deceased was, at the time, employed as a police officer by the South African Police Service, had a duty to support the minor child and in fact did support the minor child.  As a direct consequence of the untimely death of the deceased the minor child was deprived of the support and maintenance which he was entitled to receive from the deceased.  In her representative capacity aforesaid, she claims from the defendant R1200 000.00 for past and future loss of support. 

[8] In its plea the defendant admits the plaintiff’s capacity to sue on behalf of the minor child.  The defendant also admits that the plaintiff has complied with sections 24(1), 24(6) and 19(f) of the Act.  The defendant also admits that there was a motor vehicle collision on the 30 June 2018 on the N10 National Road between Cookhouse and Cradock between the deceased’s vehicle there and then driven by the deceased, and the insured vehicle there and then driven by the insured driver.  The defendant further admits that the deceased died as a consequence of the said collision.

[9] However, the defendant denies that the insured driver was the sole cause of the collision.  The defendant pleads that the collision was caused by the sole negligent and wrongful driving of the deceased.  The defendant pleads many grounds for the alleged negligent driving of the deceased.  They include the deceased allegedly driving into the incorrect side of the road thereby facing oncoming traffic.  It is further alleged that the deceased failed to take evasive action upon warning by the insured driver that he was facing oncoming traffic and the dangers associated therewith.  It is further alleged that the insured driver could not do anything else to avoid the collision.  On these bases, the defendant pleads that the injuries sustained by the deceased and his consequent death were the result of the deceased’s sole negligent and wrongful driving of his motor vehicle.

[10] The defendant denies any knowledge of the deceased’s erstwhile vocation and earning capacity.  The defendant denies the knowledge of the relationship between the deceased and the minor child as well as the obligations of the deceased towards the minor child.  The defendant further denies liability to the plaintiff for the minor child consequent upon the death of the deceased and puts the plaintiff to proof thereof.

[11] The above is more or less a composite summary of the pleadings to the extent that they are relevant for the purposes of determining this application.  The plaintiff herself did not testify but Mr Karel Maarsdorp was called to testify on behalf of the plaintiff.  He testified that he stayed in Bedford and has been staying there since the 1990s.  On 30 June 2018 he was driving from Cradock, going to Bedford.  Before he got to Daggaboers Nek in the early hours of the morning at about half past three to four o’clock he saw an accident.  He had three passengers all of whom were unknown to him.  He works as a taxi operator and uses his own vehicle to transport people who call him to take them to their various destinations.

[12] The weather was bad, but it was not raining and he had his dim headlamps on.  The road is tarred and is in a very good condition.  The weather was slightly misty but it was not raining.  On his side of the road there were two lanes and in the opposite direction there was one lane in that area.  He saw a truck coming over the top downhill driving in the opposite direction towards him.  There was also another vehicle about 800 or so meters ahead of him in the same direction as himself.

[13] At some point he observed that there were no more oncoming lights facing him.  As he came closer he saw a truck which is the insured vehicle running from the right hand side crossing over into his side of the road as it drove down hill and disappeared about 600 or 800 meters in front of him.  They did not notice that there was an accident but saw the truck running over the road and capsizing outside the road.  He did not stop his vehicle to check or offer assistance to the people who might have been injured, but proceeded on his journey to Bedford.  He later saw police vehicles driving towards Cradock and thought that they were on their way to attend to the accident.

[14] After he had offloaded his passengers at about 09h00 or 09h10 he received a phone call from detective Plaatjies telling him that his daughter’s boyfriend had died in that accident.  He then took his daughter, the plaintiff to the accident scene at Daggaboers Nek where it was confirmed that he had died.  However, when they got to the scene of the accident the deceased’s body was no longer there and his vehicle was also no longer there.  Only the truck was still lying there and some breakdown vehicles were trying to remove it.

[15] Under cross-examination Mr Maarsdorp testified that he saw a truck crossing the road in front of him but he did not see whether it had collided with any other vehicle.  He confirmed that he did not see why the truck crossed to his side of the road.  He did not see the deceased’s vehicle because it was dark.  He only learned at about 09h00 in the morning that the deceased had been involved in a car accident and had died.  He denied that it was drizzling at the time of the accident.  In a nutshell, his evidence was that he did not see the collision in which the deceased died. 

[16] After Mr Maarsdorp’s evidence the plaintiff’s case was closed and the defendant applied for absolution from the instance.  In doing so counsel for the defendant, Mr Bodlani cited what he called the plaintiff’s failure to establish a prima facie case that the driving of the insured motor vehicle was wrongful, negligent or unlawful.  He further submitted that the plaintiff had failed to lead evidence to establish that it was that unlawful, wrongful or negligent driving of the insured vehicle that resulted in the deceased being injured as a result of which he died.

[17] He submitted that he based his application on section 17(1)(b) of the Act.  Section 17(1)(b) reads:

       “17(1) The fund or an agent shall-

(a)  …

(b)   subject to any regulation made under section 26, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of neither the owner nor the driver thereof has been established, be obliged to compensate any person (the third party) for any loss or damage which the third party has suffered as a result of any bodily injury to himself or herself or the death of or any bodily injury to any other person, caused by or arising from the driving of a motor vehicle by any person at  any place within the Republic, if the injury or death is due to the negligence or other wrongful act of the driver or of the owner of the motor vehicle or of his or her employee in the performance of the employee’s duties as employee...”

[18] Equally central to the plaintiff’s claim and therefore very relevant for this application is section 3 of the Act which provides:

“3. The object of the Fund shall be the payment of compensation in accordance with this Act for loss or damage wrongfully caused by the driving of motor vehicles.”[1]

[19] The statutory provisions contained in sections 3 and 17(1) are the yardsticks or parameters for payment of compensation under the Act.  This therefore means that no claim may be paid by the defendant unless it is proved to be within these statutory parameters.

[20] It was further submitted on behalf of the defendant that even if I were to find in favour of the plaintiff regarding the prima facie evidence establishing negligent or wrongful driving of the insured vehicle causing the collision, that would not be the end of the matter either.  The second question must still be answered which is whether the plaintiff has led prima facie evidence that the deceased had a duty to support the minor child, whether that duty was legally enforceable and lastly whether the right of the minor child was worthy of protection due to the fact that this is a loss of support claim.

[21] An application for absolution from the instance is provided for in rule 39 (6) of the Uniform Rules of Court as follows:

“39(6) At the close of the case for the plaintiff, the defendant may apply for absolution from the instance, in which event the defendant or one advocate on his behalf may address the court and the plaintiff or one advocate on his behalf may reply.  The defendant or his advocate may thereupon reply on any matter arising out of the address of the plaintiff or his advocate.”

[22] In Claude Neon Lights[2] Miller AJA explaining the applicable test in an application for absolution from the instance, stated as follows:

“… [W]hen absolution from the instance is sought at the close of plaintiff’s case, the test to be applied is not whether the evidence led by [the] plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff.  (Gascoyne v Paul and Hunter, 1917 T.P.D. 170 at p. 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958(4) SA 307(T)).  (My added emphasis.)

“This implies that a plaintiff has to make out a prima facie case – in the sense that there is evidence relating to all the elements of the claim – to survive absolution because without such evidence no court could find for the plaintiff.”[3]

[23] The case before me at this stage therefore is whether the evidence of the plaintiff’s single witness, Mr Maarsdorp, prima facie establishes all the elements in respect of the claim of this nature.  Those are negligent or wrongful driving of the insured vehicle causing the death of the deceased in the first instance.  Secondly whether Mr Maarsdorp’s evidence establishes that the minor child was the deceased’s minor child or whether the deceased had an enforceable duty of support towards the minor child.  The last element is whether consequent upon the death of the deceased, the minor child suffered a loss of support or a right to claim support from the deceased who supported or would have been able to support the minor child.

[24] Mr Jikwana, counsel for the plaintiff opposed the application for absolution and submitted that a prima facie case has been made out by the plaintiff.  He submitted, correctly so, that whatever is admitted by the defendant in its plea relieves the onus on the plaintiff to prove it.  Simply put, the plaintiff did not have to lead evidence to prove that which is admitted in the defendant’s plea.  He then alluded to the fact that in her particulars of claim the plaintiff alleges that she has complied with sections 24(1), 24(6) and 19(f) of the Act.  It is so that indeed the defendant unequivocally admits that the plaintiff has complied with these statutory provisions.

[25] These provisions of the Act read:

“Procedure

          24(1) A claim for compensation and accompanying medical report under section 17(1) shall –

(a)  be set out in the prescribed form, which shall be completed in all its particulars;

(b)  be sent by registered post or delivered by hand to the Fund at its principal, branch or regional office, or to the agent who in terms of section 8 must handle the claim, at the agent’s registered office or local branch office, and the Fund or such agent shall at the time of delivery by hand acknowledge receipt thereof and the date of such receipt in writing.

               …

          24(6) No claim shall be enforceable by legal proceedings commenced by a summons served on the Fund or an agent –

(a)    before the expiry of a period of 120 days from the date on which the claim was sent or delivered by hand to the Fund or the agent as contemplated in subsection (1); and

(b)    before all requirements contemplated in section 19(f) have been complied with:

 Provided that if the Fund or the agent repudiates in writing liability for the claim before the expiry of the said period, the third party may at any time after such reputation serve summons on the Fund or the agent, as the case may be.”

[26] Section 19(f) of the Act provides:

“Liability excluded in certain in certain cases

19. The Fund or an agent shall not be obliged to compensate any person in terms of section 17 for any loss or damage –

 …

(f) if the third party refuses or fails –

(i) to submit to the Fund or such agent, together with his or her claim form as prescribed or within a reasonable period thereafter and if he or she is in a position to do so, an affidavit in which particulars of the accident that gave rise to the claim concerned are fully set out; or

(ii) to furnish the Fund or such agent with copies of all statements and documents relating to the accident that gave rise to the claim concerned, within a reasonable period after having come into possession thereof…”

[27] He then referred to the claim form, RAF1 form, which was submitted to the defendant when the claim was lodged. Attached to the RAF1 form were the identity document copies of the plaintiff and the deceased, a copy of the deceased’s death certificate and a copy of the birth certificate of the minor child.   Among other things the form was filled out with details of the claimant, the deceased and the minor child.  As I understood it, the argument was that the admission by the defendant in its plea that sections 24(1), 24(6) and 19(f) had been complied with relieved the plaintiff from the obligation to adduce evidence to prove the information contained in those documents.  For this reason, there was no need to lead evidence in respect of the loss of support since, according to RAF1 form the minor child is the biological child of the deceased; the deceased had a duty of support towards the minor child.

[28] Further submissions were made in amplification of the above, with reference to the issues that were agreed upon in the pre-trial minute as issues for determination by court.  The issues recorded in the pre-trial minute are reflected as follows:

“3.1 The trial court will be asked to determine the following issues:

         3.1.1 whether the cause of the accident was as a result of the insured driver’s negligent driving; and

3.1.2 whether the defendant is liable to compensate the plaintiff’s minor child’s proven or agreed damages.”

[29] It was also submitted that the denial by the defendant that the nexus between the deceased and the minor child was established in evidence was ill advised.  It was also mentioned that apparently an undertaking was made by the defendant that if the plaintiff is able to prove liability, the defendant would settle the quantum of damages on the basis of the plaintiff’s expert’s quantification thereof.

[30] The above are the main submissions made on behalf of the plaintiff to ward off the defendant’s application for absolution from the instance.  Before I deal with them directly, I consider it necessary to restate again the legal position in respect of claims against the Fund generally and in respect of plaintiff’s’ claims or loss of support claims in particular.  I must, at the outset, point out that the claims against the Road Accident Fund have a long history and our law reports are literally awash with a number of judicial pronouncements on the claims such as this matter. 

[31] In Evins[4] Jansen JA explained the differences between an Aquilian action and a loss of support claim both of which may very well arise against the same defendant and from the same incident.  He said:

“In the case of an Aquilian action for damages for bodily injury (and here I use the term Aquilian in an extended sense to include the solatium awarded for pain and suffering, loss of amenities of life, etc, which is sui generis and strictly does not fall under the umbrella of the actio legis Aquiliae: Government of RSA v Ngubane, 1972 (2) SA 601 (AD) at p 606 E-H) the basic ingredients of the plaintiff’s cause of action are (a) a wrongful act by the defendant causing bodily injury (b) accompanied by fault, in the sense of culpa or dolus, on the part of the defendant, and (c) damnum, ie loss to plaintiff’s patrimony, caused by the bodily injury.  The material facts which must be proved in order to enable the plaintiff to sue (or facta probanda) would relate to these three basic ingredients and upon the concurrence of these facts the cause of action arises.  In the usual case of bodily injury arising from a motor accident this concurrence would take place at the time of the accident.  On the other hand, in the case of an action for damages for loss of support the basic ingredients of the plaintiff’s cause of action would be (a) a wrongful act by the defendant causing the death of the deceased, (b) concomitant culpa (or dolus) on the part of the defendant (c) a legal right to be supported by the deceased, vested in the plaintiff prior to the death of the deceased, and (d) damnum, in the sense of a real deprivation of anticipated support.  The facta probanda would relate to these matters and no cause of action would arise until they had all occurred.

From this analysis it is evident that, although there is a measure of overlapping, the facta probanda in a bodily injury claim differs substantially from the facta probanda in a claim for loss of support.  Proof of bodily injury to the plaintiff is basic to the one; proof of death of the breadwinner is basic to the other.  Proof of a right to support and the real expectation that, but for the breadwinner’s death, such support would have been forthcoming is basic to the one, irrelevant to the other.  It is evident, too, that even where both claims flow from the same accident, the cause of action in each case may arise at a different time.  As I have said, the cause of action in respect of bodily injury will normally arise at the time of the accident, ie when the bodily injury and the consequent damnum are inflicted; in the case of the cause of action for loss of support, this will arise only upon the death of the deceased, which may occur some considerable time after the accident.  Until such death there is, of course, no wrongful act qua the plaintiff; only a wrongful act qua the person who is later to become the deceased.

Consequently, applying (as I think I should) the ordinary and well-accepted meaning of cause of action, I am of the view that at common law a plaintiff’s claim for damages for bodily injury is a cause of action quite separate and distinct from that which the same plaintiff may acquire against the same defendant for loss of support, even though both causes of action derive from a common occurrence.”

[32] The defendant admits that the deceased died in that car accident which occurred in the early hours of the morning on the 30 June 2018 on the N10 National Road between Cookhouse and Cradock.  The defendant also admits that the deceased’s vehicle was involved in a collision with the insured vehicle driven by the insured driver.  The cause of death is also admitted as being the injuries the deceased sustained as a result of the collision or consequent upon the occurrence of the collision.  Therefore, there would have been no need for the plaintiff to prove these admitted averments.

[33] However, the defendant specifically denied that the insured driver was the sole cause of the accident.  The defendant further alleged that “the deceased’s sole negligent and wrongful driving of his vehicle was the sole cause of the collision”.  As indicated above, there is no need to lead evidence to prove allegations that have been admitted in the pleadings.  By the same token there is an obligation and an onus to prove all the allegations that have been denied.  In this case, the negligent and wrongful driving on the part of the insured driver have been denied by the defendant which alleged that in fact it is the deceased’s negligent driving that caused the collision which lead to his death.

[34] In his address at some point, counsel for the plaintiff, posed a very poignant question.  That question was, “was there wrongfulness in the manner that the insured vehicle was driven?”  He then pointed out, and again, correctly so, that the issue before court was whether there was wrongfulness in the driving of the insured vehicle.  He then came up with what I consider to be a very novel approach.  He referred to sections 58(1) and 63(1) and (2) of the National Road Traffic Act 93 of 1996.

[35] These statutory provisions read:

“58(1) Subject to subsection 3, no person shall, unless otherwise directed by a traffic officer, fail to comply with any direction conveyed by a traffic sign displayed in the prescribed manner.

…

 63(1) No person shall drive a vehicle on a public road recklessly or negligently.

(2) Without restricting the ordinary meaning of the word ‘recklessly’ any person who drives a vehicle in wilful or wanton disregard for the safety of persons or property shall be deemed to drive that vehicle recklessly.

  (3) In considering whether subsection (1) has been contravened, the court shall have regard to all the circumstances of the case, including, but without derogating from the generality of subsection (1) or (2), the nature, condition and use of the public road upon which the contravention is alleged to have been committed, the amount of traffic which at the relevant time was or which could reasonably have been expected to be upon that road, and the speed at and manner in which the vehicle was driven.”

[36] He then submitted that unless the defendant testifies the evidence of the plaintiff would be sufficient to find the defendant liable for the claimed damages.  I understand this to mean that the evidence of the plaintiff would be sufficient to find that the insured driver drove the insured vehicle negligently and wrongfully.  Unfortunately, the evidence of the plaintiff that “will be sufficient to find the [defendant] liable for damages claimed” was not pointed out thus leaving the court at sea as to which aspect or part of the plaintiff’s evidence was being referred to.

[37] Surely, the Court should not be left to its own devices to figure out which part of the evidence was being referred to.  On the contrary the Court must be directed to the relevant part of the evidence especially where it is the case of the defendant that the plaintiff failed to lead evidence that is relevant to the issue.  As far as I could determine, and in light of the reference to the National Road Traffic Act, the relevant part of Mr Maarsdorp’s evidence is that the insured vehicle did cross the barrier line into its right hand side.  It is common cause that the insured vehicle crossed on to the side of the oncoming traffic into the other side of the road where it eventually capsized outside the road. 

[38] Mr Maarsdorp did not give relevant evidence that related to the circumstances prevailing on that road at the time as required by section 63(3).  Most significantly he did not give evidence of “the speed at and manner in which the vehicle was driven.”[5] There was no evidence on which it could, prima facie, be said that the insured vehicle was driven recklessly[6].  Reference to section 58(1) is even more confusing.  This is so because all this subsection does is to prohibit driving contrary to a road traffic sign that is displayed.  The actual road traffic sign referred to that was displayed was not pointed out nor did Mr Maarsdorp give evidence of a road traffic sign that was displayed and contrary to which the insured driver allegedly drove the insured vehicle. 

[39] It is important to recall that the evidence of Mr Maarsdorp was that he did not see what happened before the insured vehicle veered from its lane into the incorrect side of the road and there was mist and dust on the road.  Mr Jikwana did concede that it was Mr Maarsdorp’s evidence that he did not witness the collision.

[40] It is even more difficult to understand without evidence, the suggestion that the veering off the road by the insured vehicle was before the collision and thus it was that veering off that caused the collision.  This is important because the defendant has pleaded that the deceased’s vehicle was driven recklessly and crossed into the incorrect side of the road thereby facing oncoming traffic.  This is an evidential issue not answerable by reference to the National Road Traffic Act as Mr Jikwana sought to do.  Therefore, whichever way one looks at his evidence, Mr Maarsdorp did not see the insured vehicle crossing over to the other side of the road and hitting the deceased’s vehicle.  His evidence is not different from that of a person who arrived after the fact.

[41] The question that must be answered is whether there is any evidence of negligence and wrongfulness in the driving of the insured vehicle.  This is important because on any reading of the Act, the basis of compensation for damages is the negligent and wrongful driving of the insured vehicle.  Once there is no evidence of the wrongful driving of the insured vehicle, that is the end of the matter as the basis for a claim for damages is non-existent.  A statutory provision is simply no substitute for evidence and the reference to the National Road Traffic Act without even a minimum of evidence on which to draw some inference must therefore be misplaced.  It cannot be that because the insured vehicle, at some point, crossed on to the wrong side of the road therefore it was being driven wrongfully.  If the Legislature had intended to compensate all road accident victims regardless of fault it would have said so.

[42] It was submitted that the insured driver, who knows how the accident occurred must be called upon to come and give evidence. The difficulty with this submission is that the defendant’s plea is that it was in fact the wrongful driving of the deceased which caused the collision. Expecting the defendant’s witness to testify in the circumstances where there is no prima facie evidence of negligent and wrongful driving of the insured vehicle is in my view, a classic case of a litigant hoping that the opponent’s witness will testify and as he does that he might shore up the case of the plaintiff.

[43] More than a century ago the legal position regarding the threshold of evidence to ward off an application for absolution from the instance was articulated succinctly in Gascoyne[7] and it still applies today.  De Villiers JP stated the legal position as follows:

“At the close of the case for the plaintiff, therefore, the question which arises for the consideration of the Court is, is there evidence upon which a reasonable man might find for the plaintiff?  And if the defendant does not call any evidence, but closes his case immediately, the question for the Court would then be “is there such evidence upon which the Court ought to give judgment in favour of the plaintiff?”

[44] These questions are, in my view, not an expression of two separate tests with one applicable “at the close of the case for the plaintiff” and the other applicable “if the defendant does not call any evidence”.  They are the expression of the same test and both questions must be answered at the close of the case for the plaintiff.  If the answer to both questions is in the affirmative, the application for absolution from the instance must be refused.  If the answer is in the negative, the application for absolution must be granted.

[45] On the question of negligence and wrongfulness Mr Maarsdorp’s evidence, at its highest pinnacle, was that he did not see the collision nor did he see the deceased’s vehicle before, during or even after the collision.  I could find no basis on which a Court acting reasonably could come to the conclusion that there was negligence and wrongfulness in the driving of the insured vehicle. 

[46] The defendant has also raised the fact that this matter concerns a claim for loss of support.  The submission in this regard is that the plaintiff was obliged to, but did not tender any evidence of a nexus between the deceased and the minor child on whose behalf the claim is made.  It is so that Mr Maarsdorp, the only witness for the plaintiff never mentioned the minor child even indirectly.

[47] In the particulars of claim the minor child is mentioned only on two occasions.  The first time the minor child is mentioned is in relation to the plaintiff’s capacity to sue and is as follows:

        “1. The plaintiff is G[…] V[….] V[…] H[….];

1.1   an adult female born on the 25^th day of July 1996; and

1.2   who is presently residing at Goodwill Park, in the local municipal district of Bedford, Eastern Cape Province; and

1.3  who is sing herein in her representative capacity as the biological mother and natural guardian of her minor child namely, T[..] N[…] V[…] H[…], a male child born on the 13^th day of March 2018.”

[48] The defendant admits this allegation and therefore as Mr Jikwana correctly pointed out there would have been no need for the plaintiff to lead evidence in this regard.  That the minor child is the biological child of the plaintiff is not in issue.

[49] The minor child is not mentioned again in the particulars of claim until two paragraphs before the last one where the allegation is couched as follows:

“9. At the time of the collision;

9.1 the deceased was gainfully employed by the South African Police Services;

9.2 as a Police Officer;

9.3 stationed at Bedford Police Station, in the Province of the Eastern Cape.

9.4 the deceased had a legal duty to support the minor child and the former was supporting the child.

10.  as a direct consequence of the deceased’s untimely death plaintiff’s minor child was deprived of all benefits associated with the deceased’s legal obligation to maintain and support him in accordance with his needs and in the process has suffered damages as follows:-

10.1 In her representative capacity as the biological mother and natural guardian to her son, the plaintiff exerts a claim for:-

10.2 Past and future loss of support R1 200 000.00.”

[50] Most significantly the defendant puts all of these allegations in issue and pleads as follows:

“AD PARAGRAPG 9, 10 AND 11:

3. The defendant has no knowledge of the deceased’s:

            3.1 The deceased’s erstwhile vocation and earning capacity;

            3.2 The deceased’s relationship and obligations towards the minor child;

3.3 The consequences of the deceased’s death for the minor child; does not admit those pleaded and puts plaintiff to their proof.

4. In the circumstance, the defendant denies that it is liable to the plaintiff in the amount claimed or at all.”

[51] Firstly, the nature of the relationship between the deceased and the minor child is not pleaded at all by the plaintiff and it is not clear to me why this relationship was never pleaded.  Secondly, no evidence was tendered by the plaintiff to deal with the issues raised by the defendant in its plea.  No evidence was tendered stating what the relationship between the minor child and the deceased was.  Put differently the basis of the deceased’s legal duty to support the minor child was left hanging in the air as far as the particulars of claim are concerned.  This makes it difficult to associate from the particulars of claim - the unfortunate death of the deceased with the loss allegedly suffered by the minor child.

[52] That the plaintiff had an evidential burden to discharge in this regard goes without saying.  The plaintiff’s only witness, Mr Maarsdorp, not only did he not say anything about the minor child but also no evidence whatsoever was tendered to deal with any of the issues that the defendant did not admit.  In essence therefore in both the particulars of claim and the plaintiff’s evidence the nature of the relationship between the deceased and the minor child and therefore the existence of the legal duty of support was not dealt with.

[53] Furthermore, the defendant denied knowledge of the vocation of the deceased at the time of the accident.  Therefore, even if the legal duty to support the minor child was not in issue, that would not have been the end of the matter.  There still would have had to be evidence tendered to prove that the deceased was able to discharge his legal duty of support to the minor child.  None of the defendant’s denials have been dealt with in the evidence that was tendered before plaintiff closed her case.

[54] I understood Mr Jikwana to be submitting that the relationship of the deceased and the minor child is dealt with in the RAF1 form.  Indeed, clause 18 of the claim form reflects the details of the minor child.  It also reflects the reason for dependence as that the minor child is the biological child of the deceased.  With reference to the defendant’s admission in its plea that the plaintiff has complied with sections 24(1), 24(6) and 19(f) of the Act, it was submitted that the relationship between the minor child and the deceased was not an issue that required evidence to be led as it had been admitted by the defendant.  It was sought to rely on the annexures to the RAF1 form which included the birth certificate of the minor child.  However, the birth certificate does not disclose the identity of the father at all.

[55] I think that this submission seeks to stretch the purpose of those sections of the Act too far to things that could not possibly have been intended by the Legislature.  My understanding of the provisions in these sections is that they regulate the process of the lodgement of claims with the defendant which is a requirement before summons can be issued. 

[56] When summons is issued and the defendant admits that these provisions have been complied with, I simply do not think that the defendant should be understood to be admitting any relationships that are said to exist by the claimant based on information contained in the claim form.  Clearly, as Mr Bodlani pointed out when the defendant admitted in its plea that the plaintiff’s averment that those sections had been complied with it was merely doing exactly that – admitting that the procedure laid down therein has been complied with.  Those sections are not about the correctness or truthfulness of the information contained therein.  To regard admitting that these sections have been complied with as the admission of the contents thereof or the discharging of the evidential burden is, in my view, far-fetched.

[57] In Busuku[8] Alkema J explained the purpose and the approach to these statutory provisions.  He said:

“It has repeatedly been recognised that the statutory requirements of the Act relating to the submission of the claim form and medical report are peremptory; and that the prescribed requirements concerning the completeness of the form including the medical report, are directory.  This means that substantial compliance with such requirements suffices.

In Pithey v Road Accident Fund 2014 (4) SA 112 (SCA) the Supreme Court of Appeal held in para 19:

‘It has been held in a long line of cases that the requirement relating to the submission of the claim form is peremptory and that the prescribed requirements concerning the completeness of the form are directory, meaning that substantial compliance with such requirements suffices.  As to the latter requirement this court in SA Eagle Insurance Co Ltd v Pretorius reiterated that the test for substantial compliance is an objective one.’

As I understand the above dictum, the statutory requirements relating to the submission of the claim are peremptory, meaning there must be strict compliance with the requirements.  However, the requirements relating to the content thereof, or the level of completeness of the form, are directory, meaning that substantial compliance will suffice.  The issue of substantial compliance therefore only relates to the content of the claim form and not to the submission of the claim form.  It follows that the issue of substantial compliance only arises once it is found that there has been exact compliance with the requirements relating to the submission of the claim form, and then only in respect of the content of the form.”

[58] There are two very important difficulties with Mr Jikwana’s submission that there was no need to lead evidence after the admission in the plea that the statutory provisions relating to the lodging of claim forms have been complied with.  The first one is that the lodging of a claim form happens at an early stage of a claim against the Fund.  To then regard admitting that those statutory provisions have been complied with somehow dispenses with the need to lead evidence relating to the information contained in the claim forms cannot be correct. I was not referred to any authority to for that proposition.

[59] Secondly the defendant has, in its plea, specifically denied the relationship between the deceased and the minor child and challenges the plaintiff to prove that relationship.  The defendant has also denied the knowledge of the deceased’s vocation and earning capacity and the consequences of the deceased’s death on the minor child.

[60] A plea, like any other document, must be read as a whole.  Selective reading or reading certain clauses or paragraphs in isolation of the others cannot be correct and the context where the understanding of the document is based would be lost as clearly stated in Endumeni.[9]  It would be risky for the plaintiff to focus on the admission made about compliance with these sections even if her understanding was that the admission also covered the information in the claim form and ignore the specific denials of the defendant regarding the relationship between the deceased and the minor child.  That the defendant has clearly and even emphatically denied ― this very important aspect of the claim as it relates to loss of support ― and is clear from the plea itself.  What this means is that it is the defendant’s case that the relationship between the deceased and the minor child ― the very bedrock of this loss of support claim is required to be proved.

[61] I was referred to a number of authorities by counsel for the plaintiff on the basis of which it was submitted that I should dismiss the application for absolution.  One of those cases is De Klerk v ABSA Bank.[10]  In that case one of the things that the court did was to confirm and restate the correct approach to an application for absolution, about which there can be no controversy.  That approach has a few elements in it.  They include the fact that the plaintiff is not expected to establish what would finally be established ultimately but whether a court applying its mind reasonably to the evidence at the close of the plaintiff’s case “could or might” find for the plaintiff as the court said in Gascoyne.[11]

[62] One of the things that Schutz JA also said in De Klerk[12] as he was dealing with the different considerations applicable in an absolution application is the following:

“This brings me to point 4 – the final and critical question – whether the trial Judge was right in saying that there was not a tittle of evidence that De Klerk would have found alternative investments.  I have set out a summary of the evidence given by Gouws and De Klerk in paras [17] – [23].  At this stage, mindful of what was said in Gafoor’s case, the less said the better. But I would add that, once the evidence is approached shorn of the misdirections a quo, to which I have referred, and bearing in mind the passage relied on by Mr Maritz as to De Klerk’s purpose (which seems to have been overlooked a quo), and applying the legal principles which may be appropriate, I do not think that it can be said there was not a tittle of evidence.”[13]

[63] In this case there was indeed not a tittle of evidence that the accident was caused by the negligent driving of the insured vehicle.  There was not a tittle of evidence that the deceased was an employee of the SAPS and what his earning capacity was and therefore whether he was able to support the minor child.  There was not a tittle of evidence that even if he was in some vocation - whatever it was and through that he was able to provide financial support to the minor child.  Most importantly and regardless – there was not a tittle of evidence that the deceased had a duty of support towards the minor child - whatever the basis thereof was; be it that of a biological father or any other basis.  This is important because the defendant has denied the knowledge of these aspects of the plaintiff’s case and thus the plaintiff had to adduce some prima facie evidence dealing with them.

[64] I do not how why the plaintiff was not called to testify on these issues or any other witness for that matter.  I also do not know why the plaintiff’s only witness, her father Mr Maarsdorp either steered off any of these issues, nor was he directed to any of them during his evidence in chief.  It is even more surprising that he did not say anything about his grandchild or the fact that the deceased had fathered his grandchild.  I am of course assuming without concluding that he would have known that for a fact from his conversations with his daughter, the plaintiff.

[65] It would seem that the only way to get the tittle of evidence which Mr Maarsdorp did not provide before the plaintiff’s case was closed would be to dismiss the absolution application in the hope that the defendant would call its witness who might provide some answers in relation to what happened at the scene of the accident.  Even so, I do not think that the defendant’s witnesses would go so far as the evidence relating to the loss of support about which it is inconceivable that the defendant’s witnesses, if called would have known.  I do not think that our civil trial dispensation has regressed to that extent.  I say regressed because I simply do not think that it has ever been part of our jurisprudence to allow the trial to proceed where the minimum threshold of the plaintiff’s evidence required is not reached and cross fingers that the defendant does not close its case without calling evidence.

[66] It is difficult to avoid the conclusion that this court is, on the basis of the submissions made by counsel for the plaintiff, invited to drift into the realm of congesture and make assumptions based on the claim documents that were lodged with the defendant and accept them as evidence of what they purport to be.  On speculations and assumptions the Supreme Court of Appeal expressed the legal position in a very emphatic way in Hlomza[14].  Writing for the full court Lewis JA said:

“On the basis of assumptions made by the full court and, despite the denials in the plea, it concluded that the death of Mr Hlomza was reasonably foreseeable; that the police’s failure to dispossess him of his firearm was thus negligent; that it was also wrongful, given the strictures on possession of official firearms by police officers when off-duty, and their knowledge of his instability and lack of fitness to possess the weapon; and that the negligent conduct was the cause of the death leading to the loss of support by his dependants.

 All the assumptions made – for example, that suicide, in the context of a troubled domestic relationship is foreseeable -- were pure conjecture.  From the fact that Mr Hlomza had first shot his wife before killing himself, the full court inferred that the suicide was predictable.  It is not necessary to examine the assumptions and the conjecture as to what the police knew, or should have known and should have done: They are no more than speculative assumptions.  The onus was on Mrs Hlomza to prove the facts giving rise to the Aquilian action, from which would flow the action for loss of support, on a balance of probabilities.  She did not even make out a prima facie case.”

 [67] I have therefore come to the conclusion that the plaintiff failed to adduce prima facie evidence that the death of the deceased was due to the negligence or other wrongful act of Thabiso V Mbotshelwa, the driver of the insured vehicle.  I have also come to the conclusion that in any event, there was also not a tittle of evidence to sustain the loss of support claim on behalf of the minor child. 

[68] In the result the following order shall issue:

1. The defendant is absolved from the instance.

2. The plaintiff shall pay the defendant’s taxed or agreed costs on the High Court scale.

________________________

M.S. JOLWANA

JUDGE OF THE HIGH COURT

Appearances:

Counsel for the Plaintiff: T.M. JIKWANA

Instructed by: S MAGOBIANE ATTORNEYS

EAST LONDON

Counsel for the Defendant: A. BODLANI

Instructed by: SMITH TABATA INC.

EAST LONDON

Heard on: 10 March 2020

Delivered on: 26 May 2020

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