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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

26/11/15

CASE NO: 1090/2014

In the matter between:

HLENGIWE MNGUNI                                                                                               PLAINTIFF

and

ROAD ACCIDENT FUND                                                                                     DEFENDANT

J U D G M E N T

KUBUSHI, J

[1] I first have to apologise for taking this long in delivering this judgment. As I mentioned in court when the matter was argued, the issue before me is intricate and important and if resolved properly it might set a precedent within the motor vehicle accident claims. The matter was argued before me on 5 March 2015. After argument by counsel I reserved judgment. The plaintiff's counsel had during argument provided me with heads of argument but the heads were not satisfactory as they were skimpy. Due to the importance of the issue argued, at the end of argument I requested both counsel to go back and do an extensive research on the matter and to furnish me with heads of argument. The plaintiff's counsel furnished me with her further heads of argument on 6 May 2015; counsel for the defendant's heads of argument were provided on 22 May 2015  and the plaintiff's heads of argument in reply thereto were received on 27 July 2015. I also received a research report from the court researchers on 18 August 2015. Due to the intricacies of the issue before me, over and above, I also did my own research. It is only now that I hand down judgment. I am grateful to both counsel for the extensive and well researched heads of argument which were of immense help to me in resolving the issue before me.

[2] The issue was raised as a point in limine. The point in limine arose within the factual background wherein the plaintiff is suing the Road Accident Fund ("the Fund") in her representative capacity as the natural guardian (mother) of the minor child, Xolisile Thandekile Mnguni ("Xolisile"). Xolisile's father, Bhekumuzi Wiseman Tshabalala ("the deceased") died in a motor vehicle collision, hence the claim against the Fund. There were two motor vehicles involved in the collision and the deceased was the driver of one of the motor vehicles.

[3] On the merits, the factual matrix is not in dispute.  What however appears to be in dispute is who between the two drivers of the motor vehicles involved in the collision, is the cause of the collision. From the heads of argument, it appears as if the parties are not common cause as to whether an agreement had been reached between them as to the person who caused the collision. The plaintiff's contention is that no concession was made during argument that the deceased was the sole cause of the collision. Her counsel's submission being that the plaintiff's case against the defendant based on negligence of the insured driver  remains alive should the point in limine be decided in the defendant's favour. The defendant's submission, in contrast, is that it was common cause between the parties at the hearing that should the court find in the defendant's favour on its limited point it will be the end of the matter; and, should the court find in favour of the plaintiff the defendant has to pay the amount of the plaintiff's damages. From my recollection of what transpired in court and what appears  in the record of the proceedings  of 5 March 2015, there was no agreement between the parties as to the person who caused the collision. That issue is still to be determined. The point in limine having been resolved, the matter has to proceed on the merits and quantum in order to determine who of the two drivers negligently caused the collision and what damages are due to the plaintiff.

[4] The essence of what I am called to adjudicate upon in this instance is the question whether a dependant of a deceased breadwinner is entitled to claim compensation in the form of loss of support from the Fund in terms of the Road Accident Fund Act, No. 56 of 1996 ("the Act"), where the deceased breadwinner was the sole cause of the collision wherein the deceased breadwinner died, and which resulted in the dependant's loss of support the breadwinner had provided.

[5] The issue of who caused the collision having not been resolved at this stage, I have to assume for purpose of resolving the point in limine, that the deceased was the sole cause of the collision.

THE NATURE AND SCOPE OF THE CLAIM

[6] The nature and scope of the plaintiff's claim is undoubtedly a claim for loss of support on behalf of Xolisile.

[7] A claim for maintenance and loss of support suffered as a result of a breadwinner's death is recognised at common law as a 'dependant's action'. The object of the remedy is to place the dependants of the deceased breadwinner in the same position, as regards maintenance, as they would have been had the deceased breadwinner not been killed. The remedy has been described as 'anomalous, peculiar and sui generis' because while the defendant incurs liability because he or she has acted wrongfully and negligently (or with dolus) towards the deceased breadwinner and thereby caused the death of the deceased breadwinner, the dependants derive their right not through the deceased breadwinner or his or her

estate but from the fact that the dependants suffered loss by the death of the deceased breadwinner for which the defendant is liable.[1]

[8] It is said that an essential and unusual feature of the remedy for loss of support is that, while the defendant incurs liability because he or she has acted wrongfully and negligently (or with dolus) towards the deceased and thereby caused the death of the deceased breadwinner, the claimants (the dependants) derive their right of action not through the deceased breadwinner or from his or her estate but from the fact that the dependants have been injured by the death of the deceased breadwinner and that the defendant is in law responsible therefor. [2]

[9] The traditional view that the dependant's action for loss of support is in our law a sui generis and anomalous remedy has through the years elicited strong criticism. The criticism is based on the view that the dependant's action constitutes a departure from normal delictual principles where a delictual claim is based on a delict committed against someone else other than the dependant. The proponents of the criticism against the traditional view, supports what is referred to as the 'theoretically correct approach' on the basis that the traditional view cannot be justified dogmatically. The crux of the criticism is that it is completely illogical to base an action for damages on a delict committed against and therefore damage caused by another person - almost in the form of delict per consequentias. The dogmatically correct view is that the dependant's claim should be based on the wrongful, culpable causing of damage (loss of support) to the dependant himself or herself.[3]

[10] The 'theoretically correct approach' is said to be endorsed by implication by both the Supreme Court of Appeal and the Apportionment of Damages Act 34 of 1956 as amended ("the Apportionment of Damages Act").[4] The Supreme Court of Appeal's finding in cases like Amod v Multilateral Vehicle Accidents Fund 1999 (4) SA 1319 (SCA) at 1326 and Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) p370 - 378, that the dependants right to support was, in the circumstances, worthy of protection against the negligent conduct of a third party, is said to be a clear indication that the action of dependants is based on a delict against the dependants themselves. Similarly, the Apportionment of Damages Act provides that if the negligent conduct of the deceased breadwinner and the third party contributed to the breadwinner's death and consequently to the dependants' loss of support, they are regarded as joint wrongdoers, and therefore as persons who are jointly and severally liable in delict vis-a-vis the deceased breadwinner's dependants for the same damage.[5] Seen in this light, both wrongdoers have committed delicts against the dependants of the deceased breadwinner and the dependants' claim is accordingly based on a delict committed against themselves.

[11] The author Boberg,[6] however, contents that the 1971 amendment of the Apportionment of Damages Act, which introduced the provisions of s 2 (1B), does not confer rights of action upon dependants: it merely creates a new class of joint wrongdoers - the injured person or the deceased's estate. The author opines that the rights of the plaintiff must be sought within the four corners of s 2 of the Apportionment of Damages Act. The section, according to the author, deals only with joint wrongdoers: it does not cover cases where the plaintiff s loss has been caused by a single wrongdoer and as such, he is of the opinion that the conclusion seems inevitable that no right of action is conferred upon a dependant whose breadwinner has killed or injured himself or herself by his or her fault alone. He goes on to state the following:

"Once again the legislature has removed one anomaly only to create another. It appears that the dependant can sue the breadwinner or his estate together with another joint wrongdoer or alone where there is another joint wrongdoer (although the latter is not sued), but that no action lies against the breadwinner or his estate in cases where the breadwinner's fault was the sole cause of his injury or death."

[12] Although some of the High Courts in the judgments like Madyibi v Minister of Safety and Security (1034/2004) [2008] ZAECHC 30 (08 December 2006) para 7 and the High Court judgment in Brooks v Minister of Safety and Security above, have accepted the 'theoretically correct approach', the position, that the dependants' action should be based directly on a delict committed against them, remains unclear as no court has decisively decided to follow the 'theoretically correct approach' in their decisions.

[13] The author, Neethling J,[7] when dealing with claims for loss of support in relation to a breadwinner who committed a criminal act which resulted in his or her incarceration and a breadwinner who committed suicide, opines as follows:

"Although the Supreme Court of Appeal (in Amod v Multilateral Motor Vehicle Accident Fund above) is still hesitant to declare outright that the dependants' action is based directly on a delict committed against them, there are clear signs that that court has, at least by implication, accepted this position: the wrongfulness of the third party's conduct (that is, causing loss of support via the death of the breadwinner) vis-a-vis the dependant is determined by enquiring whether, according to the bani mores criterion for wrongfulness, the dependant's right of support is worthy of protection against such conduct. This approach has also been accepted by the legislature, since the deceased breadwinner and the third party are regarded, where appropriate, as joint wrongdoers against the dependant. Furthermore, the approach is supported by most academic commentators as being dogmatically correct because it accords with the foundations of our law of delict, and to this end the opposite, traditional approach is therefore rejected, mainly for the reason that it is completely unacceptable to base a delictual claim (indirectly) on a delict committed against someone else. Recently, especially in Brooks, the High Court also strongly favoured the latter approach. For these reasons the Supreme Court of Appeal should accept the direct nature of the dependants' action in South African law, thereby adapting the remedy to modern conditions and legal thought.

Finally, unless there are positive legal and policy considerations to the contrary, the proposition that the action of dependants vis-a-vis third parties should not be extended to encompass the situation where the breadwinner by his deliberate act renders himself unable to fulfil his duty of support towards his dependants - irrespective of whether this is accomplished by a criminal act or suicide - is sound and should be supported."

[14] Having extensively researched the issue before me, I did not come across any other judgment and none was placed before me, wherein the acceptance of the 'theoretically correct approach' was discussed, except the two cases I have referred to above in this judgment. The Supreme Court of Appeal in the Brooks-judgment above did not consider the 'theoretically correct approach' but out-rightly accepted the traditional approach as the correct one. In this regard that court considered the scope of action in that case as being: 

'. . . due to the third parties who do not derive their rights through the deceased or his/her estate but rather from the fact that they have been injured by the death of their breadwinner and that the defendant is in law responsible for such death . . .'[8]

[15] It is trite that the dependants' action constitutes a departure from the normal delictual principles, and that is why the courts regard the action as an anomaly - and describe it as sui generis.  The reason for this anomaly is because the action is not based on the law of delict as we know it. In a loss of support claim, the delict is not committed against the dependant himself or herself, but the deceased breadwinner. [9]

[16] Perhaps the time has come for the position of dependants' claim for loss of support to be normalised to fit in with the foundations of our law of delict. The High Court in the two judgments I have quoted above have, with respect, been brave enough to accept the 'theoretically correct approach'. The legislature has also, whether intentionally or not, accepted this approach by regarding the deceased breadwinner and a third party as joint wrongdoers. In such circumstances, it would thus be possible for dependants to hold a deceased breadwinner liable where he or she has contributed to the negligent conduct which caused the breadwinner's death. The writer, Boberg in, 1971 SALJ 452, though not in support of the 'theoretically correct approach' acknowledges the anomaly created by the Apportionment of Damages Act in allowing the dependants to sue the breadwinner or his or her estate together with another joint wrongdoer or alone where there is another joint wrongdoer (although the latter is not sued), whereas no action lies against the breadwinner or his or her estate in cases where the breadwinner's fault was the sole cause of his or her injury or death. This anomaly, in my view, ought to be normalised.

[17] To my mind, if the 'theoretically correct approach' is followed, the dependants in the circumstances of this instance may be entitled to claim damages for loss of support against a deceased breadwinner who has wrongfully or negligently caused his or her own death. The acceptance of the 'theoretically correct approach' will cure the anomaly occasioned by the Apportionment of Damages Act and will do away with the sui generis nature of the remedy in dependants' claims of loss of support.

[18] Should the 'correct approach' be followed, wrongfulness in a claim for loss of support will lie directly in the infringement of the  dependants' personal right to support from the person who caused the delict. And, in circumstances such as in this instance, will lie directly against the deceased breadwinner. The killing of the deceased breadwinner must be actionable as a wrongful act against the dependants concerned. Since, as the law stands, the loss of support of dependants is said to constitute pure economic loss, the questions that would, therefore, arise would be whether the deceased breadwinner had a legal duty to support the dependants and whether such duty was worthy of protection. In the circumstances of this instance, I would assume without finally concluding, that there was a duty on behalf of the deceased breadwinner to support Xolile and that Xolile's right to support by the deceased breadwinner was worthy of legal protection against the breadwinner's negligent conduct. The protection would then, be determined by the criterion of bani mores (legal convictions of the community), which is considered a general yardstick for wrongfulness in our law.[10] In considering the bani mores, the constitutional norms and values should be taken into account. [11]

[19] Now, coming back to the issue at hand, the plaintiff's contention  is that a dependant is indeed entitled to a claim, in terms of the Act as it now reads, for loss of support under the circumstances where the deceased breadwinner was the sole cause of the collision wherein the breadwinner was killed, and where a dependant would not have a common law delictual claim against the estate of the deceased breadwinner. According to the plaintiff's counsel, the plaintiff's contention is based on the grounds that -

a)      Common law delictual liability is not the only requirement because the Act has developed to the extent that losses or claims based on the infringement of other rights are now competent.

b)      The interpretation of s 17 (1) of the Act does not exclude compensation in circumstances where the deceased breadwinner is the cause of his or her own death.

c)      The amendment to the Act by abolishing s 19 (b) (ii) thereof and as confirmed in the Constitutional Court judgment in Da Silva v Road Accident Fund and Another 2014 (5) SA 573 (CC), has altered the position and as such a dependant is entitled to claim for loss of support where the deceased breadwinner is the sole cause of the collision, whether negligently or intentionally. To refuse to compensate a dependant under circumstances where the deceased was the sole cause of his or her own death would violate the principle of equality as enunciated in s 9 of the Constitution.

[20] Obviously, the defendant is disputing the plaintiff's contention and submits that the Fund is not liable for the dependants' claim under the circumstances of this instance. According to the defendant, the Fund is not liable where dependants, as is the case in the present circumstances, would not have a common law delictual claim against the estate of the deceased breadwinner. The defendant contends further that reliance on s 9 of the Constitution by the plaintiff is unfounded and that in accordance with the current legal position all claimants who want to claim compensation in terms of the Act still have to prove common law liability at the side of the insured driver or owner of a motor vehicle, which insured driver or owner can never be the sole negligent deceased breadwinner himself or herself.

[21] A similar question as the one before me was entertained by the court in Mlisane v South African Eagle Insurance Co Ltd 1996 (3) SA 36 (CPD). The crisp issue, which according to that court had not been raised pertinently in any reported decision, was whether the dependants of a breadwinner who has been killed as a result of his own negligence have a claim for loss of support against the Multilateral Motor Vehicle Accidents Fund ('the MMF') in terms of the agreement in place then.

[22] The court in that judgment was in effect dealing with an interlocutory application for the striking out of certain paragraphs of the respondent's (plaintiff's) particulars of claim. The application was heard when a different Act to the one before me was in operation, that is, the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989. The circumstances leading to the institution of that case were also different from the circumstances in the instance.  In that case, the claim arose from a motor vehicle accident where only one motor vehicle was involved. The motor vehicle was driven by the deceased who was fatally injured in the accident. The plaintiff, in that case, sought to hold the appointed agent liable in terms of the agreement for the loss of maintenance and support which she and her three children suffered as a result of the death of the deceased.

[23] The basis advanced on behalf of the appointed agent for its contention that the offending subparagraphs were irrelevant was, in essence, that they pertained exclusively to the negligence of the deceased himself, whereas in terms of the provisions of the agreement, the negligence of the deceased breadwinner himself did not give rise to any action for loss of support.

[24] It was conceded, in that case, on behalf of the plaintiff that the plaintiff would not have a delictual action for loss of support - either in her personal capacity or on behalf of her minor children - against the estate of her deceased breadwinner on the basis that the deceased was killed as a result of his own negligence. The contention was, however, that on a proper interpretation of the relevant articles of the agreement, articles 40 and 48, it was not an absolute prerequisite for a claim for loss of support against the MMF that the driver or the owner should have been liable to the dependants in common law. Article 40 of the agreement was, on behalf of the plaintiff, interpreted to mean that it did not provide, either explicitly or implicitly that the dependant was only entitled to compensation, in terms of the common law. Plaintiff's argument being that the article introduced a new statutory right of action, apart from the existing common-law right, which gives practical effect to the general intention of the Legislature in the enactment of the 1989 Act.

[25] That court accepted the plaintiff's concession but found the contention untenable since, according to the court, such contention was contrary to the well­ established authority that the MMF would be only liable in terms of the agreement if the driver or owner would have been liable in common law. In that regard that court accepted in principle that, in respect of the minor children, it was an essential element of the dependant's action for loss of support that 'the defendant incurs liability because he has acted wrongfully and negligently (or with dolus) towards the deceased and thereby caused the death of the deceased.' The court further rejected the proposition that the deceased breadwinner himself - or his estate - is liable in delict to his own dependants for negligently (or intentionally) causing his own death. The court was also of the  view that  the wording of articles 40 and 48 of the agreement did not lent itself to the interpretation as suggested by the plaintiff and concluded that the right of action created in the Act was against a third party who unlawfully caused the death of a breadwinner and not against the estate of a breadwinner who caused his or her own death.

[26] I have to say that the articles of the agreement which were the subject matter of the court in the Mlisane-jud gment are similar to those that are in issue in the current matter before me. As is the case in this instance, certain provisions of the Act were amended and the plaintiff relied on the interpretation of the amended provisions. The plaintiff in the present matter is, it seems, rehashing the same issues based on the fact that the Act has been recently amended and s 19 (b) (ii) thereof abolished and the fact that the M/isane-jud gment was decided before the new Constitutional dispensation. In this regard the plaintiff's counsel relied heavily on the Constitutional Court judgment in Da Silva above.

[27] It is my view that the position since Mlisane has not changed and remains the same.

[28] As at the judgment in Mlisane there was no direct authority for or against the proposition that dependants have a claim in delict against the estate of their deceased breadwinner who negligently caused his own death. It was, however, accepted in principle that it is an essential element of the dependants' action for loss of support that 'the defendant incurs liability because he has acted wrongfully and negligently (or with dolus) towards the deceased and thereby caused the death of the deceased'. [12]

[29] As the law now stands a claim for loss of support is based on a common law delictual liability. In order for such a claim to succeed the death of the deceased breadwinner must  have been caused wrongfully, negligently or intentionally by another person other than the deceased himself of herself. The wrongful conduct must be construed as relating exclusively to the driver or owner of the motor vehicle, other than the deceased.

[30] Once it is accepted that the dependant's action is based on a wrongful act against the deceased, there is no room for the suggestion that the deceased breadwinner himself or herself - or his or her estate - is liable in delict to his or her own dependants for negligently (or intentionally) causing his or her own death. [13]

[31] As a result, the existing South African law in respect of claims of dependants for loss of support is that such claims are available to dependants against a person who unlawfully killed a breadwinner, who was legally liable to support such dependants. [14]

COMMON LAW DELICTUAL LIABILITY CLAIM AGAINST THE DECEASED

[32] Argument by the plaintiff's counsel in this regard is that the dependant in this instance has, in fact, a common law claim against the deceased's estate for her maintenance and that she would have been entitled to claim maintenance from the deceased breadwinner's estate had it not been for the Act and had the deceased not made provision for the dependant's support in his estate. In this regard, the plaintiff's counsel referred me to the judgment in Verheem v Road Accident Fund 2012 (2) SA 409 (GNP) which she quotes in support of her argument. To the contrary, the defendant's argument that the plaintiff must prove a common law delictual liability which differs from the common law or statutory right to maintenance from the estate of the deceased, makes more sense to me.

[33] I must say from the word go, that I am in alignment with the argument by the defendant's counsel that the Verheem-judgment is no authority for the argument raised by the plaintiff's counsel that since a dependant has a common law claim against the deceased's estate she would as a result be entitled in the circumstances of the current case to claim loss of support; nor is it authority for the proposition that a dependant has a delictual claim for loss of support against the estate of the deceased breadwinner. The Verheem-judgment dealt with the class of a dependant who is entitled to claim for loss of support and in which the dependant's action was extended to the partner of a deceased breadwinner in a heterosexual life partnership and nothing else.

[34] The prerequisite for a claim for loss of support by a dependant remains the same. The plaintiff must prove a common law delictual liability for loss of support and not a common law or statutory right to maintenance from the deceased estate. And in the context of the Act, the jurisdictional factor is whether, but for s 21 of the Act, does the dependant have a delictual claim for loss of support against the deceased and/or his or her estate. And from what has been discussed in this judgment so far,

it is clear that a delictual claim for loss of support can only arise where there is a 'wrongful act committed against the deceased'.

[35] Plaintiff s counsel, submits further that the defendant's counsel based his argument on the ruling in the Brooks-jud gment which according to her, does not deal with the question for decision by this court; and the Mlisane-jud gment above, which according to counsel the judge in that case referred wrongly to the principles set out in Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A). The plaintiff's counsel might be correct to submit that the issue for decision in the Brooks-judgment is distinguishable from the issue in this instance. In that judgment, the court was invited to extend the common law action for damages for loss of support to a person who was claiming loss of support against the Minister of Safety and Security which arose from a shooting incident and the subsequent incarceration of the plaintiff's father. It being alleged that the police officers owed a legal duty to the plaintiff. I, however, do not agree with the interpretation by the plaintiff's counsel, of the decision of the court in the Mlisane-jud gment. The court's decision in the Mlisane-jud gment , which dealt pertinently with the issue before me, is explicit and the principles from that judgment that find application in this instance were confirmed by the Constitutional Court in Amod v Multilateral Motor Vehicle Accident Fund [1998] ZACC 11; 1998 (4) SA 753 (CC) at 7570 - E. Even though the Constitutional Court in the Amod-judgment did not address the issue which this court is grabbling with, but it accepted, though obiter, the principle laid down in Mlisane to the effect that the Fund would only be liable if the breadwinner's death would have rendered the driver liable in common law but for the provisions of the MVA Act. This principle was also accepted in the Supreme Court of Appeal judgment in Brooks v Minister of Safety and Security above where the court in para 6 stated as follows:

"At the outset it is necessary to investigate the nature and scope of the action brought by the appellant. It is undoubtedly a claim by a dependant for loss of support. According to the existing South African law, such a claim is available to a dependant against a person who has unlawfully killed a breadwinner, who was legally liable to support him/her."

[36] The law as it now stands is that a driver of a motor vehicle who is a wrongdoer (negligent driver) has no claim against the Fund when it is a single motor vehicle collision, and if there is no other driver or owner who can be blamed for the collision. Similarly, if he or she dies, his or her dependants do not have a claim against the Fund at common law. The question is, would it be different if two motor vehicles are involved  and the wrongdoer (negligent driver) is the one who has suffered damages? Does he or she have a claim against the Fund? What about his or her dependants should he or she die? Based on the discussion above, the answer is obviously a resounding no.

INTERPRETATION OF SECTION 17 (1) OF THE ACT

[37] The plaintiff concedes in her heads of argument that the Act and its predecessors developed over the years on the basis of delictual liability of the driver or owner but for the provisions of the Act. She however, contends that the Act has not remained stagnant but has developed to the extent that losses or claims based on the infringement of other rights are now competent based on the impact of the more recent constitutional dispensation on all law.

[38] It is submitted on behalf of the plaintiff that there is nothing in the provisions of s 17 of the Act to suggest that the negligent driver and the deceased breadwinner may not be the same person or that the 'loss or damage' can only be common law delictual damages. According to the plaintiff's counsel, the Act permits compensation for "ANY loss" or "ANY damage" suffered as a result of the death of "ANY person" if death is due to the "negligence or other wrongful act" of the driver. As such, there is nothing to be found in the wording of s 17 of the Act to indicate that the negligent driver and the deceased breadwinner may not be the same person or that the "loss or damage" can only be common law delictual damages.

[39] The obligation of the Fund to compensate road accident victims is derived from the following relevant stipulations of the Act, namely

"17.       Liability of Fund and Agents

(1)       The Fund or an agent shall -

(a)       subject to this Act, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of the owner or the driver thereof has been established;

(b)       subject to any regulation made under section 26, in case of a claim for compensation under this section arising from the driving of a motor vehicles 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 in the Republic, if the injury or death is due to the negligence or other wrongful act of the driver or owner of the motor vehicle or of his or her employee in the performance of the employee's duties as employee: Provided that the obligation on the Fund to compensate a third party for non­ pecuniary loss shall be limited to compensation for a serious injury as contemplated in subsection (1A) and shall be paid by way of a lump sum."

"19.     Liability Excluded i n Certain Cases

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

(a)       for which neither the driver nor the owner of the motor vehicle concerned would have been liable but for section 21; or

(b)

"21.      Abolition of certain common law claims

(1)       No claim for compensation in respect of loss or damage resulting from bodily injury to or death of any person caused by or arising from the driving of a motor vehicle shall lie -

(a)       against the owner or driver of a motor vehicle; or

(b)       against the employer of the driver.

(2)       Subsection ( 1) does not apply -

(a)       if the Fund or an agent is unable to pay any compensation; or

(b)       to an action for compensation in respect of loss or damage resulting from emotional shock sustained by a person, other than a third party, when that person witnesses  or observed or was informed of the bodily injury or the death of another person as a result of the driving of a motor vehicle."

[40] It is trite that the law of delict is the underlying common law basis of the Road Accident Fund Act. It is a well-established principle that the effect of s 17 and 19 (a) read with s 21 of the Act is that the Fund is not liable if a wrongdoer would not have been liable at common law. In other words, the Fund is substituted for a common law wrongdoer. The liability of the wrongdoer is suspended and only revives under certain conditions, for example, where the claim for damages is for emotional shock sustained by a victim not actually  involved in the relevant collision. The basic delictual requirements of liability found in common law caused by unlawfulness and fault have not been altered by the Act, that is, conduct, unlawfulness, fault, causality and damage must still be proved. At common law a person cannot claim for loss of support in circumstances where the breadwinner is to blame for his or her inability to support his or her dependants.

[41] It goes without saying that all the cases in the context of the dependant's actions where the Act was developed, including the Constitutional Court case in Da Silva v Road Accident Fund and Another above, on which the plaintiff relies, had to do with the extension of the classes of dependants who are entitled to claim, and had nothing to do with the principle sought to be determined in the current case. I, in fact do not understand the arguments before me to be about the extension of a class of dependants but has to do with where 'fault' in the circumstances of this case lies. As such, the defendant's submission that the current Act is still based on fault, and requires proof that a wrongdoer (other than the deceased breadwinner) drove the motor vehicle negligently and committed a wrongful act against the deceased, is correct. The defendant's further submission that what the claimant in the present matter needs to prove, in order to succeed in her claim, is a common law delictual claim for loss of support, and not a common law or statutory right to maintenance from the deceased's estate, is correct as well.

[42] The prerequisite in the context of the Act is whether the claimant would, but for s 21 of the Act, have a delictual claim for loss of support against the deceased breadwinner and/or his or her estate and where the deceased breadwinner is solely to blame for his own death, a delictual claim for loss of support against the deceased or his or her estate can never arise.

[43] A proper interpretation of s 17 (1) of the Act, in my view, does not lent itself to the interpretation afforded by the plaintiff. As already stated in paragraph [24] of this judgment, the court in M/isane had the opportunity to deal with the interpretation of the provisions of articles 40 of the MMF Act, which provisions are, in a way, similar to s 17 (1) of the Act. The argument raised in Mlisane, which has been raised by the plaintiff in this instance as well, was that on a proper interpretation of articles 40 and 48, it was not an absolute prerequisite for a claim for loss of support against the MMF that the driver or owner should have been liable to the dependant in common law. This is the same reasoning afforded by the plaintiff in this instance in support of her argument that there is nothing in the provisions of s 17 (1) of the Act to suggest that the negligent driver and the deceased breadwinner may not be the same person or that the 'loss or damage' can only be common law delictual damages. I am in alignment with the interpretation in the Mlisane-jud gment that the provisions of article 40 of the MMF agreement did not lent themselves to the interpretation as suggested by the plaintiff in that judgment.  Similarly, based on the authorities cited above in this judgment, in particular the Supreme Court of Appeal judgment in Brooks, the interpretation proffered by the plaintiff, in this instance, in regard to the wording of s 17 (1) of the Act to indicate that the negligent driver and the deceased breadwinner may not be the same person or that the "loss or damage" can only be common law delictual damages, is misplaced.

[44] Consequently, as the dependant's claim is founded on the law of delict, I have to conclude that for a dependant's claim to succeed the negligent driver and the deceased breadwinner may not be the same person and that the 'loss or damage' can only be common law delictual damages.

UNFAIR DISCRIMINATION AND THE AMENDMENT OF THE ACT

[45] The recent amendment of the Act that abolished s 19 (b) (ii) of the Act came into operation on 1 August 2008. It is in terms of this amendment that the plaintiff submits that the Act as it now reads entitles a dependant to claim for loss of support where the deceased breadwinner was the sole cause of the collision. According to the plaintiff, to refuse to compensate the dependant under such circumstances would be to violate the provisions of the equality clause of the Constitution. A further submission is that the plaintiff's claim falls squarely within the ambit of the principles outlined in the Da Silva-judgment and in light of these principles and the abolishment   of s 19 (b) (ii) of the Act, there is no longer any exclusion that was previously there and as such the plaintiff is entitled to claim for loss of support under the current circumstances, so it is argued.

[46] The defendant's submission,  on the other hand, is that the debate about unfair discrimination on the basis of equality as argued by the plaintiff is irrelevant in the context of what the court has to adjudicate in this matter. The converse, applies. For, to allow a minor's claim or to rule that it is not necessary for the minor to prove that an insured driver (other than the deceased breadwinner) was negligent, will be discriminating against all other claimants, who have to prove fault against an insured driver or the owner of a motor vehicle, and also prove common law delictual liability, so it is argued. Such ruling, according to the defendant would in fact violate the principle in s 9 of the Constitution and as such discriminate unfairly against other claimants.

[47] In developing the argument further the defendant's submission is that the abolishment of s 19 (b) (ii) of the Act did not do away with the principle that in a dependant's claim against the Fund no claim exists where a breadwinner was himself exclusively negligent in the causing of his own death.

[48] Section 19 (b) (ii) of the Act read as follows:

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

(b)        Suffered as a result of bodily injury to or death of any person who, at the time of the occurrence which caused the injury or death -

(i)

(ii) is a person referred to in section 18 (1) (b) and a member of the household, or responsible in law for the maintenance, of the driver of the motor vehicle concerned, and was being conveyed in or on the motor vehicle concerned."

[49] The said s 19 (b) (ii) of the Act excluded liability of the Fund to the extent that any person who suffered loss or damage as a result of bodily injury or death of any person who at the time of the occurrence which caused that injury or death was a person who was a member of the household or responsible in law for the maintenance of the driver of the motor vehicle concerned, and was being conveyed in or on the motor vehicle concerned.

[50] The exclusion was abolished in terms of the Constitutional Court judgment in Da Silva v Road Accident Fund and Another 2014 (5) SA 573 (CC) at 576, when that court made a ruling that s 19 (b) (ii) of the Act was unconstitutional mainly because its provisions differentiated between categories of people, namely those who stand in a close familial relationship with the driver and those who do not, and as such, violated Da Silva's right to equality.  The court consequently, declared the section to be inconsistent with the Constitution and invalid, hence its removal from the statute.

[51] I am in agreement with the defendant's submission that reliance by the plaintiff on the Da Silva-jud gment and the amendment it brought to the Act, is misplaced. The abolishment of s 19 (b) (ii) of the Act or its declaration of invalidity involved the differentiation between classes of dependants who were entitled to claim for loss of support against the Fund and had nothing to do with the substantive issue of whether the element of fault is a requirement where the deceased breadwinner is negligently (or intentionally) liable for his or her own death. The differentiation in the circumstances of that judgment was  brought about by the exclusion of claims of the family members of the deceased breadwinner.

[52] Discrimination, as has been said, is any differentiation on a prohibited ground that imposes a burden or withholds an advantage. In the circumstances of the current matter, I do not see how it can be said that there is differentiation between the dependants who are to claim for loss of support against the Fund in circumstances where the deceased breadwinner was killed as a result of his or her own conduct, whether negligently or intentionally. This is so because, in all cases where a dependant is to claim for loss of support in terms of the Act, it is required that such claim be based on common law delict. It means that each dependant must prove that the collision was caused by the negligent conduct (driving of a motor vehicle) of a third person other than the deceased breadwinner. And as argued by the defendant, the converse would result in the discrimination of other dependants - where other dependants would have to prove fault in terms of the common law delictual liability whilst others, as in the circumstances of the present case, would not be expected to do so.

[53] This is the law as enunciated in the Mlisane-jud gement above. Nothing since then has changed, and I have not been made aware of any such changes, if any. The amendment of the Act in abolishing s 19 (b) (ii) thereof has brought no changes as such to the law as it is known.

[54] The plaintiff's counsel during argument posed an analogy to the defendant's counsel along these lines:

"What if Xolisile (the minor child) was a passenger in the deceased, her father's motor vehicle, and she sustained injuries? Would she have a claim for her injuries, but not for her loss of support?"

Plaintiff's counsel contends that in terms of the analogy, since the Act has been amended, there is no longer any exclusion. That is, the Act should not differentiate between a dependant in the circumstances of the analogy and a dependant who is claiming loss of support under the circumstances in this instance.

[55] The defendant's submission that the plaintiff would in the circumstances of the analogy made by the plaintiff's counsel, the plaintiff would, since the abolishment of s 19 (b) (ii) of the Act be entitled to claim for her personal injuries from the Fund because at common law she would have a delictual claim for damages against her negligent deceased father, is correct.

[56] There is a basic difference between the remedy for loss of support and that given to a dependant who suffered bodily injury or sustained damage to her property as a result of the wrongful or negligent (or intentional) conduct of the deceased breadwinner. The difference is that, in the case for loss of support, the plaintiff derives his or her right from the fact that he or she suffered loss by the death of the deceased whilst in the latter case, the action lies for the wrongful act committed in respect of the plaintiff's person or property and with culpa (or dolus) against the plaintiff.[15]

[57] The difference is succinctly defined in the Evins-judgment above as follows:

"In the judgment the causes of action underlying the two claims are analysed. In the case of the claim for bodily injury, the 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, i.e. loss to the plaintiffs patrimony, caused by the bodily injury. In the case of an action for loss of support, the basic ingredients of the plaintiffs cause of action are (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. It is evident that the facta probanda in a bodily injury claim differ substantially from the facta probanda in a claim for loss of support."

[58] Before the abolishment of s 19 (b) (ii) of the Act, the dependant would not be able to claim for personal injuries against the Fund for he or she would have been regarded as a member of the household of the driver of the motor vehicle, but, as the Act presently reads the dependant is entitled to claim. But, the dependant still cannot claim for loss of support.

CONCLUSION

[59] Under the circumstances I have to decide in favour of the defendant. The point in Jimine succeeds in favour of the defendant and costs are costs in the main action.

_______________________________

E. M. KUBUSHI

JUDGE OF THE HIGH COURT

APPEARANCES

HEARD ON THE                                                                           : 01MARCH 2014

DATE OF JUDGMENT                                                                  :  26 NOVEMBER 2011

PLAINTIFF' S COUNSEL                                                             : ADV. R FERGUSSON

PLAINTIFF' S AnORNEY                                                             :  MACHAKA INC.

DEFENDANT' S COUNSEL                                                        :  ADV. M G MOLAi

DEPENDANT' S AnORNEY                                                         : RAMBEVHA MOROBANE ATTORNEYS

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