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IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU – NATAL, DURBAN

CASE:1993/06

In the matter between:

NOMUSA NOKUTHULA MBONAMBE ….................................................................Plaintiff

and

ROAD ACCIDENT FUND …......................................................................................Defendant

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JUDGMENT

Delivered: 04 November 2010

NTSHANGASE, J:

[1] The plaintiff claims an amount of R97 750.00 as damages for past and future loss of support and funeral expenses allegedly suffered by reason of death of her 35 year old son, Mduduzi Aaron Mbonombi [“the deceased”] as a result of a collision with a motor vehicle driven by VS Radebe (“the insured driver”). The deceased was a pedestrian. The 16^th of March 2001 as the date of collision according to the particulars of claim, though admitted by the defendant, appears to be incorrect as the “claim for compensation and medical report”, the death certificate and the “road traffic collision report” reflect the collision as having occurred on 6 March 2001. He died on 15 March 2001. It was his medico-legal post mortem examination that was performed on 16 March 2001.

[2] At the conference convened in terms of Rule 37 (8) of the Uniform Rules of Court the issues of liability and quantum were, by order, separated. It was recorded that the issue of liability is to include the determination of whether or not the plaintiff “is entitled to support on the basis of her indigence.” The matter before me proceeds solely on the issue of liability.

[3] During the course of trial the negligence of the insured driver as the sole cause of the collision was conceded. The plaintiff’s evidence was adduced to establish that she had suffered damages.

[4] The evidence of the plaintiff is that she derived maintenance from the deceased while he lived. She testified that he remitted money on every 15^th day of the month. She said he remitted R400 every month. She also said, under cross-examination, he remitted R500.00. This support ceased when the deceased died on 15 March 2001. To the extent that she had derived support from the deceased, her personal circumstances were impoverished by reason of his death. She was left without any source of assistance to procure the basic necessities of life.

[5] It is common cause that with effect from September 2002 she became a recipient of a government pension. She was not able to remember how much she received as a pension. She could only say she was grateful that it secured her mealie meal. She accepted that her present pension may be R1080.00 per month. She was unable to remember how much it is.

[6] Notwithstanding receipt of the government pension, she has still gone begging from neighbours, according to her testimony. She also stated that she, from sheer necessity, has to borrow from neighbours when her pension money gets exhausted, as facts which bespeak the inadequacy of support derived from the pension resource.

[7] At the time of death of the deceased she did not work; nor does she do so now. She said she last worked “very long ago”. She appeared clearly unfit for work when seen at the hearing of this matter. She was observed to be of frail gait as she proceeded to deposit herself in the witness box. She said she was born in 1942. Accordingly she would be approximately 68 years of age. She appeared to me to be of such age. She was approximately 60 years of age at the time of death of the deceased. She testified of her general ill-health and particularly singled out diabetes and high blood pressure as her disabling ailments.

[8] She testified that she earlier lived in a mud house at Malukazi. She relocated to her present place of abode at Umgababa where she still lives in a mud house which is falling apart. She and the children are drenched within it when it rains. Her previous residence at Malukazi was taken over for no consideration by someone who had no place to live and when by reason of ill-health she desired to move to live in a rural area. She denied that she owned immovable property at Isipingo when it was suggested under cross-examination that she did own property at Isipingo.

[9] There was no meaningful challenge to her evidence that she, from sheer necessity, has had to beg and borrow from neighbours notwithstanding receipt of the government pension; nor was there any suggestion that she has done so by reason of prodigal use of her pension which would otherwise be adequate to meet her basic needs. There is also no basis upon which her testimony as to her personal circumstances can be rejected. Her evidence, in my view, does establish a state of indigence which set in when the deceased died on 15 March 2001. On the evidence before me, I find that the receipt of the government pension with effect from September 2002 has not relieved her state of indigence.

[10] While her state of indigence has defied the aid derived from the government pension, her inability to provide herself with the basic necessities of life has been exacerbated by the burden cast on her of having to maintain two grandchildren aged 10 and 7 years respectively. They are the children of her daughter, Nana. They were born out of wedlock. Their father died recently according to her evidence. She could not name the month but did state that he died earlier this year. He maintained the two children up to the time of his death in 2010. Nana does not work. She had done casual work before. Such work is no longer available. She has tried, without success, to find employment.

[11] Although the plaintiff, in her evidence, said “things were better” when the grandchildren’s father lived and maintained the children, there is no evidence that she herself derived any benefit from what was essentially maintenance for the children only. Her description of her circumstances as “better” would denote her position without the added burden of supporting the grandchildren after the death of their father.

[12] In regard to the deceased’s obligation to support the plaintiff and the plaintiff’s own obligation to support her grandchildren the following passage from the judgment of Curlewis, J.P. in Ford v Allen and Others¹ is apposite:

“Our law is clear with regard to the obligation of parents to support their children and the reciprocal obligation of children to support their parents, and this mutual obligation extends to grandparents and grandchildren both on the mother’s and father’s side; the measure of support depending on the necessity for such support and the ability to render such support and maintenance when required.”

The grandparents’ obligation is apparent from the following passage in Barnard, N.O. v Miller²:

“That a grandparent can in appropriate circumstances be liable for the maintenance of grandchildren, and that a parent’s estate has also been held to be liable for the maintenance of the children of the deceased parent can be taken as by now well established law (see authorities’ collected in In re Estate Visser, 1948 (3) SA 1129 (C))”.

[13] I am satisfied that it is beyond the plaintiff’s means to support herself. She is indigent. In this matter the grandparent’s legal obligation to support the two grandchildren and, as a factor which would further strain her ability to provide herself with the basic necessities of life is, properly, not in issue; nor can it be properly be an issue in this matter that it would exacerbate her state of indigence. On such basis she was and still is entitled to support. The deceased was under legal duty to support her.

[14] In the result I make the following order:

1. The defendant is liable to compensate the plaintiff for all proven or agreed damages.

2. The defendant shall pay the plaintiff’s costs of action up to and including 11 October 2010 as between party and party.

3. The matter is adjourned sine die for determination on the issue of the plaintiff’s quantum of damages.

APPEARANCES:

FOR THE APPLICANT: Adv RV Sarjoo

Instructed by,

J Reinchlin Ramsamy, Durban.

FOR THE RESPONDENT: Adv TA Tembe

Instructed by,

Ngubane & Partners Inc. Durban.

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