Ferguson v Santam Insurance Ltd

• Jurisdiction: South Africa
• Judge: Vos J
• Judgment Date: 14 May 1984
• Citation: 1985 (1) SA 207 (C)
• Hearing Date: 24 November 1983
• Court: Cape Provincial Division

Vos J:

Plaintiff - the widow of the deceased - claims damages for loss of support. The defence is that the deceased earned his income from an unlicensed panelbeating business, ie an illegal business, and therefore, in accordance with the decisions Dhlamini en 'n Ander v Protea Assurance Co Ltd 1974 (4) SA 906 (A); Booysen v Shield Insurance Ltd 1980 (3) SA 1211 (SE) B and Mba v Southern Insurance Association Ltd 1981 (1) SA 122 (Tk), the widow has no claim in law.

In the Dhlamini case the plaintiff sued for loss of income, in other words it was not the dependant's action. In the Booysen and Mba cases the principle of the Dhlamini case was extended to a widow. However, in Fortuin v Commercial Union Co of SA Ltd C 1983 (2) SA 444 (C) COMRIE AJ held that he was not bound by the Booysen and Mba decisions. I am in respectful agreement with COMRIE AJ, and if I understand his reasoning correctly he seems to have decided that a widow could recover despite the illegality of her husband's business. In my view the Dhlamini D decision is not binding authority for non-suiting a widow in a dependants' action (see eg at 912G).

For the reasons which follow I respectfully differ from the decisions in Booysen and Mba. In my opinion there are various forms of illegality, eg:

(1)

criminal conduct which is also turpis, eg living by robbing people;

(2)

E criminal conduct which is not turpis, eg the sale of a controlled product such as lucerne seed to a non-authorised buyer;

(3)

conduct which is not criminal but merely illegal in the sense of it being void, eg certain betting transactions.

I am of the opinion that to say that the deceased person was F carrying on an illegal business is to beg the question. If his conduct or business were such that he could lawfully recover the price of the goods sold or services rendered, I think his conduct cannot be classified as illegal for present purposes. But if his conduct or business were such that he could not in law recover, eg living by robbing people, it could be called illegal. This, to my mind, is an important test. Compare Pottie G v Kotze 1954 (3) SA 719 (A) and Swart v Smuts 1971 (1) SA 819 (A) at 829C. In my view the Roman-Dutch law has advanced far beyond the principle that the sins of the fathers are visited upon the next generations. Whereas a plaintiff who personally has lost "illegal" income may be frowned upon by the Court and H non-suited on that account, non constat...