Jacobs v Road Accident Fund

• Jurisdiction: South Africa
• Court: South Eastern Cape Local Division
• Judge: Grogan AJ
• Judgment Date: 19 October 2006
• Citation: 2010 (3) SA 263 (SE)
• Hearing Date: 11 October 2006
• Docket Number: 529/04
• Counsel: A Hofmeyer for the plaintiff. A Frost for the defendant.

Grogan AJ:

[1] The plaintiff in this matter has instituted action against the defendant B in terms of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 for compensation for losses he alleges he incurred as a result of an accident between a minibus taxi and a motorcycle on 4 March 1999.

[2] It is common cause that the accident was caused by the negligence of one Pumzile Sopele (the insured party), and that the plaintiff's son, C Mr David Jacobs junior (to whom I refer hereafter as 'the deceased'), then aged 22 years, was killed in the collision.

[3] The plaintiff, now aged 61 years, alleges that he was unemployed and unfit to work at the time of the collision, and that, at the time of his D death, his son, who was then living at home, contributed R600 per month from his income towards the maintenance of the plaintiff. All this is common cause. In dispute is whether the defendant is liable to compensate the plaintiff for the losses he claims to have sustained as a result of the death of his son. E

[4] According to the rule 37 minute the parties have agreed that the sole issues to be determined at this stage are: (i) whether the deceased had a legal duty to support the plaintiff; (ii) whether the plaintiff was so indigent that the deceased became liable to support him; and (iii) whether, in future, the deceased would have had a legal duty to continue maintenance. F

[5] If the answer to any of these questions is in the negative, that will be the end of the matter. If the answers are in the affirmative, the parties have agreed, with the consent of the court, that the quantum of damages will stand over for determination at a later stage. G

[6] Whether the deceased was under a duty to maintain his father at the time of his death is critical to the plaintiff's case because if such duty cannot be established, it cannot be imputed to the defendant. H

[7] In spite of the phrasing of the pre-trial minute, Mr Frost, who appeared for the defendant, conceded that a child's duty to support his or her parents is recognised in our law. The numerous authorities supporting this principle are summarised and discussed in Oosthuizen v Stanley 1938 AD 322. According to these authorities a child's duty to support a parent arises if both parents are indigent and are unable to I support themselves, and if the child is able to provide support: see at 327 - 328. To succeed the plaintiff had to prove that each of these requirements was satisfied.

[8] At issue here is whether at the time of his death the deceased was under a legal duty to support the plaintiff. J

Grogan AJ

A [9] At the commencement of the proceedings I was informed that the plaintiff was unable to testify because of his medical condition. The only witness for the plaintiff was his wife, Mrs Ria Jacobs, aged 59 years. The defendant led no evidence.

[10] The picture that emerged from Mrs Jacobs' testimony was bleak. B She has been married to the plaintiff in community of property for about 40 years. The couple has three surviving children: a son who disappeared without trace some seven years ago, and two daughters, one married and the other divorced. These children are all now in their thirties, and neither daughter was able to contribute towards her father's maintenance C at the time of the accident, or is able to do so at present. According to Mrs Jacobs the deceased, whom she described as a 'laatlammetjie', did well at school and qualified as a toolmaker some time before his death.

[11] The plaintiff has been down on his luck for several years. He was...