JT v Road Accident Fund

• Jurisdiction: South Africa
• Judgment Date: 26 September 2014
• Citation: 2015 (1) SA 609 (GJ)

JT v Road Accident Fund
2015 (1) SA 609 (GJ)

2015 (1) SA p609

Citation	2015 (1) SA 609 (GJ)
Case No	2013/22829
Court	Gauteng Local Division, Johannesburg
Judge	Sutherland J
Heard	August 26, 2014
Judgment	September 26, 2014
Counsel	R Maxwell for the plaintiff.; MM Zondi for the defendant.

Flynote : Sleutelwoorde D

Delict — Specific forms — Loss of support — Dependant's action — Extension — E Adopted child — Action for loss of support following death of natural father — Grandmother adopting child but father continuing support — By assuming such obligation, conferring enforceable right in respect of duty of support.

Headnote : Kopnota

The plaintiff sued the Road Accident Fund (the Fund) for damages for the loss F of support to her teenage granddaughter following the death of her natural father in a motor vehicle accident. The daughter had been adopted by the grandmother when about 7 years old but the father had voluntarily continued to support her. The Fund admitted that it was liable for damages suffered by any person resulting from his death but contended that the deceased's legal obligation to support his child had been extinguished when G the adoption had taken place; consequently there was no liability on the Fund to compensate such loss. In issue therefore was whether the daughter had an enforceable right against the deceased.

Held: It would be invidious to rule that a natural parent had no duty to support his daughter when he had voluntarily assumed that obligation. The undertaking had given the plaintiff a reasonable expectation that his H maintenance contributions would continue. A duty of support between de facto family members was one of those areas in which the law gave expression to the moral views of society, and the common law ought to be developed to embrace this norm. Accordingly it was declared that by assuming an obligation to support his daughter he had conferred on her an enforceable right in respect of a duty of support. (Paragraphs [29] – [31] at 617B – F.) I

Cases Considered

Annotations

Case law

Centre for Child Law v Minister of Social Development 2014 (1) SA 468 (GNP): discussed J

2015 (1) SA p610

Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) (2003 (11) BCLR 1220): dictum in para [17] applied A

Fosi v Road Accident Fund and Another 2008 (3) SA 560 (C): referred to

Jacobs v Road Accident Fund 2010 (3) SA 263 (SE): dictum in para [22] applied

MB v NB 2010 (3) SA 220 (GSJ): considered

Metiso v Padongelukfonds 2001 (3) SA 1142 (T): considered B

Meyer v Road Accident Fund (TPD case No 2004/29950): referred to

Oosthuizen v Stanley 1938 AD 322: referred to

Paixao and Another v Road Accident Fund 2012 (6) SA 377 (SCA): considered

Verheem v Road Accident Fund 2012 (2) SA 409 (GNP): considered.

Case Information

R Maxwell for the plaintiff. C

MM Zondi for the defendant.

An action for loss of support to adopted child following the death of the natural father.

Order D

1.

It is declared that the deceased, DT, by assuming an obligation to support VT, conferred on her an enforceable right in respect of a duty of support.

2.

The defendant is liable to compensate the plaintiff in respect of the E loss of support suffered by the death of DT and shall pay to the plaintiff the sum of damages agreed between the parties.

3.

The costs of the trial shall be borne by the defendant.

4.

In the event that the parties require an amplified order to address other aspects of the case upon which agreement has been reached, an approach may be made to me to do so.

Judgment

Sutherland J: F

Introduction

[1] A single controversy arises from the circumstances described, all other issues having been settled and agreed between the parties:

1.1

G The plaintiff is the biological grandmother and, since 13 March 2009, the adoptive mother of VT, a minor, at present 14 years old.

1.2

VT's biological father, and biological son of the plaintiff, is DT, who was killed in a motor car accident on 30 January 2012.

1.3

The defendant has admitted that it is liable for damages suffered H by any person resulting from the death of DT, as contemplated by s 17 of the Road Accident Fund Act 56 of 1996 (RAF Act).

1.4

The plaintiff has claimed damages for loss of support from DT for VT.

1.5

It is common cause that DT supported VT.

1.6

I However, the defendant contends that because DT, albeit that he was the biological father of VT and would have, ordinarily, had a duty of support towards her, that duty was extinguished when the adoption took place.

1.7

Accordingly, the defendant contends that it is not liable to compensate VT for the loss of the support which DT, de facto, J contributed towards her maintenance.

2015 (1) SA p611

Sutherland J

[2] The sole question for decision is whether the defendant is liable to A compensate VT for the loss of the support contributed by DT and that turns on whether she had an enforceable right against DT.

The relevant facts

[3] The material evidence was given by the plaintiff. B

[4] VT was born on 11 June 2002. Her parents were not married. During the early years of her life, she and her biological mother lived together, at times on their own, and at other times with the grandparents, the plaintiff and her husband. DT was living away from home, a circumstance determined by work commitments. He visited home as opportunities C arose. VT's biological mother drifted away and sought a life independent of the burdens of child-rearing. Subject to his absences away for work, DT remained involved in VT's life. VT's de facto home became that of the grandparents and her day-to-day caregivers were her grandparents.

[5] In pursuit of the best interests of the child, a consensus was reached D that VT ought to have the stability of a permanent home with the grandparents. It was in that context, after some time, that it was decided that the de facto situation be formalised by an adoption. The children's court, Roodepoort, eventually issued an order of adoption on 13 March 2009. VT was then almost 7 years old. Her biological mother has had no further communication with the family. E

[6] DT remained intimately in touch with VT at all times. In 2006 he joined his father in business, and thus no longer lived at a material distance from VT, whereupon he then established his personal home at the place of business of his father, not far distant from the home of the F grandparents. According to the plaintiff, throughout VT's life DT had a father – daughter relationship with her and was involved in her life. He contributed financially throughout her life to her upkeep, both before and after the adoption.

[7] The factual matrix presented in this case appears to be novel. On G behalf of the defendant it is contended that our law does not recognise a duty of support under these circumstances. Whether or not that is correct and, if so, whether the common law must be developed to provide for such a right, is the issue before this court.

The law H

[8] Adoption is regulated by ch 15 of the Children's Act 38 of 2005. What concerns the present controversy is the invariable consequences of an adoption on the duty of support by a 'former' parent. Section 242 addresses the effects of an adoption order. It provides that:

'(1) Except when provided otherwise in the order or in a post-adoption I agreement...