Minister of Police, Transkei v Xatula

• Jurisdiction: South Africa
• Judge: Beck CJ, Goldin JA and Dumbutshena JA
• Judgment Date: 26 August 1993
• Docket Number: 2367/88
• Court: Transkei Appellate Division
• Hearing Date: 26 August 1993
• Citation: 1994 (2) SA 680 (TkA)

Goldin JA:

Appellant applied on notice of motion for an order that in terms of s 33(v) of the Practice and Procedure Act (Tk) the following issue, as well as another with which I will deal later, should be decided at the commencement of a trial involving a claim by dependants for compensation:

'Whether the plaintiff has a claim in law against the defendant in respect B of any loss of maintenance and support suffered by herself and the minor child, Ayanda, where such maintenance and support was being furnished or would have been furnished, but for the deceased's death, from income of the deceased derived from activities which are illegal and/or contrary to public policy.'

C The Court a quo decided in favour of plaintiff (respondent) [*] and the defendant appeals against this decision.

The facts which are common cause are that Leoneda Ncediseni Xatula (the deceased) was shot and killed on 10 July 1988 by a member of the Transkeian Police Force in the District of Bizana. In his lifetime deceased maintained and supported his mother (respondent) and a minor D child, Ayanda, who was his natural daughter. At the time of his death his sole source of income was derived from his occupation as a senior officer in Transkei of uMkhonto we Sizwe (MK), the military wing of the African National Congress (ANC). At the time of his death the ANC was banned and membership thereof was prohibited and severe criminal penalties were E provided by s 4 of the Public Security Act 30 of 1977 (Tk). There also existed a state of emergency in Transkei in terms of Special Notice 29 of 30 June 1988. These prohibitions terminated and the ANC was unbanned in 1990. It can be accepted that the ANC was a prohibited organisation whose object was to abolish the prevailing practice and system of apartheid. F

In his defence to respondent's claim (as plaintiff) for loss of support by herself as mother of deceased and as grandmother of his daughter, appellant (as defendant) contended that they were not entitled to compensation as ruled in several decisions in South Africa and in the Supreme Court of Transkei on the ground that at the time of his death he derived his income by engaging in activities which were illegal and or G contrary to public policy.

In the case of Dhlamini en 'n Ander v Protea Assurance Co Ltd 1974 (4) SA 906 (A) it was held that an unlicensed hawker who was injured in an accident could not recover damages for loss of income from illegal H hawking. Rumpff CJ held that damages calculated according to the amount of income obtained from an activity which is immoral or criminal will not be awarded because it would be contrary to public policy to do so.

The Court left open the question whether the same rule applies to an action for loss of support (at 912G). Addleson J answered that question in the affirmative in the case of Booysen v Shield Insurance Co Ltd 1980 (3) SA 1211 (SE) I at 1211. He held that a claim for damages for loss of support by a defendant does not differ in principle from a claim for damages by an injured person himself. He said (at 1217F) that J

Goldin JA

A '. . . the overriding consideration in our law where a claim for compensation is based on the common law remedy granted by the lex Aquilia must be one of public policy'.

He went on to say that it was contrary to public policy to compensate for loss of support provided by the deceased during his lifetime from illegal B activities. He emphasised his approach by saying (at 1217H):

'. . . (I)t is difficult to conceive that our Courts would allow the husband or child of a deceased prostitute to recover compensation for loss of support based on the claim that during her lifetime she had maintained them - and would have continued to maintain them - on the proceeds of her prostitution.'

C In Transkei Rose Innes J followed this decision by Addleson J in the case of Mba v Southern Insurance Association Ltd 1981 (1) SA 122 (Tk). He said (at 124D-E):

'This question has been answered in Booysen v Shield Insurance Co Ltd 1980 (3) SA 1211 (SE) in which the principles laid down in Dhlamini en 'n Ander D v Protea Assurance Co Ltd 1974 (4) SA 906 (A) were applied and extended to dependants' claims for loss of support. The law propounded in these decisions is that in a delictual claim for damages for loss of earnings due to injury, or for a dependant's loss of support and maintenance resulting from the death of a breadwinner, damages or compensation are not recoverable in respect of loss of earnings or loss of support and maintenance which were derived from an activity which was illegal. An E illegal activity in this context refers to an activity which is prohibited by statute, or is criminal either at common law or by statute, or which is categorised as contra bonos mores by common law.'

In Santam Insurance Ltd v Ferguson 1985 (4) SA 843 (A) the Appeal Court overruled the decision in Ferguson v Santam Insurance Ltd 1985 (1) SA 207 (C). A widow claimed compensation for loss of support by her husband who F was a panelbeater but carried on a panelbeating business without a license under circumstances where he could not get a license. The claim for damages was dismissed because the business was unlawful and the income he acquired thereby was not lawful income. At 851F Joubert JA quoted with G approval the following passage from the judgment of Addleson J in Booysen's case supra:

'That degree of "illegality" seems to me to hit the dependant as well as the injured person and to preclude the dependant from relying on the illegal income as a basis for compensation.'

It is necessary to consider the nature and scope of the action by H dependants against a person who has unlawfully killed the breadwinner who was legally liable to support them. The action of dependants is not Aquilian in origin but is derived from old Germanic customary law (see Joubert (ed) The Law of South Africa vol 7 para 81 and Legal Insurance Co Ltd v Botes 1963 (1) SA 608 (A) at 614A-G). Dependants are compensated for their own loss of support arising from liability by the person responsible I for the death of the deceased to compensate them. In the case of Jameson's Minors v Central South African Railways 1908 TS 575 Innes CJ said (at 583-4):

'Our law . . . gives to those dependent (on the deceased) a direct claim enforceable in their own names, against the wrongdoer. This is a right not derived from the deceased man or his estate, but independently...