Mlate v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Maumela J
• Judgment Date: 18 February 2020
• Docket Number: 28602/2017
• Court: North Gauteng High Court, Pretoria
• Hearing Date: 18 February 2020
• Citation: 2020 JDR 0583 (GP)

Maumela J:

1.

This matter came before court in the opposed motion roll. The plaintiff, Lethabo Maria Mlate, a 36 year-old female instituted action against the Road Accident Fund. She advanced a claim based on loss of support. The claim is based on two legs. The First claim she lodged is in her personal capacity and the second is on behalf of her minor children. The claims are constituted as follows:

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The claim in her personal capacity:

1.1.

Past Loss of support at R 200 000-00.

1.2.

Future loss of support at R 500 000-00.

The total claim in respect of the Plaintiff is: R 700 000-00.

2.

The Second Claim Plaintiff lodged is on behalf of her minor children Keamogetswe Donald Mlate, a male who was born on the 2nd of June 2001,and Thabiso Ferdinand Mlate, a male who was born on the 16th of May 2006. It comprises of:

2.1.

Past Loss of support at R 300 000-00 and

2.2.

Future loss of support at R 500 000-00.

The total claim in respect of Plaintiff's minor children is: R 800 000-00. This action is defended.

2.3.

The Plaintiff prays for the Defendant to pay the cost of the suit.

BACKGROUND.

3.

On the 23rd of March 2016 Plaintiff's husband, David Keiso Tau, (the deceased),was a passenger in a white Nissan Hardbody with registration numbers YLT 062 GP. This vehicle collided with a white Golf with registration numbers DK 75 YS GP, (the insured vehicle). The collision took place at the intersection of the Old Johannesburg Road (R101), and Escourt Road Hennopspark.

4.

The Defendant does not dispute that this accident took place and that it involved the vehicles mentioned above. Neither does it dispute that the Deceased was a passenger in the insured vehicle, and that he succumbed to injuries he sustained in the collision. The plaintiff alleges that the collision was solely as a result of negligence on the part of the driver of the insured vehicle.

5.

Plaintiff, who is 36 years of age, contends that she was married to David Keiso Tau, who was 30 years of age at the time he died. She stated that her marriage to the deceased

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was in accordance with Customary Law. She submits that she and her two children were dependent on the deceased. She alleges that as a direct result of the collision, the deceased sustained bodily injuries and he succumbed to the said injuries. She submits that the deceased's demise deprived her and her minor children of maintenance and support which the deceased used to provide for them during his lifetime.

6.

While the Defendant concedes that the accident was a result of negligence on the part of the 'insured driver' it disputes liability to the plaintiff. It is not disputed that the accident happened at the place and time indicated by the plaintiff. Neither is it disputed that the deceased succumbed to injuries sustained in that accident. It is not disputed that the insured driver was negligent. What is disputed is the defendant's liability. The Defendant disputes the claim for loss of support for the Plaintiff and her children.

7.

The Defendant disputes the validity of the customary marriage alleged by the plaintiff. It contends that there was no valid marriage between the plaintiff and the deceased. The Defendant contends that the Plaintiff and the Deceased did not fulfil all the requirements for a valid customary marriage as determined by the provisions of the Recognition of Customary Marriages Act. [1]

8.

The Plaintiff submitted that the deceased is not the biological father of her children. However, she submits that during the deceased's lifetime, the children stayed with her and the deceased in the same house. She contends that the deceased would support her and the children. She contends that the deceased would have been legally obligated to maintain her two minor children and for that reason, the children are entitled to support from the estate of the

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deceased.

9.

The Defendant disputes that a valid customary marriage came into existence as between the Deceased and the Plaintiff. The Plaintiff substantiates her contention that she was married to the deceased in accordance with Customary Law. To that end, she submitted the following:

11.1.

Lobola letters supporting the existence of the marriage,

11.2.

An ID copy,

11.3.

An affidavit in terms of section 19 (f).

11.4.

Birth certificates of the children.

10.

The plaintiff attached Exhibits "A", "B" and "C". These are documents that depict 'lobola negotiations. In them, the dates, the place and that attendants at the occasion of the lobola negotiations are reflected. The Exhibits attached are numbered "A", "B" and "C. The Plaintiff contends that these exhibits constitute proof of the fact that members of her family, together with those of the family of the Deceased met on the 5th of February 2015, the 7th of March 2015 and the 17th of September 2015. She contends that the exhibits constitute proof of the fact that discussions and negotiations concerning lobola were held by individuals whose names stand listed in the exhibits.

THE ISSUES.

11.

The court has to determine whether a valid customary marriage came into existence as between the Deceased and the Plaintiff or not. In the event where the court finds that a valid customary marriage came into existence as between the Deceased and the Plaintiff, it has to determine whether a legal duty to maintain the Plaintiff's minor children came to exist as against the deceased and indeed, his deceased estate.

12.

In making that determination, the court has to determine the

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following issues:

14.1.

The validity of the customary marriage between the plaintiff and the deceased.

14.2.

Whether the deceased was under a legal and an enforceable duty to support the plaintiff and her children or not and

14.3.

Whether the plaintiff has locus standi to institute a claim for loss of support against the defendant as a result of the death of the deceased.

13.

In section 1 (iv) of the Recognition of Customary Marriages Act: (Act No. 120 of 1998):, the following definition of "lobolo" is provided:

S1(iv): "lobolo" means the property in cash or in kind, whether known as lobolo, bogadi, bohali, xuma; lumalo, thaka, khazi, magadi; amabheka; or by any other name, which a prospective husband or the head of his family undertakes to give to the head of the prospective wife's family in consideration of a customary marriage."

14.

The Plaintiff proved that lobola negotiations were held between members of her family and those of the Deceased. She advanced exhibits "A", "B" and "C" to substantiate her contention that lobola negotiations were successfully held. The question arises whether the requirements of a valid customary marriage were fulfilled. In section 3 of the Recognition of Customary Marriages Act [2] requirements for a valid customary marriage to come into existence stand prescribed. In that regard, this section provides the following:

"Requirements for validity of customary marriages:

3. (1) For a customary marriage entered into after the commencement of this Act to be valid-

(a).

The prospective spouses-

(i)

must both be above the age of 18 years; and

(ii)

must both consent to be married to each other under customary law: and

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(b).

the marriage must be negotiated and entered into or celebrated in accordance with customary law."

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