Pike v Minister of Defence

• Jurisdiction: South Africa
• Judge: White J
• Judgment Date: 28 September 1995
• Docket Number: 237/93
• Hearing Date: 31 August 1995
• Counsel: S V Notshe for the plaintiff. S C Rorke for the defendant.
• Court: Ciskei Supreme Court

White J:

At the commencement of the trial the Court, at the request of counsel for both parties, granted the defendant leave to bring an exception to the plaintiff's I particulars of claim on the grounds that it lacks the necessary averments to sustain an action.

The plaintiff is a businessman and the father of Pakamisa Pike, the deceased, who was wrongfully killed by members of the Ciskei Defence Force. The plaintiff claims R234 000 damages from the defendant arising from the death of the deceased. The basis for the claim is set out in paras 6 and 7 of the particulars of claim, which read as follows: J

White J

'6. 6.1

A In and as a direct result of the death of the deceased plaintiff has suffered damages in the sum of R234 000.

6.2

Plaintiff was at all times material hereto, and still is, the owner of a general dealership in Dikidikana Location.

6.3

During his lifetime the deceased was employed by plaintiff in the said dealership and was not paid a salary.

6.4

B As a result of his arthritic condition plaintiff is unable to manage and operate the dealership himself and has, in consequence of the death of the deceased, been obliged to employ the services of someone else to do so and to whom he pays an amount of R1 500 per month.

6.5

C Plaintiff reasonably anticipates running the dealership for a further 13 years and deriving the income from his dealership for those number of years.

6.6

Accordingly, plaintiff has suffered damages in the sum of R1 500 per month for 13 years.

7.

Alternatively to para 6 above:

7.1

D Plaintiff was at all material times hereto, and still is, the owner of a general dealership in Dikidikana Location.

7.2

As a result of his arthritic condition plaintiff was at all material times hereto, and still is, unable to manage and operate the dealership himself and had to E obtain the services and assistance of his son, the deceased.

7.3

The deceased, a son of plaintiff, had a legal duty to render such services and assistance and in fact did render such services and assistance.

7.4

Plaintiff has, in consequence of the death of the deceased been deprived of the services and assistance aforesaid of the deceased. F

7.5

The aforesaid deceased had he not been killed, would have been legally obliged to continue to render such services and assistance to plaintiff and he would have been able to do so.

7.6

Plaintiff has, in consequence of the deprivation of the services and G assistance of the deceased, been obliged to employ the services of someone else to manage and operate the dealership.

7.7

Plaintiff pays the aforesaid person an amount of R1 500 per month.

7.8

Plaintiff reasonably anticipates running the dealership for a further period of 13 years and deriving the income from his dealership for those number of H years.

7.9

Accordingly, plaintiff has suffered damages in the sum of R234 000 made up as follows: R1 500 per month x 13 years = R234 000.

7.10

In the premises hereof plaintiff has suffered damages in the amount of I R234 000 (sic).'

The basis of the plaintiff's claim in para 6 is that the deceased was his employee; in para 7, that the deceased was his son who had a legal duty to render services and assistance to him. The pertinent questions which the Court must consider are therefore the following: J

White J

(1)

A Does an employer have a claim for damages against a third party who has wrongfully injured or caused the death of his employee?

(2)

Does a child, whether a minor or a major, have a legal duty to render services to a parent, and, if so, under what circumstances?

The first question was partially answered in Union Government v Ocean Accident and Guarantee Corporation Ltd 1956 (1) SA 577 (A). In that case the Government B sought to recover from an insurer the salary it had paid to a magistrate who had been absent from duty due to injuries received in a collision. The Court held that the action in Roman law whereby a master could claim compensation from a wrongdoer for injuries to his servant, was restricted by the Roman-Dutch authorities to servants who C were either domestic servants or apprentices. Reynolds JA stated at 589B:

'Hence - on the...