Rondalia Assurance Corporation of SA Ltd v Britz
Judge | Myburgh J and Margo J |
Judgment Date | 05 May 1976 |
Citation | 1976 (3) SA 243 (T) |
Hearing Date | 06 April 1976 |
Court | Transvaal Provincial Division |
Margo, J.:
The respondent sued the appellant in the magistrate's court at Krugersdorp for damages in the sum of R400, being funeral expenses and expenses incidental thereto incurred by the respondent consequent on the death of her 13-year-old daughter, of whom she was the legal guardian. In her summons the respondent alleged that the deceased, while a passenger in a motor car, had been fatally injured in a B collision caused by the negligent driving of a second vehicle, which latter vehicle had been insured by the appellant under the provisions of the Compulsory Motor Vehicle Insurance Act, 56 of 1972. In further particulars the respondent alleged that the sum of R400 was made up as follows (for convenience I C have assigned a number to each item):
(1)
funeral expenses |
R100 |
(2)
funeral clothes |
155 |
(3)
wreath on coffin |
6 |
(4)
glass wreath on grave |
35 |
(5)
air ticket for the deceased's grandmother to attend the funeral |
92 |
(6)
telephone calls |
8 |
(7)
petrol consumed |
4 |
D The appellant, without admitting liability, paid into court an amount of R100 in full and final discharge of the claim and further tendered to pay the respondent's costs to date. The tender was not accepted, and the appellant then filed a plea in E which the respondent was put to the proof of the particulars of her claim. At the trial she testified in support of her claim, and was cross-examined, but no evidence was offered in rebuttal. The appellant then conceded liability for item 1 of the claim, but for nothing else.
The magistrate awarded to the respondent a total amount of R230,50 plus costs. He disallowed item 5, but held that items F 1, 3, 4, 6 and 7 were recoverable, and also half of item 2 (funeral clothes). His reason for limiting item 2 to half the amount claimed was that the clothing, which had been bought for the respondent's children, could still be used by them after the funeral.
The present appeal is against the magistrate's order, on the ground that items 2, 3, 4, 6 and 7 were not part of the funeral G expenses or, alternatively, that the appellant was not liable for any such items of expenditure, and on the further ground that the appellant should not have been held liable for costs beyond the date of the tender.
Counsel for the appellant argued that the claim should have been disallowed entirely because, at best, only those expenses H were recoverable which were incurred for the purpose of conducting the funeral in accordance with the custom of the country (Voet, 11.7.14), and there was no evidence of what the custom of this country required for the act and ceremony of burial. In my view, making due allowance for possible differences in the mores of particular communities in the modern complex of races, religions and beliefs, we are entitled to take judicial cognisance of the general customs, both secular and religious, by which, in these times, the body of a deceased person is committed to the grave or to cremation.
In general, the disposal of the earthly remains of a deceased person is a
Margo J
matter for his family, who arrange for the funeral to take place, and ordinarily the occasion is marked by a religious service and traditional forms of mourning. Expense is commonly incurred, not only in the actual interment or reduction of the body to ashes by fire, but also in providing for the religious ceremony, in sentimental expressions of respect and mourning, in the provision after the funeral of A refreshments for relatives and friends, some of whom may have travelled long distances to attend the funeral, and in the subsequent erection of a tombstone.
However, it does not follow that all such expenses would be recoverable in a case such as this. In order to determine the extent of the appellant's liability, it is necessary to clarify B the legal principles by which one in the position of the respondent is entitled to incur funeral expenses and to recover damages in respect thereof ex delicto.
Our attention was not drawn to any statutory regulation of the right or duty to bury a deceased person, but it is to be noted that, in terms of the proviso to sec. 6 (a) of the Anatomy Act, 20 of 1959, unless a body has been left by last will and C testament to an anatomy school, the surviving spouse or nearest adult relative may claim it for burial. Under the common law, providing for a child's funeral would not appear to be part of the duty of support, because that duty ends on the death of the child. Voet, 11.7.7 (Gane's translation, vol. II, pp. 735 - 6) says, under the heading 'Person chosen by D deceased must bury', that a funeral must be carried out by him whom the deceased has chosen. Then, under the heading, 'Who may bury if none chosen', Voet says:
'If the deceased did not impose the duty of burial on anyone, the matter will affect those who have been named in the last will as heirs. If no one has been so named, it affects the legitimate children or the blood relations, each in their order of succession. If they also are wanting, it is the duty of the E magistracy to take care that the deceased is buried out of his own money or property.'
Voet goes on to describe the actio funeraria, which was available to a stranger to recover the costs of a funeral for which he had paid. We are not here concerned with the actio, save in so far as the rights accorded thereby indicate the persons responsible for ensuring the burial of the deceased. F Voet, 11.7.8 (Gane's translation, op. cit., pp. 736 - 7) says:
'Such action is broadly against those whose concern the funeral is - civil and praetorian heirs, and fathers whose... sons of households have been buried; provided that the heirs of a...
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...referred to Road Accident Fund v Sauls 2002 (2) SA 55 (SCA): applied H Rondalia Assurance Corporation of South Africa Ltd v Britz 1976 (3) SA 243 (T): Santam Bpk v Henery 1999 (3) SA 421 (SCA) ([1999] 2 All SA 312): referred to Smit v Abrahams 1994 (4) SA 1 (A): referred to Standard Charter......
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...2005 (4) SA 319 (CC) (2005 (3) BCLR 231): dictum at para [19] applied C Rondalia Assurance Corporation of South Africa Ltd v Britz 1976 (3) SA 243 (T): S v Basson 2005 (12) BCLR 1192 (CC): applied S v Boesak 2001 (1) SA 912 (CC) (2001 (1) SACR 1; 2001 (1) BCLR 36): considered S v Makwanyane......
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...in B para [41] applied Quilter v Attorney-General [1998] 1 NZLR 523 (CA): compared Rondalia Assurance Corporation of SA Ltd v Britz 1976 (3) SA 243 (T): dictum at 245H - 246E Santam Bpk v Henery 1999 (3) SA 421 (SCA): compared and applied Satchwell v President of the Republic of South Afric......
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Hlomza v Minister of Safety and Security and Another
...v Lee supra. [7] Evins v Shield Insurance Co Ltd supra at 838B. [8] Rondalia Assurance Corporation of South Africa Ltd v Britz 1976 (3) SA 243 (T) at [9] Van Loggerenberg & Farlam Erasmus Superior Court Practice at B1-144J and the authorities referred to in fn 1. [10] AA Mutual Insurance As......
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Hlomza v Minister of Safety and Security and Another
...referred to Road Accident Fund v Sauls 2002 (2) SA 55 (SCA): applied H Rondalia Assurance Corporation of South Africa Ltd v Britz 1976 (3) SA 243 (T): Santam Bpk v Henery 1999 (3) SA 421 (SCA) ([1999] 2 All SA 312): referred to Smit v Abrahams 1994 (4) SA 1 (A): referred to Standard Charter......
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Dikoko v Mokhatla
...2005 (4) SA 319 (CC) (2005 (3) BCLR 231): dictum at para [19] applied C Rondalia Assurance Corporation of South Africa Ltd v Britz 1976 (3) SA 243 (T): S v Basson 2005 (12) BCLR 1192 (CC): applied S v Boesak 2001 (1) SA 912 (CC) (2001 (1) SACR 1; 2001 (1) BCLR 36): considered S v Makwanyane......
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Du Plessis v Road Accident Fund
...in B para [41] applied Quilter v Attorney-General [1998] 1 NZLR 523 (CA): compared Rondalia Assurance Corporation of SA Ltd v Britz 1976 (3) SA 243 (T): dictum at 245H - 246E Santam Bpk v Henery 1999 (3) SA 421 (SCA): compared and applied Satchwell v President of the Republic of South Afric......
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Hlomza v Minister of Safety and Security and Another
...v Lee supra. [7] Evins v Shield Insurance Co Ltd supra at 838B. [8] Rondalia Assurance Corporation of South Africa Ltd v Britz 1976 (3) SA 243 (T) at [9] Van Loggerenberg & Farlam Erasmus Superior Court Practice at B1-144J and the authorities referred to in fn 1. [10] AA Mutual Insurance As......