Santam Insurance Ltd v Meredith

• Jurisdiction: South Africa
• Judge: Goldin JA, James JA, Van Reenen JA
• Judgment Date: 18 July 1990
• Citation: 1990 (4) SA 265 (TkA)
• Hearing Date: 24 April 1990
• Court: Transkei Appellate Division

Goldin JA:

This is an appeal concerning the amount of compensation and the deduction of benefits in determining the loss of support by a wife, upon the death of her husband in a motor accident. The wife as first F respondent, initially instituted an action against the appellant, the insurer of the driver of the vehicle which caused the death of her husband, in her personal capacity and in her capacity as mother and natural guardian of the minor children of the marriage. As a result of agreement concerning some of the claims and later abandonment of some of the grounds of appeal against the judgment of the Court a quo, there remains only one dispute which concerns whether the division of the G joint estate results in a deductible benefit and if so what amount should be deducted.

The parties were married in community of property in 1964 and the husband was killed in a motor accident in 1984. During the subsistence of the marriage he proved to be a capable businessman who acquired a H variety of income-producing assets by his skill and application. The Court a quo dismissed a claim by appellant that respondent's income resulting from the division of the joint estate was an accelerated benefit or a 'double benefit'. It was contended that the income she derived from her share of the joint estate should be deducted from the amount payable to her for loss of support.

I Counsel for both parties referred to a great number of decided cases and the heads of arguments containing references to and photostatic copies of some of the authorities relied upon exceed 300 pages. While it is all interesting and helpful it is neither desirable nor necessary to burden this judgment with most of it. There are three related relevant issues. Firstly, the nature of and basis upon which compensation is J payable to

Goldin JA

A respondent. Secondly, her rights and role in a marriage in community of property. Thirdly, the consequences and effect of the dissolution of the joint estate in respect and concerning the amount of compensation payable to her for loss of support.

The principles governing the payment for loss of support were stated by Innes CJ in Jameson's Minors v Central South African Railways 1908 TS B 575 at 585 and 602. This judgment has been adopted and applied in many subsequent decisions as the incidence of such claims increased and new economic factors came into existence. The position was usefully summarised by Holmes JA in Legal Insurance Co Ltd v Botes 1963 (1) SA 608 (A) at 614B - H as follows:

C 'At the outset it is necessary to deal with the nature and scope of the action, according to existing South African law, by dependants against a person who has unlawfully killed the breadwinner who was legally liable to support them. The remedy was unknown in Roman law, in which no action arose out of the death of a freeman, and consequently the Aquilian action was not available. It had its origin in Germanic custom, in which the reparation of "maaggeld" was regarded as a D conciliation to obviate revenge by the kinsmen of the deceased, and it was divided among the latter's children or parents or other blood relatives. The Roman-Dutch law modified the custom by regarding the payment as compensation to the dependants for loss of maintenance. The Roman-Dutch jurists felt that this could be accommodated within the extended framework of the Roman Aquilian action by means of a utilis actio. The remedy has continued its evolution in South Africa - E particularly during the course of this century - through judicial pronouncements, including judgments of this Court, and it has kept abreast of the times in regard to such matters as benefits from insurance policies. The remedy relates to material loss "caused to the...