A child's right to money after his dad died in a car crash has been affirmed in court.
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The Supreme Court of Appeal of South Africa has ruled that courts must properly consider a child’s constitutional right to financial support after a breadwinner dies in a road accident, even where questions are later raised about the legality of the deceased’s income.
The judgment centred on a claim against the Road Accident Fund after a man died following a crash on the R40 highway in Mpumalanga in August 2018.
The deceased had been the sole breadwinner for his partner and their minor child before the collision. The deceased “was a passenger in the motor vehicle, sustained serious injuries from which he later died. It was common cause that the collision occurred as a result of the negligent driving by Mr E B Lekwane, the insured driver.”
The Road Accident Fund (RAF) had already conceded that the child was entitled to support because the deceased was the child’s father. The only outstanding issue regarding the child was the amount of damages payable.
However, during proceedings in the Mpumalanga High Court in Mbombela, the court shifted focus to the deceased’s source of income after evidence emerged that he lent money informally and that the business was not registered.
The high court concluded that the deceased’s money-lending business was illegal under the National Credit Act because it was unregistered. Relying on older apartheid-era case law, the court ruled that neither the mother nor the child could claim loss of support flowing from allegedly unlawful income.
The RAF also had argued that the deceased and his partner were not married. Even though the high court determined that the dead man supported his partner, it found that the plaintiff failed to prove that she was married to the deceased.
As a result, attempts to claim from the RAF were dismissed. But the Supreme Court of Appeal overturned that ruling this week.
Acting Judge of Appeal N E Chili said the legality of the deceased’s income had never been pleaded by the Road Accident Fund and was never properly argued during trial proceedings.
Instead, the trial had focused almost entirely on whether the deceased and the child’s mother had been married under customary law.
“The failure to plead the illegality of the deceased’s source of income, or, at the very least, raise it at the trial, deprived the appellant of the opportunity to exercise her constitutional right to a fair hearing,” the judgment stated.
The Supreme Court of Appeal said courts should be cautious about deciding matters on issues not properly pleaded or argued because doing so could prejudice litigants and undermine fairness.
Importantly, the appeal court said the high court had also failed to properly consider the constitutional rights of the child.
The judgment noted that section 28 of the Constitution gives children rights to family care, parental care, nutrition, shelter and support, while the child’s best interests are of “paramount importance” in every matter concerning that child.
“The question that should have occupied the mind of the high court is how the perceived illegality of the deceased’s income impacted on the minor child’s right to support,” the Supreme Court of Appeal said.
The court also pointed out that the RAF had previously settled another loss-of-support claim involving the deceased’s other child without raising questions about the legality of his income.
The Supreme Court of Appeal did not decide whether the deceased’s informal lending activities were actually unlawful, saying the issue had never been fully investigated during trial proceedings.
The matter has now been sent back to a differently constituted high court, before a different judge, to determine the amount of compensation payable.
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