The Supreme Court of Appeal (SCA) has overturned a Mpumalanga high court judgment that stripped a grieving mother and her minor child of their right to claim loss of support from the Road Accident Fund (RAF).
The SCA ruled that the high court committed a serious misdirection during the trial by ruling on an unpleaded issue — whether the woman’s partner’s income was earned by unlawful means.
The man, who was a passenger in a vehicle, was killed in an accident which occurred along the R40 highway in Mpumalanga on August 14 2018.
The woman instituted claims for loss of support against the RAF, both in her representative capacity as mother and natural guardian of the minor child who was born in March 2013.
In her particulars of claim, the woman stated that the deceased supported her and the minor child during his lifetime. This was because she and the deceased were married to each other through customary law and the deceased was the father and natural guardian of the minor child.
Though the RAF initially pleaded a bald denial of these allegations, it later conceded that the deceased was the father of the minor child and was thus obliged to support him.
However, the fund persisted in its denial that she and the deceased were married and therefore no duty of support arose.
When addressing the court before and during the trial, the parties narrowed the issue further to whether the deceased had a spousal duty to maintain the woman during his lifetime that entitled her to a claim from the fund for loss of support.
In its judgment on Tuesday, the SCA said the evidence led at the trial court focused squarely on establishing the existence of a marriage between the woman and the deceased.
During her evidence, the woman testified that the deceased used to lend money to people, from which he generated up to R4,500 per month.
The court asked the plaintiff whether this activity was “a loan shark business” and whether “it was registered”. The woman answered that “it was not registered”.
After the evidence was concluded, the high court requested the parties to submit heads of argument.
In its heads of argument, the fund contended, among other things, that the woman’s claims, both in her personal capacity and on behalf of the minor child, had to fail because the deceased’s income was earned through unlawful means. This was based solely on the evidence of the woman when, in answer to the court’s question, she mentioned that the deceased’s money-lending business was “not registered”.
In its judgment, the high court found that the woman failed to prove that she was married to the deceased.
Despite this finding, the high court nevertheless proceeded to inquire whether during his lifetime, the deceased owed the woman any duty of support, despite them not being married to each other. The high court said the deceased owed her a duty of support.
But the court went further to inquire about whether the income that the deceased earned from his unregistered “loan shark” business could be claimed by his dependents, regardless of the apparent unlawful way the deceased acquired it.
“For the reason that the deceased’s money-lending business was not registered, the high court concluded that both the plaintiff’s and the minor child’s claims for damages resulting from the deceased’s death were not enforceable against the fund. It accordingly dismissed their claims with costs,” the SCA said in summarising the high court judgment.
In its judgment, the SCA said the issue of the illegality of the deceased’s income was not canvassed at the trial, as the focus was on the existence of a marriage between the woman and the deceased.
Except for one question by the trial court, “whether the deceased’s loan shark business was registered”, it was never suggested to the claimant that the deceased’s money-lending business was illegal. Neither was it pleaded by the fund.
“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,” acting judge of appeal Nkosinathi Chili said in a unanimous judgment of the full bench of the court.
He said both the SCA and the Constitutional Court have cautioned against deciding a matter on issues neither pleaded nor canvassed with the parties.
Chili said it was thus impermissible for the high court, of its own accord, to extend its inquiry to an issue that had neither been pleaded nor traversed at the trial.
He said the woman had not been called on to meet the case that the deceased’s source of income was illegal.
Chili said in rejecting both the woman’s and the minor child’s claims, the high court completely lost sight of the fact that it had endorsed a pretrial arrangement between the parties that the minor child’s loss of support claim was not in issue.
“This acceptance implicitly included that the legality of the deceased’s income was not in dispute. This makes sense as the fund had settled another case involving the deceased’s other minor child with a different mother.”
Chili said the fund could not tenably dispute the legality of the deceased’s income, having accepted it in another case.
The SCA remitted the matter back to the high court, differently constituted, to determine the amount to be paid to the child.
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