THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No 29/09

In the matter between:

THE ROAD ACCIDENT FUND

Appellant

and

NTOMBIZANELE FLORENCE TIMIS
Respondent

Neutral citation:  The Road Accident Fund v N F Timis (29/09)
[2010]  ZASCA 30 (26 March 2010)

Coram:
Navsa, Heher, Mhlantla JJA, Hurt et Saldulker AJJA
Heard:
1 March 2010
Delivered: 26 March 2010

Summary:    Motor vehicle accident  ─  death  of  breadwinner  ─  claim

against RAF ─ deductibility of child care grants from the
damages awarded. Held ─ child support grants are directly
linked to the death of the deceased and deductible from final
award.

ORDER
____________________________________________________________
On appeal from:  The Eastern Cape High Court, Port Elizabeth
(Liebenberg J sitting as court of first instance).

The following order is made:
1.
The appeal is upheld.
2.      The order made by the court below is set aside and replaced with an
order in the following terms:
'There shall be judgment for the plaintiff as follows:
(a)
In her capacity as mother and natural guardian of Siphokazi, payment of the
amount of R136 594.40.
(b)
In her capacity as mother and natural guardian of Zandile, payment of the
amount of R166 386.05.
(c)
In her personal capacity, payment of the amount of R324 586.60.'

JUDGMENT
___________________________________________________________
MHLANTLA JA (NAVSA, HEHER JJA, HURT and SALDULKER
AJJA concurring):

[1]    Mr Alfred Vuyisile Makeleni (the deceased) died from injuries
sustained after being struck by a motor vehicle on 28 July 2001. He was
married to Ms Ntombizanele Timis, the respondent in this matter, in
terms of customary law. They had two minor children, namely Siphokazi
born on 24 June 1996 and Zandile born on 25 May 1999. The deceased
was the sole breadwinner. Shortly after his death, the respondent, who

was unemployed, applied for the benefit of her children for a child
support grant in terms of the Social Assistance Act 59 of 1992, which has
since been repealed by the Social Assistance Act 13 of 2004 (the Act).
The application was approved during November 2001.

[2] The respondent instituted action in the High Court, Port Elizabeth
against the Road Accident Fund, a statutory insurer and the appellant in
this matter, for damages arising from the death of her husband. The
matter came before Liebenberg J. The merits already having been
conceded, the learned judge was only required to determine quantum.
One of the issues that had to be decided was whether the amount of the
children's grant received by the respondent after the death of her husband
should be deducted from the damages to be awarded in respect of the
children. At the time of the trial, the total amount of the grants received
by the respondent on behalf of the children was R14 690.

[3] At the end of the trial, the learned judge, after discussing Indrani &
another v African Guarantee and Indemnity Co Ltd,1 disagreed with that
court's conclusion to the effect that the contributions by the State prior to
the award of damages were deductible because they were received by the
children by reason of the death of their father.

[4]    Liebenberg J held that the child support grants could not be said to
have been received in consequence of the deceased's death and that the
amount of R14 690 could therefore not be deducted from the final award
made to the children for loss of support  by the deceased. The court, after

11968 (4) SA 606 (D).

taking into account the question of contingencies, awarded damages in
respect of the children2 as follows:
In respect of Siphokazi -
R143 939.40
In respect of Zandile
-
R173 731.05
The appellant now appeals against this finding with the leave of the court
below.

[5] The issue on appeal is whether or not the child support grants
should have been deducted by the trial court from the damages awarded
to the respondent in her representative capacity for loss of support.

[6]    Each case in which the deduction of a benefit is in issue must, of
course, be considered on its own facts and having regard to the applicable
statutes. It is necessary to have regard to the purpose and objects of the
Act. The purpose of the grant is to supplement the income of indigent
families. The grants are meant for those who have insufficient means to
support themselves and to provide for a child who does not have
maintenance. A child support grant is made in terms of section 6 of the
Act.3 Certain requirements have to be complied with before a person
qualifies for the grant.4 An applicant, inter alia, qualifies for the grant, if

2The damages awarded to the respondent in her personal capacity was in an amount of R324 586.60.
3 Section 6 reads:
'Child support grant
A person is, subject to section 5, eligible for a child support grant if he or she is the primary care giver
of that child.'
4 Section 5 reads:
'Eligibility for social assistance:
(1) A person is entitled to the appropriate social assistance if he or she ─
(a)  is eligible in terms of section 6, 7, 8, 9, 10, 11, 12 or 13;
(b)  . . . ;
(c)  . . . ;
(d) complies with any additional requirements or conditions prescribed in terms of subsection (2); and
(e) applies for social assistance in accordance with section 14(1).
(2) The Minister  may prescribe additional requirements or conditions in respect of  ─
(a)  income thresholds;
(b) means testing;
(c)  . . . .'

he or she has no source of income or if the income is below the threshold
level.

[7] In Indrani, a mother brought an action for loss of support suffered
by her and her minor children as a result of the death of her husband from
injuries sustained in a motor vehicle collision. After the death of the
husband, she received certain allowances in respect of maintenance for
the children from the State in terms of section 89(1) of the now repealed
Children's Act 33 of 1960. Fannin J stated that a dependant entitled to
damages for loss of support should be awarded damages only for the
material loss caused by the breadwinner's death.5 The judge held that the
contributions by the State prior to the award of the damages by the court
were deductible because they were benefits received by the children by
reason of the death of their father. A similar approach is to be found in
the judgment of Trollip JA in Santam Versekeringsmaatskappy v
Byleveldt 1973 (2) SA 146 (A) at 173 to 174. It is that fundamental
principle, subject to the considerations set out in the next paragraph, that
has to be applied in this case.

[8] In Zysset & others v Santam Ltd6 the following was stated:
'[I]t is well established in our law that certain benefits which a plaintiff may receive
are to be left out of account as being completely collateral. The classic examples are
(a) benefits received by the plaintiff under ordinary contracts of insurance for which
he has paid the premiums and (b) moneys and other benefits received by a plaintiff
from the benevolence of third parties motivated by sympathy. It is said that the law
baulks at allowing the wrongdoer to benefit from the plaintiff's own prudence in
insuring himself or from a third  party's benevolence or  compassion  in coming  to the

5 At 607F-G.
6 1996 (1) SA 273 (C) at 278B-D; and 278H-279C. See also Lawsa Vol 8(1) 2ed para 156 and
Standard General Insurance Co Ltd v Dugmore NO 1997 (1) SA 33 (A) at 42B.

assistance of the plaintiff . . . . Nonetheless, as pointed out by Lord Bridge in Hodgson
v Trapp & another [1988] 3 All ER 870 (HL) at 874a, the benefits which have to be
left out of account, "though not always precisely defined and delineated", are
exceptions to the fundamental rule and "are only to be admitted on grounds which
clearly justify their treatment as such".
. . . .
In the present case, counsel on both sides sought to analyse the benefits received by
the  plaintiffs  and  to  compare  them  with  the  benefits  received  in  the  Dippenaar
case . . . .
It is doubtful whether the distinction between a benefit which is deductible and one
which is not can be justified on the basis of a single jurisprudential principle. In the
past the distinction has been determined by adopting essentially a casuistic approach
and it is this that has resulted in a number of apparently conflicting decisions.
Professor Boberg in his Law of Delict vol 1 at 479 explains the difficulty thus:
"(W)here the rule itself is without logical foundation, it cannot be expected of logic to
circumscribe its ambit."
But, whatever the true rationale may be, if indeed there is one, it would seem clear
that the inquiry must inevitably involve to some extent, at least, considerations of
public policy, reasonableness and justice. . . . This in turn must necessarily involve, I
think, a weighing up of mainly two conflicting considerations in the light of what is
considered to be fair and just in all the circumstances of the case. The one is that a
plaintiff should not receive double compensation. The other is that the wrongdoer or
his insurer ought not to be relieved of liability on account of some fortuitous event
such as the generosity of a third party.'

[9] A plaintiff should not be precluded from obtaining a full measure
of damages. He or she should however not receive double compensation.
In Hodgson v Trapp & another,7 the plaintiff claimed damages for
personal injuries sustained and loss and expenses incurred as a result of a
motor vehicle accident. The trial judge awarded damages. The defendants

7 [1988] 3 All ER 870 (HL).

appealed to the House of Lords to determine whether or not the
attendance and mobility allowances payable to the plaintiff pursuant to
sections 35 and 37 of the Social Security Act should be deducted from the
award made. Lord Bridge stated the following:8
'In the end the issue in these cases is not so much one of statutory construction as of
public policy. If we have regard to the realities, awards of damages for personal
injuries are met from the insurance premiums payable by motorists, employers,
occupiers of property, professional men and others. Statutory benefits payable to
those in need by reason of impecuniosity or disability are met by the taxpayer. In this
context to ask whether the taxpayer, as the "benevolent donor", intends to benefit "the
wrongdoer", as represented by the insurer who meets the claim at the expense of the
appropriate class of policy holders, seems to me entirely artificial. There could hardly
be a clearer case than that of the attendance allowance payable under s 35 of the 1975
Act where the statutory benefit and the special damages claimed for cost of care are
designed to meet the identical expenses. To allow double recovery in such a case at
the expense of both taxpayers and insurers seems to me incapable of justification on
any rational ground.'

[10]    Counsel for the respondent submitted that the child support grants
were not causally linked to the death of the deceased as the receipt of
such grants was not a benefit arising from his death and accordingly that
these grants were res inter alios acta.

[11]   This submission has no merit. It is not in dispute that the deceased
was responsible for the support of his family during his lifetime. The
position, however, changed upon his death as his family became indigent.
The respondent had to apply for the child care grant as the parent who
had provided maintenance had died. The children received a benefit of a
social grant because they had lost their father, a breadwinner, in

8 At 876F.

circumstances set out in para [1] above. The child support grants are
therefore directly linked to the death of the deceased.

[12] Counsel for the respondent relied further on Makhuvela v Road
Accident Fund.9 In that case, the parents of a minor child had died,
whereafter the grandparents were appointed as foster parents. The
grandmother received a foster care grant. The court had to decide whether
the payment of such a grant was res inter alios acta and not deductible
from the final award of damages. Malan J held that the primary purpose
of the foster care grant was the realisation of the constitutional rights of
the child through the intervention of the foster parent. The grant was paid
to the foster parent and not the child to enable the parents to comply with
their constitutional and other obligations to the child. In Makhuvela, the
court was dealing with a foster care grant which has its own dimensions.
In the present case, we are concerned with the material loss suffered by
reason of the deceased's death and the impact of a social assistance grant
for the benefit of a child. For this reason, it is not necessary to explore the
correctness or otherwise of the judgment in Makhuvela.

[13] In this matter, the State assumed responsibility for the support of
the children as a result of the breadwinner's death. The moneys paid out
in terms of the Road Accident Fund Act and the Social Assistance Act are
funded by the public through two State organs. Not to deduct the child
grant would amount to double recovery by the respondent at the expense
of the taxpayer and this is incapable of justification. In my view, it was
not the intention of the Legislature to compensate the dependants twice.

9 [2009] ZAGPJHC 18; 2010 (1) SA 29 (GSJ).

[14] Although the amount in dispute in the present case may appear to
be small and insignificant, one has to consider the fact that there may be a
multitude of similar claims and with resultant ramifications for the
National Treasury. It seems to me that the principles of fairness, equity
and reasonableness dictate that the grants received should be deducted
from the awards made by the court a quo. As far as equity is concerned,
there is a public interest in the support of indigent children. The
deduction of the grants will not leave the children destitute as their
interests have been met by the final award of the sums of R136 594.40
and R166 386.05 respectively, which represents the true measure of the
damages sustained.

[15]  The court a quo accordingly erred in finding that the child support
grants should not be deducted. Its order in that regard must be set aside.

[16] That brings me to the question of costs. The appellant does not
seek a costs order against the respondent. We were, however, provided
with three volumes of unnecessary material, when the parties could have
agreed that the matter be decided in the form of a stated case. It has
become an undesirable and not infrequent practice that parties do not give
due consideration to the rules relating to the composition of records on
appeal. We record, once again our disapproval of this practice.

[17] In the result the following order is made:
1.
The appeal is upheld.
2.
The order made by the court below is set aside and replaced with
an order in the following terms:

'There shall be judgment for the plaintiff as follows:
(a)
In her capacity as mother and natural guardian of Siphokazi, payment of the
amount of R136 594.40.
(b)
In her capacity as mother and natural guardian of Zandile, payment of the
amount of R166 386.05.
(c)
In her personal capacity, payment of the amount of R324 586.60.'

__________________
N Z MHLANTLA

JUDGE OF APPEAL

APPEARANCES:

Counsel for Appellant
:

A Frost

I Dala

Boqwana Loon & Connellan Inc
PORT  ELIZABETH

Webbers, BLOEMFONTEIN

For Respondent

:

N Paterson

A Moorhouse

Roelofse Meyer Inc

PORT ELIZABETH

Symington & de Kok

BLOEMFONTEIN
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:  The Registrar, Supreme Court of Appeal
Date:   26 March 2010
Status: Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

THE ROAD ACCIDENT FUND v NTOMBIZANELE  FLORENCE  TIMIS

On 26 March 2010 the Supreme Court of Appeal (SCA) upheld an appeal by the
Road Accident Fund (the appellant) against a judgment of the Eastern Cape High
Court, Port Elizabeth. That court had refused to deduct an amount of R14 690 in
respect of child support grants received by Ms Ntombizanele F Timis (the
respondent) on behalf of her two minor children after the death of their father, (the
deceased)  from the final award of damages made to the children in respect of the
loss of support flowing from his death.

The deceased, the sole breadwinner in his family, was fatally injured in a motor
vehicle accident. His widow, the respondent, applied for the benefit of their children
for child support grants in terms of the Social Assistance Act 13 of 2004. That
application was approved in November 2001. She also instituted action in the High
Court, Port Elizabeth against the appellant for damages arising from the death of her
husband, including loss of support in respect of herself and the children.

The merits having been conceded the High Court was confined to determining the
quantum of the claim.. It had to decide, inter alia, whether the amount of the child
support grants received by the respondent should be deducted from the damages to
be awarded to her on their behalf. The trial court held that the child support grants
were not received in consequence of the death of the deceased and they should
therefore not be deducted from the final award of damages.

The SCA held that a plaintiff should not be precluded from obtaining the full measure
of damages that he or she is entitled to but should, on the other hand, not receive
double compensation. Furthermore, it held that the payment of the child support
grants was directly linked to the death of the deceased. The moneys paid out in
terms of the Road Accident Fund Act and the Social Assistance Act were funded by
the public and to not deduct the child grant would amount to double recovery by the
respondent at the expense of the taxpayer. The court held that the child support
grants were deductible and accordingly ordered that the amount of R14 690 be
deducted from the final award made to the children.

---ends---