- Mbombela High Court overturns lower court ruling that dismissed family’s loss of support claim due to missing bank statements.
- Judges affirm eldest son had assumed a legal and customary duty of support after his father abandoned the family.
- Road Accident Fund ordered to pay R385,429 in compensation, plus legal and actuarial costs
When SPM's 21-year-old son died in a tragic car accident, she lost not only her firstborn child but the sole breadwinner in her household. Her hopes of justice were initially dashed when the court dismissed her claim for loss of support, arguing she lacked formal documentation like bank statements or a written contract of employment.
Now, the Mpumalanga High Court sitting in Mbombela has come to a different conclusion, ruling that the mother's uncontested oral testimony, combined with community witness statements and customary norms, was sufficient to prove that the deceased had legally and practically assumed the duty to support her and her 10-year-old twin children.
The court found that the earlier ruling had placed undue weight on the absence of paperwork, ignoring the realities of informal work and rural family structures where documentation is rare and support is often given in cash.
A missing father, a responsible son
The deceased had stepped up as a provider after his father deserted the family in 2018. Employed informally at a tissue paper factory known as Big Joe, he earned around R600 a week, handing over R1 500 a month to his mother to cover essentials like food, electricity, school needs, and clothing for his siblings.
In rejecting her claim, the lower court insisted on bank records and employer testimony, even though the deceased was paid in cash and the employer, now deceased, had submitted an affidavit. The court also failed to make any ruling on whether the son had a legal duty to support his mother and siblings.
On appeal, however, Acting Judge JL Bhengu, writing for a full bench, found the court a quo had erred in law and equity.
Ubuntu and the legal duty to support
The appeal judgment was anchored in constitutional principles, precedent, and African customary law. The court noted that in many South African households, particularly those left vulnerable by desertion or poverty, the eldest child often steps into the father's shoes, assuming the duty to support the family.
“The deceased’s decision to take over his father’s duties alleviated the stress and hardship that the Appellant would have faced in trying to locate her estranged husband for maintenance,” the court observed. It characterised the deceased’s actions as an expression of Ubuntu and social responsibility, which the law ought to protect.
The judgment cited the Fosi v RAF and Paixão v RAF cases, which affirmed that even informal, voluntary support arrangements can give rise to enforceable rights, especially where indigence is proven and there is clear reliance on that support.
Court orders RAF to compensate the family
The court ruled that the mother had indeed proven on a balance of probabilities that she and her children depended on the deceased for support, and that they had suffered a compensable loss due to his untimely death.
In a sharply worded conclusion, the court also took aim at legal practitioners for failing to gather bank records, even though the mother stated she could have produced them if asked. This, the court said, unnecessarily delayed justice.
Still, it held that the absence of documentation was not fatal to the claim, given the credible testimony and the realities of informal employment in the township economy.
Breakdown of the court’s award:
The Road Accident Fund was ordered to pay the family a total of R385 429 in damages; R107 193 to the mother and R139118 to each of the two minor children (Tony and Thuli). The RAF must also pay legal fees on the High Court Scale B and cover the costs of actuarial services provided by GRS Consulting.
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