THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case no:  058/2017

In the matter between:
CHINAZ SEPTOO obo J M SEPTOO
& M SEPTOO                                                                                    APPELLANT
and
THE ROAD ACCIDENT FUND                                                  RESPONDENT

Neutral citation: C Septoo obo J M Septoo & another v The Road Accident Fund
(058/2017) [2017] ZASCA 164 (29 November 2017)

Coram:
Tshiqi, Majiedt and Mocumie JJA, Mbatha and Rogers AJJA

Heard:
09 November 2017

Delivered: 29 November 2017

Summary: Delict – action for damages – loss of support – dependant's action –
breadwinner died as a result of own negligence – single vehicle accident –
wrongfulness not established against the Road Accident Fund – appeal dismissed.

______________________________________________________________________

ORDER

On appeal from: Eastern Cape Local Division of the High Court, Port Elizabeth
(Schoeman J sitting as court of first instance):

The appeal is dismissed.

__________________________________________________________________

JUDGMENT

Mbatha AJA (Tshiqi, Majiedt and Mocumie JJA and Rogers AJA
concurring)

[1] The appeal before us is with the leave of the high court, Eastern Cape Local
Division, Port Elizabeth. The issues on appeal are; first, whether dependants, in the
position of the appellant Ms Chinaz Septoo, and her minor children, are entitled to
claim compensation for loss of support from the respondent, the Road Accident
Fund (the Fund) in terms of the Road Accident Fund Act 56 of 1996 (the Act) in
circumstances where the deceased breadwinner was the sole cause of the collision;
second, whether the common law should be developed to include such claims.

[2] The deceased, who was the driver of the motor vehicle at the time of the
collision, was married to the appellant and was the father to both her minor child
and unborn child. The appellant and her minor child were both passengers in the
said motor vehicle. The deceased negligence was the sole cause of the collision. In
a separate action the Road Accident Fund (the Fund) was declared liable for the
appellant and her minor child‟s general damages and future medical expenses. In

another action giving rise to the present appeal, she claimed damages for loss of
support.

[3] Section 3 of the Act stipulates that:
„The object of the Fund shall be the payment of compensation in accordance with this Act
for loss or damage wrongfully caused by the driving of motor vehicles.‟
The underlying basis for the Act is the common law principles of the law of delict.
A claimant must therefore prove all the elements of a delict before it can succeed
with its claim in terms of the Act.

[4] In Legal Insurance Company Ltd v Botes1 this Court described the nature of
the dependants‟ claim for loss of support in the following manner:
„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 bread-winner
who was legally liable to support them. The remedy was unknown to 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 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 - 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 dependants of the deceased man by his death”. It aims at placing them in as good a
position, as regards maintenance, as they would have been in if the deceased had not been killed.

1 Legal Insurance Company Ltd v Botes 1963 (1) SA 608; [1963] 1 All SA 593 (A).

To this end, material losses as well as benefits and prospects must be considered. The remedy
has been described as anomalous, peculiar, and sui generis - but it is effective.‟2

[5] In Evins v Shield Insurance Co Ltd3 this Court illustrated the distinction
between a dependant's claim, and a damages action for bodily injuries as follows:
„In the case of an Aquilian action for damages for bodily injury . . . the basic ingredients of the
plaintiff's cause of action are (a) a wrongful act by the defendant causing bodily injury, (b)
accompanied by fault, in the sense of culpa or dolus, on the part of the defendant, and (c)
damnum, ie loss to plaintiff's patrimony, caused by the bodily injury. The material facts which
must be proved in order to enable the plaintiff to sue (or facta probanda) would relate to these
three basic ingredients and upon the concurrence of these facts the cause of an action arises. In
the usual case of bodily injury arising from a motor accident this concurrence would take place at
the time of the accident.‟ On the other hand, in the case of action for damages for loss of support,
the basic ingredients of the plaintiff‟s cause of action would be (a) a wrongful act by the
defendant causing the death of the deceased, (b) concomitant culpa (or dolus) on the part of the
defendant, (c) a legal right to be supported by the deceased, vested in the plaintiff prior to the
death of the deceased, and (d) damnum, in the sense of a real deprivation of anticipated support.
The facta probanda would relate to these matters and no cause of action would arise until they
had all occurred.‟4

[6] In Aetna Insurance Co v Minister of Justice5 this Court said that the purpose
of motor vehicle insurance legislation was to remedy the evil „that members of the
public who are injured, and the dependants of those who are killed, through the
negligent driving of motor vehicles may find themselves without redress against
the wrongdoer. If the driver of the motor vehicle or his master is without means
and is uninsured, the person who has been injured or his dependants, if he has been

2 Ibid at 614B-E.
3 Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A); [1980] 2 ALL SA 40 (A).
4 Ibid at 838H-839C.
5 Aetna Insurance Co v Minister of Justice 1960 (3) SA 273 (A).

killed, are in fact remediless and are compelled to bear the loss themselves. To
remedy that evil, the Act provides a system of compulsory insurance.‟6

[7] The provisions of the Act that are relevant to the present enquiry are      ss
17, 19 and 21. Section 17 confers on a third party a right to claim against the Fund
for any loss or damage suffered by him or her as a result of personal injury to
himself or herself, or death of or any personal injury to any other person, if the
injury is due to the negligence or other wrongful act of the driver or owner of the
motor vehicle.

[8] Section 19(a) of the Act excludes liability for the Fund in certain cases. It
provides that:
„The Fund or an agent shall not be obliged to compensate any person in terms of section 17 for
any loss or damage –
(a) for which neither the driver nor the owner of the motor vehicle concerned would have been
liable but for section 21; or
(b) . . .‟

[9] Section 21(1) provides that:
„(1) No claim for compensation in respect of loss or damage resulting from bodily injury to or
the death of any person caused by or arising from the driving of a motor vehicle shall lie–
(a) against the owner or driver of a motor vehicle; or
(b) against the employer of the driver.
(2) Subsection (1) does not apply –
(a) if the Fund or an agent is unable to pay any compensation; or
(b) to an action for compensation in respect of loss or damage resulting from emotional shock
sustained by a person, other than a third party, when that person witnessed or observed or was

6 Ibid at 285A-B.

informed of the bodily injury or the death of another person as a result of the driving of a motor
vehicle.‟

[10] In Mlisane v South African Eagle Insurance Co Ltd7 the facts and the legal
question raised were similar to the ones raised in this case. The court in that matter
held that:
„the defendant incurs liability because he has acted wrongfully and negligently (or with dolus)
towards the deceased and thereby caused the death of the deceased.‟8
It held further that the right of action was against a third party who unlawfully
caused the death of a breadwinner and not against the estate of a breadwinner who
caused his own death.9

[11] In Amod v Multilateral Motor Vehicle Accidents Fund10 this Court set out
the requirements for the action for dependants, being that:
„(a) The claimant for loss of support resulting from the unlawful killing of the deceased must
establish that the deceased had a duty to support the dependant;
(b) It had to be a legally enforceable duty;
(c) The right of the dependant to such support had to be worthy of protection by the law;
(d) The preceding element had to be determined by the criterion of boni mores.‟

[12] In Amod the requirement of the unlawful killing of the deceased was
reaffirmed as an essential requirement. This Court in Du Plessis v Road Accident
Fund11 stated as follows:
„In terms of s 17 of the Act the defendant or an agent is, subject to the provisions of the Act,
obliged to compensate any person for any loss or damage which that person has suffered as a

7 Mlisane v South African Eagle Insurance Co Ltd 1996 (3) SA 36 (C).
8 Ibid at 41G.
9 Ibid at 41E-F.
10Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 (4) SA
1319 (SCA); 1999 4 All SA 421 (A) para 12.
11 Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA).

result of the death of any other person caused by or arising from the driving of a motor vehicle if
the death is due to the negligence of the driver or owner of the vehicle. Section 19(a) of the Act
exempts the defendant from liability for loss or damage for which neither the driver nor the
owner of the motor vehicle which caused the deceased‟s death, would have been liable at
common law.‟12

[13] In Brooks v Minister of Safety and Security13, where this Court had to deal
with whether a claim for maintenance against the Minister of Safety and Security
by the dependant of a convicted criminal was competent or not, the following was
said:
„It is true that in matters of human behaviour we are often told not to judge by results, but in law,
when considering whether a contention is well-founded, the absurdity of the results to which it
will give rise is not an immaterial consideration. That a person in the position of Brooks could by
his own intentional wrongful act create in favour of his dependants a cause of action that would
not otherwise exist is nothing short of preposterous; indeed in my view that would be a
dangerous proposition. After all it is a trite principle of our law, that a person should not be
allowed to benefit from his/her own wrongful act.‟14

[14] The reasoning adopted by this Court as illustrated above is consistent with
the common law position. In my view the Act codifies the common law position,
which recognises that compensation for loss of support can only arise from the
unlawful killing of the breadwinner by a another person. Section 19(a) expressly
states that liability is excluded in certain cases. Therefore the dependants in the
case of the deceased, who died as a result of his own negligence, do not have a
cause of action for damages for loss of support.

12 Ibid para 6
13 Brooks v Minister of Safety and Security [2008] ZASCA 141; 2009 (2) SA 94 (SCA); [2009] 2 All SA 17 (SCA).
14 Ibid para 16.14 See also Mnguni v Road Accident Fund (1090/2014) [2015] ZAGPPHC 1074 (26 November 2015).

[15] In order to bolster its contention that the dependants should be eligible to
claim even if the breadwinner was the sole cause of the accident, the appellants
contended that the common law should be developed. In Carmichele v Minister of
Safety and Security,15 the Constitutional Court warned judges to be mindful that
the major engine for law reform should be the Legislature and not the Judiciary. It
stated that „the Judiciary should confine itself to those incremental changes which
are necessary to keep the common law in step with the dynamic and evolving
fabric of our society‟.16

[16] In Cape Town City v South African National Roads Authority & others17 this
Court said:
„ . . . if the common law is to be developed, it must occur not only in a way that meets the s39(2)
objectives, but also in a way most appropriate for the development of the common law within its
paradigm. Faced with such a task, a court is obliged to undertake a two-stage enquiry: It should
ask itself whether, given the objectives of s 39(2), the existing common law should be developed
beyond the existing precedent – if the answer to that question is a negative one that should be the
end of the enquiry. If not, the next enquiry should be how the development should occur and
which court should embark on that exercise.‟18

[17] In this matter the appellant has failed to lay the basis for the proposed
development. The effect of such a development would amount to jettisoning an
essential element of the law of delict, ie wrongfulness. In any event Du Plessis and
Brooks, to the extent relevant to the issues in this matter, affirmed the common law
position in the existing current constitutional dispensation. The decision in Mlisane

15 Carmichele v Minister of Safety and Security & another (Centre for Applied Legal Studies Intervening) 2001 (4)
SA 938 (CC); 2001 (10) BCLR 995 (CC).
16 Ibid para 36.
17 Cape Town City v South African National Roads Authority & others [2015] ZASCA 58; 2015 (3) SA 386 (SCA);
[2015] 2 ALL SA 517 (SCA).
18 Ibid para 29.

was cited with approval in Amod.19 This is the correct approach that is still
applicable to cases of this nature and there is no uncertainty to the law.

[18] For its contention that the common law should be developed, the appellant
also seeks to place reliance on the Apportionment of Damages Act 34 of 1956.
According to the appellant the Apportionment of Damages Act 34 of 1956
discriminates against dependants‟ claims for loss of support where only a single
vehicle is involved in an accident as opposed to where there are joint wrongdoers.
This argument is based on s 2(1B) which provides as follows:
„Subject to the provisions of the second proviso to subsection (6)(a), if it is alleged that the
plaintiff has suffered damage as a result of any injury to all the death of any person and that such
injury or death was caused partly by the fault of such injured or deceased person and partly by
the fault of any other person, such injured person or the estate of such deceased person, as the
case may be, and such other person shall for the purposes of this section be regarded as joint
wrongdoers.‟

[19] The discrimination argument is misconceived. The purpose of s 2(1B) is not
to grant a remedy to the dependant against the deceased breadwinner. Its purpose is
to ensure that the other negligent party can reduce his own liability by bringing
into account the negligence of the deceased breadwinner. Boberg says this of the
amendment in terms of The Apportionment of Damages Amendment Act:20
„It appears, then, that the effect of this amendment on its literal wording is not merely to grant a
third party a right of contribution against a guilty spouse, but to abolish the common-law
prohibition of actions in delict between spouses married in community for the purposes of s 2 of
the Act, ie if the defendant spouse was a joint wrongdoer. But what if he was the sole

19 Amod fn 10 para 6.
„It constitutes the juristic basis for any claim which the appellant might have against Biyela and therefore against the
respondent which is only obliged to compensate the dependants of a deceased for losses suffered by them in
consequence of a motor accident caused by the negligent or other unlawful conduct of the driver of the relevant
motor vehicle, if such a driver would have been liable for such losses at common law.‟
20 The Apportionment of Damages Amendment Act 58 of 1971.See Boberg 1971 SALJ 452.

wrongdoer? The Act does not deal with that situation: the common-law prohibition therefore
remains.‟21

[20] The appellant argued that the deletion of s 19(b) of the Act in 2008 showed
that the liability which the appellant asserts in the present case was no longer
excluded. Section 19(b) previously excluded the Fund‟s liability for loss or damage
suffered as a result of bodily injury to or the death of any passenger who was a
member of the household of the negligent driver of the vehicle. The simple answer
is that on the previous restrictions applied to claims arising from the injury or loss
caused to the claimant directly or from the death of a breadwinner who was also a
passenger in the vehicle. The exclusion was not directed at the type of liability
asserted by the appellant in the present case – no such liability ever existed.

[21] In circumstances such as the present, the appellant and the minor children
have a right to claim for loss of support against the estate of the deceased. This is a
liability which exists regardless of the manner in which the deceased died. There is
thus no conceivable basis to extend the common law to create another action on
their behalf. That is not the role of the courts. It is thus not necessary to develop the
common law in this regard.

[22] The only question that remains for consideration is that of costs. The
respondent as the successful party in this litigation is entitled to costs as a general
rule. Though the general rule is that costs should follow the result, the issue of
costs is an exercise of a judicial discretion. In the case where a party has been
successful, there must be exceptional circumstances, to deprive the successful

21 P Q R Boberg, „The Apportionment of Damages Amendment Act 58 of 1971: Reform of the law regarding
delictual actions between spouses married in community and the dependants‟ action‟ (1971) 423 SALJ at 433.

party of its costs. A court „should take into consideration the circumstances of each
case, . . . the conduct of the parties and any other circumstance which may have a
bearing upon the question of costs, and then make such order as to costs as would
be fair and just between the parties.‟22

[23] I have considered whether it will be in the interests of justice to make an
order of costs against the appellant and it is my view that exceptional
circumstances exist that should persuade this Court not to mulct the appellant with
costs. Though the litigation was not undertaken to assert a constitutional right, the
issue raised by the appellant was of broad public concern and in the public interest.
We were told that there are a number of such claims in the pipeline and that the
present matter is in the nature of a test case. Private litigants should not be
discouraged to approach the courts on issues that affect the general public, for fear
of being mulcted with costs.

[24] In Hotz & others v University of Cape Town23 the Constitutional Court held
that the starting point when determining an award for costs is to have regard to the
„nature of the issues‟ between the parties. In considering whether the appellant
should be held liable for the costs of the appeal, I have taken into consideration the
nature of the claim. This claim was not a frivolous exercise. It addressed concerns
which had been brought through the various divisions of the high court. This
matter will hopefully clear the uncertainty brought about the Fund due to the fact

22 Fripp v Gibbon & Co 1913 AD 354 at 363.
23 Hotz & others v University of Cape Town [2017] ZACC 10‟ 2017 (7) BCLR 815 (CC) para 29.

that the Fund had settled similar claims in the past and rejected others.24 (See also
Ferreira v Levin NO & others; Vryenhoek & others v Powell NO & others).25

[25] In the light of the aforementioned I make an order that each party should pay
its own costs in the appeal. Accordingly the appeal fails.

[26] The following order is made:
The appeal is dismissed.

___________________
Y T Mbatha
Acting Judge of Appeal

24 Khonziwe Ntombizanele Mbambani v Road Accident Fund Case no 340/2015 Eastern Cape Local Division, Port
Elizabeth, 02 March 2016.
25 Ferreira v Levin NO & others; Vryenhoek & others v Powell NO & others 1996 (2) SA 621 (CC); 1996 (4) BCLR
441 (CC) para 3.

Appearances

For appellants:
A Frost (with him A White)
Instructed by:
Ingram & Louis Attorneys, Port Elizabeth
A P Pretorius & Vennote, Bloemfontein

For respondent:
P E Jooste (with him T Rossi)
Instructed by:
Friedman Scheckter, Port Elizabeth

Honey Attorneys, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT
OF APPEAL

FROM
The Registrar, Supreme Court of Appeal
DATE
29 November 2017
STATUS
Immediate

C Septoo obo J M Septoo & another v The Road Accident Fund
(058/2017)[2017] ZASCA 164 (29 November 2017)

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 Supreme Court of Appeal (SCA) handed down the judgment today in an
appeal from the Eastern Cape Local Division of the High Court, Port
Elizabeth. The matter concerned the question whether the appellant and her
minor children were entitled to claim compensation for loss of support from
the Road Accident Fund (the RAF) in circumstances where the deceased
breadwinner was the sole cause of the collision; second, whether the common
law should be developed to include such claims.

The appellant instituted a claim for loss of support against the RAF for herself
and on behalf of her minor children. The court a quo, dismissed their claims
on the basis that the RAF was not legally liable to compensate the appellant
and her minor children for loss of support, which they suffered as a result of
the death of her husband due to his own negligence.

The SCA recognised that the Road Accident Fund Act 56 of 1996 (the Act)
codifies the common law position, which recognises that compensation for
loss of support can only arise from the unlawful killing of a breadwinner by
another person. Section 19(a) of the Act expressly excludes liability in certain
cases. Therefore in the present case, the dependants of the deceased, who
died as a result of his own negligence and in a single vehicle, do not have a
cause of action for damages for loss of support.

On the question whether the common law should be developed, the SCA held
that the major engine for law reform should be the legislature and not the
judiciary.

The SCA held further, that the effect of such a development would amount to
jettisoning an essential element of the law of delict, i.e. wrongfulness. The
common law position is the correct approach and is still applicable to all cases
of this nature.

The SCA accordingly dismissed the appeal.

~~ ends~~