DEPENDANTS’ ACTION FOR LOSS OF SUPPORT

1.1 NATURE OF ACTION

The dependants of a person killed in a wrongful manner may claim damages for loss of support or loss of services sustained
by reason of the deceased’s death.

The dependant thus has to prove that the death of the breadwinner was caused wrongfully and culpably (Evins v Shield
Insurance Co Ltd 1980 2 SA 814 (A); Victor v Constantia Ins Co Ltd 1985 1 SA 118 (C )).

The origin of the dependants’ action lies in Germanic custom rather than Roman law, although most Roman-Dutch writers
regard the action as a species of actioutilis under the lexAquilia.

In Evans v Shield Insurance Co. Ltd., Corbet J described the action in these words:

“At common law the dependant’s action for damages for loss of support of the breadwinner is a peculiar remedy… An
essential and unusual feature of the remedy is that, while 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, the claimant (the dependant)
derives his right of action not through the deceased or from his estate but from the fact that he has been injured by the death
of the deceased and that the defendant is in law responsible therefore. Only a dependant to whom the deceased was under a
legal duty to provide maintenance and support may sue and in such action the dependant must establish actual patrimonial
loss, accrued and prospective, as a consequence of the death of the breadwinner.” (R. Blanpain. 2008. International
Encyclopaedia of Law. Kluwer Law International), pp. 208-9.

The requirements of a dependants’ action(s) is/are defined as:

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 1) A wrongful act by the defendant causing the death of the deceased;
2) Culpa (or dolus) on the defendant’s part;
3) A legal right to be supported by the deceased; and
4) Damnum, in the sense of a real deprivation of anticipated support.

Case law:

In Legal Insurance Co Ltd v Botes 1963 1 SA 608 (A) 614, the court declared: “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 breadwinner who was legally liable to support them. The remedy was unknown to the 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 the4 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 defendants 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 utilisactio. 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… 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 if the deceased has not been killed.”

1.2 LEGAL DUTY TO SUPPORT

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The plaintiff must show that the deceased while alive had a legal duty (whether under the common law or statute) to support
him.

A common law duty to support may arise by virtue of marriage/blood relationship.

The following relatives are entitled to bring an action for loss of support

1) Spouse
2) Child
3) Parent
4) Brother or sister
5) Grandparents and grandchildren
6) Widow of customary marriages

SPOUSE

The widow of the deceased is entitled to sue for the loss of support she has suffered as a result of the husband’s death.

A claim for loss of support caused by the unlawful killing of her husband was the crux of Arhibald v Attorney-
General [19991] BLR 169.

There must be proof that the parties were legally married either under customary law or statute.
A husband can also recovered damages for the loss of support provided by his wife, whether in the form of financial
loss or deprivation of domestic services.

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Thus in Union Government v Warneke 1911 AD 657, the court held that a husband can recover compensation from
the wrongdoer who negligently killed his wife, for the deprivation of the assistance of his wife in the care, clothing
and upbringing of their children.
The claim will fail if it is shown that the deceased was too indigent to provide any support.

CHILD

Whether legitimate or illegitimate, may claim damages for loss of support suffered as a result of the death of either
parent.
An exception to this is where the child is self-supporting or the duty of support has been transferred to someone else
through, for example, marriage.
The child need not necessarily be a minor, for a disabled adult child still depend on the parents can sue for loss of
support as a result of the death of either parent.

In Brooks v The Minister of Safety and Security [2007] 4 All SA 1389 (C), a father had been imprisoned for murder
and could no longer support his son. The son instituted a claim for loss of support against the police on the basis that
they had had a legal duty to confiscate his father’s fire-arm and that their omission to do this had resulted in the father
committing murder. In the trial court Erasmus J held that the action of dependants could for reasons of legal policy
not be extended to the present situation, mainly because the breadwinner had by his own intentional conduct rendered
himself unable to support his dependant.
Analogous policy considerations should also deny children a claim for support where the parent committed suicide in
circumstances where the police had had a legal duty to confiscate his or her fire-arm.

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A child does not lose his claim for loss of maintenance as a result of his father’s death if he is adopted after his
father’s death. (Constantia VersekeringsmaatskappyBpk v Victor 1986 1 SA 601 (A).

Neither does a child lose his claim for loss of maintenance as a result of the death of his mother who supported him
on her own, because of the fact that his father still has a duty to support him after his mother’s death. (Senior v
National Employers General Insurance Co Ltd 1989 2 SA 136 (W).

PARENT

For a parent to succeed in an action for loss of support resulting from the death of a child, it must be shown;
First, that the parent is indigent and cannot support himself/herself, and
Second, that the child is able to contribute or provide the required support.
The onus is on the parent to prove that these two fundamental conditions exist.

The court pointed out in Kemmonye Marape v Attorney-General (unreported), the fact that the deceased child was a
“good son” who made substantial contributions to the welfare of the parents on its own, neither rendered him legally
bound to give such support.

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In Moletlanyi& Another v Botswana Motor Vehicle Insurance Fund[1997] BLR 1298, the court held that the conduct
of the deceased, who was a third year student at the University, in sending part of his allowance to support his
mother, clearly demonstrated that he felt he had a duty to support her.

An analysis of Moletlanyi

The first and second plaintiffs are Moletlanyi and his wife.
Defendant is the Botswana Motor Vehicle Insurance Fund – the vehicle involved in the accident was insured.
Because of this connection, the plaintiffs alleged that Botswana MVI owed both of them a duty of support. The
further alleged that their deceased son owed them a duty of support and as a result of his death each of them has
suffered damages in the sum of P12 000 for loss of support. The plaintiffs also claim that they are indigent – they are
unable to work due to old age and have no other source of support and maintenance. The plaintiffs aver that had the
deceased not been killed in the motor vehicle accident, he would have been legally obliged to continue to support
them and they would not have lost their right of support of the deceased. It is the contention of the plaintiffs,
therefore, that each of them is entitled to payment of damages in the sum of P12 000 for loss of support as a result of
the death of their son who was killed in an accident involving a motor vehicle insured by the defendant (BMVI)
which was being driven negligently at the time of the accident.

The defendant admits that the accident was caused by the negligence of the driver of the insured motor vehicle. It
denies that the duty to support first and second plaintiffs had accrued in law to the deceased and further denies that
the plaintiffs suffered damages of P24 000 for loss of support. The defendant then proceeds to tender the sum of
P5 000 as funeral expenses. At the commencement of the trial it was confirmed that this amount had since been paid
to the plaintiffs.

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One of the witnesses for the defendant, GasethataNengu testified that all persons who sought assistance from the
District Council had to pass through him so that he might refer them to the social workers for assessment of their
economic status before they are declared destitute and therefore, qualify for assistance from the local authorities. He
said the plaintiffs never came to him seeking assistance and therefore in his view there were not destitutes. In my
view the fact that one has not approached the authorities to be considered a destitute does not necessarily indicate or
show that that person is not indigent. There may be several reasons why a person has not approached the authorities
such as for example, lack of knowledge where to get assistance or because in the community where one resides being
declared a destitute may carry a stigma.

Plaintiffs indigent?In order to succeed in their claims, each of the plaintiffs has to prove on a balance of probabilities
that he or she is indigent and that the duty of support in respect of each plaintiff had arisen in law at the time of the
deceased’s death. First plaintiff testified that he lived at Rakops village with his two wives who lived in separate
homesteads. He is aged 67 and some years back he broke his leg and now he walks with the aid of a stick. He has
very few clothes and has nine or ten head of cattle and no ploughing fields. He gets P100 per month old age pension
from the Botswana Government, but his his wife (second plaintiff) was not receiving such pension because she was
not yet aged 65 years. The first plaintiff also testified that the second plaintiff stays with her daughter in law from
whom she gets her daily meals. The second plaintiff told the court that when the deceased was at UB he used to give
her money from the allowance he received, at times sending her P100 and using the rest to buy toiletries. She
testified that she stays with her daughter in law and that at times they run out of food before the end of the month
which often compels her to approach her own mother for assistance.

How the amount of P12 000 claimed by the second plaintiff was arrived at?
Once the court reaches a decision that the plaintiff is entitled to damages, it becomes the duty of the court to
determine the amount of damages that should be awarded to the plaintiff.

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The second plaintiff has established that her deceased son used to give her P100 out of his allowance. Payment of
P100 by the deceased to his mother translates into a yearly amount of P1200 and over a period of 10 years, that being
a period the second plaintiff might be expected to live given her health state and age, P100 per month translates into
P12 000, which is my view is not an unreasonable and excessive amount in the circumstances of this case.

The court ruled:

“Were it not for the fact that the first plaintiff is now receiving P100 per month old age pension, I would have had no
doubt in arriving at the conclusion that he is indigent. Because the first plaintiff receives a monthly pension in
addition to the livestock he owns I am of the view that he is not indigent and his claim should, therefore, fail.”
“On the evidence placed before the court by the second plaintiff I am satisfied that she has proved on a balance of
probabilities that she is indigent.”

In Pike v Minister of Defence 1996 3 SA 127 (CK) 133, White J expressed on the issue of the child’s duty to support
his parent(s): “The prerequisites are that the child must be able to render the required services [support] and
that the parent is indigent (inopes).

BROTHER OR SISTER

An indigent brother or sister can claim damages for loss of support for the wrongful killing of the brother or sister on
whom they depend provided it can be shown that the latter had sufficient meansto provide the support and that the
parents were unable to provide it. (Oosthuizen v Stanley 1938 AD 322).

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GRANDPARENTS AND GRANDCHILDREN

A reciprocal obligation of support and hence a right of action for loss of support could arise between grandparents
and grandchildren provided the children, in the case of the former, or the parents, in the case of the latter, are dead or
unable to provide maintenance.(Ford v Allen 1925 TPD).

Beyond blood relatives in the collateral line other than brothers and sisters, there is no duty of support, hence no
action for damages loss of support even though it is clearly shown that the deceased did support these relatives at the
time of his death.
Examples of such relatives whose claims for loss of support have been rejected in the past are an uncle of the
deceased, a sister-in-law of the deceased and a stepmother of the deceased.

WIDOW OF CUSTOMARY MARRIAGES

Before the Recognition of Customary Marriages Act 120 of 1998, a black woman married according to a customary
union could not enter into a “legal marriage.” She could therefore not succeed with a delictual claim for loss of
support as a result of the death of her husband.
Because of this Act there is now a reciprocal duty of support between spouses.

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In Amod v Multilateral Motor Vehicle Accidents Fund1999 4 SA 1319, the question was whether a Muslim marriage
gave rise to a duty of support. Mahomed CJ described how the boni mores had changed concerning this matter.The
view that the law would only protect a duty of support arising from marriages sanctioned by a single religion or
philosophy to the exclusion of others, was according to him “an untenable basis for the determination of the boni
mores of society (1328). He continued: “ It is inconsistent with the new ethos of tolerance, pluralism and religious
freedom which had consolidated itself in the community even before the formal adoption of the interim
Constitution… This new ethos is substantially different from the ethos which informed the determination of the boni
mores of the community when the cases which decided that ‘potentially polygamous’ marriages which did not accord
with the assumptions of the culturally and politically dominant establishment of the time did not deserve the
protection of the law for the purposes of the defendant’s action. The boni mores have changed and will now
recognize the existence of a duty of support flowing from Muslim marriages.

A Muslim marriage does not constitute a “normal” contractual relationship but flows from a “solemn marriage in
accordance with the tenets of recognized and accepted faith,” and the customary union of black people is the product
of a practice recognized by indigenous law. These are deciding factors in favour of the protection of dependants’
rights of support against infringement by third parties.

DEPRIVATION OF SUPPORT

 The claim for duty of support will fail if it is shown that the deceased was too indigent to provide any support.

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  Where the child is self-supporting or the duty of support has been transferred to someone else through, for
example, marriage.

 Beyond, blood relatives in the collateral line. Other than brothers and sisters, there is no duty of support, hence
no action for damages for loss of support will succeed even though it is clearly shown that the deceased did
support these relatives at the time of his death.

ASSESSMENT OF DAMAGES

Legal Insurance Co.ltd v Botes .Courts attempt to place the dependants in as good a position as regards maintenance,
as they would have been in if the deceased had not been killed.

All material losses as well as benefits and prospects must be considered.

The general approach in computing damages has been to use the annuity basis of calculation as a starting point and
to adjust the figure thus obtained in accordance with the general equities of the case, having regard to various
factors, such as the benefits accruing to the plaintiff by reason of the deceased’s death.
The Botswana Court of Appeal in Archibald v Attorney-General decided to adopt the English multiplier/multiplicand
method. In the case itself, the plaintiff sued the government for loss of support resulting from the unlawful and
wrongful killing of her husband, basing her claim on a figure computed by an actuarial expert. In the High Court, the
judge whilst adopting the multiplier/multiplicand method opined that it was inadvisable and undesirable for the courts
in Botswana to adopt a method of assessment that made expert actuarial evidence indispensable, since there was

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 nothing intrinsically Roman-Dutch common law about the use of the year-by-year method or of the actuarial
calculations closely related with it. The Court of Appeal whilst agreeing with the use of the multiplier/multiplicand
method pointed out that the court a quo was wrong in rejecting the use of the actuarial method of calculations in
Botswana.

The annuity or year-by-year method of computing such damages therefore remains an option that is available to the
courts in Botswana. This approach consists of calculating what it would cost to purchase an annuity that would give
the plaintiff annual payments equivalent to the annual maintenance lost over the period during which the plaintiff
would have been supported. The entire claim is treated as one for prospective damages.

The first step in the annuity method of assessment requires a determination of the following:

1) The period of support. This depends upon three factors: the joint expectation of life of the plaintiff and the
deceased prior to the latter’s death, the period within this joint expectation of life during which the deceased
would have been devoted a portion of his income to the support of the plaintiff had he, the deceased, not been
killed.
2) The deceased’s income. This is the net annual income over the period during which the deceased would have
maintained and supported the plaintiff.
3) The portion of the deceased’s income devoted to support the plaintiff.

This is then used to arrive at an arithmetical estimate, with the assistance of an actuary, to estimate the total loss suffered by
the plaintiff.

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Annuity and discount tables are also used to ensure that the capital sum arrived at is equivalent to that portion of the
deceased’s annual income that the plaintiff would have enjoyed by way of maintenance and support and this sum will
exhaust itself at the end of the period for which the plaintiff is entitled to support. (Arendse v Maher 1936 TPD 162).

The following factors and contingencies have usually been taken into account in adjusting the annuity figure:

1) New sources of income such as inheritance, insurance and pension consequent upon the death of the deceased.
2) Remarriage of wife.
3) Wife’s earning capacity.
4) Marriage of child.
5) Loss of husband’s contribution towards joint expenses.
6) Loss of social advantages.
7) Loss of prospective rights of inheritance.

DEFENCES WHICH MAY BE RAISED AGAINST DEPENDANTS’ ACTION

Contributory negligence on the part of the plaintiff was, in the Roman and Roman-Dutch law, a complete ground of
justification that exonerated the defendant from liability.

Today, with the plea of contributory negligence, the defendant seeks not to escape from liability entirely, but merely to
reduce the extent of his liability on the ground that the plaintiff was partly responsible for his loss.

The basis of contributory negligence is the Apportionment of Damages Act 1969, of which section 2(1) reads as follows:
“Where any person suffers damage which is caused partly by his own fault and partly by the fault of any other person, a
claim in respect of that damage shall not be defeated by reason of the fault of the claimant but the damages recoverable in

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respect thereof shall be reduced by the court to such extent as the court may deem just and equitable having regard to the
degree to which the claimant was at fault in relation to the damage.”

The basic principles that guide the application of the law of contributory negligence is stated in the Apportionment of
Damages Act. These principles can be summarized as follows:

1) Damage shall for the purposes of subsection (1) be regarded as having been caused by a person’s fault
notwithstanding the fact that another person had an opportunity of avoiding the consequences thereof and negligently
failed to do so. Last opportunity rule antithesis
2) The plaintiff owes no duty to others to protect himself. In Nance v British Columbia Electric Railway Co. Ltd [1951]
AC 601, 611, it was decided: “When contributory negligence is set up as a defence, its existence does not depend on
any duty owed by the injured party to the party sued, and all that is necessary to establish is to prove… that the
injured party did not in his own interest take reasonable care of himself and contributed by this want of care, to his
own injury.”
3) Section 2(4) of the Act, excludes “intentional wrongdoing” which is confined to the plaintiff’s own fault. Another
person’s own fault will not do, unless the law imputes it to the plaintiff, for example, on grounds of vicarious liability.
A dependant’s damages cannot be reduced on account of the contributory negligence of the deceased breadwinner,
for that is not the dependant’s own fault and the breadwinner’s fault cannot be attributed to him. For the same
reasons, a claim by a husband or father for medical expenses incurred on behalf of his wife or son will not be effected
by the latter’s contributory negligence, since this is his own personal claim.(Nieuwenhuizen NO v Union & National
Insurance Co. Ltd 1962 (1) SA 760 (W).
4) Contributory negligence cannot be attributed to a person who lacks the capacity to be held legally accountable for his
conduct. Thus a child below 7 years of age is irrebutably presumed to be incapable of fault (culpaeincapax) and so
also of contributory negligence. For such a child to be held contributorily negligent, it must be shown that the child
had the capacity for fault, taking into account factors such as his particular age, intelligence and maturity. Even then,

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 when it comes to apportionment, the child’s degree of fault will be considered as less than that of an adult in similar
circumstances.
5) There are two approaches to the apportionment of fault: (a) the first approach, is the mathematical method in which
the degree of each party’s deviation from the standards of the reasonable person is assessed separately as a percentage
and the two percentages are then compared as a ratio of each other and the respective faults is calculated.The degree
of the plaintiff’s fault did not automatically determine the degree of the defendant’s fault. The latter had to be
assessed separately and the two degrees of fault had then to be compared to determine the extent to which the
plaintiff’s damages should be reduced. If, for example, the court established that the plaintiff was 20% to blame (that
his conduct deviated 20% from the standard of the reasonable man) it did not automatically follow that the defendant
was 80% negligent. He may be found to be 90% to blame. The ratio between the plaintiff’s fault is therefore 20:90
or 2:9. The plaintiff’s degree of fault will be 2/11 x 100/1=18.2%, the defendant’s 9/11x100/1=81.8%. This means
the plaintiff will receive 100/18.2=81.8% of the compensation, whilst the defendant will receive 100/81.8=18.2 of
the compensation. The second approach is more direct and works on the assumption that the degree to which one
party is at fault automatically determines the degree of the fault of the other, (AA Mutual Insurance Association v
Nomeka 1976 (3) SA 45 (A). This is the approach that has been used in the Botswana courts. (IGI Botswana v A-G
Civil Trial no. 118 (unreported); (Botswana Insurance Co. (Pty) Ltd v Goulding [1987] BLR 529. In Makobo v
Central District Council [1989] BLR 459, in an action for damages resulting from a collision between two vehicles,
the court found that the negligence of the defendant was of a lesser degree. It held the plaintiff 60% to blame and the
defendant 40% to blame. Accordingly, the plaintiff was only awarded 40% of his claim and was required to pay 60%
of the defendant’s cost.
6) The law of contributory negligence will only operate to reduce the plaintiff’s damages where it is clearly established
that there is a causal link between this fault and the plaintiff’s injury. The onus is on the defendant to prove this
causal link. In Union National South British Insurance Co. Ltd v Vitoria1982 (1) SA 444 (A), the court held that the
failure to wear a seat belt did not constitute contributory negligence because the defendant could not prove that the

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 plaintiff would not have sustained the injuries, had she worn the seat belt. But in Vorster v AA Mutual Insurance
Association Ltd 1982 (1) SA 145 (T), it was agreed that if the plaintiff had worn a seat belt, she would probably not
have injured her face but would still have injured her foot. As a result, the court reduced the amount awarded as
damages for injury to her face by 20% to take account of her contributory negligence in failing to wear the seat belt.
The contributory negligence of the plaintiff is only relevant where it led to an increase in the damage suffered.

These defences or grounds of justification dictate that if the “wrongdoer” acted in accordance with the valid consent of the
breadwinner, or caused his death in self-defence, his act will not be wrongful either against the breadwinner or the
dependant.

Nevertheless, the infringement of the dependant’s interest in receiving support is also lawful because in the circumstances
the infringement cannot be regarded as unreasonable or contra bono mores.

The position is different where the breadwinner concluded a pactum de non petendo in anticipando with the defendant. It
makes a difference whether the dependant’s action is based on a delict against the breadwinner or against the dependant. If
the former approach is followed, the pactum should be a complete defence against the action of dependants. This is view is
not followed by the courts.

In Jameson’s Minors v CSAR 1908 TS 575, the breadwinner was killed in a train accident caused by the negligent conduct
of the railways. The breadwinner was a passenger in possession of what is known as “free pass” that excluded liability of
the railways in the specific circumstances. The court decided that such a pactum was no defence against the dependants’
action. This view can be accepted, on the one hand, because it accords with the theoretically correct approach to the
dependants’ action (according to which the pactum is res inter aliosacta with regard to the dependants’ action), and on the
other hand, because a breadwinner should in any case not be able to conclude a pactum de non petendo which burdens his
dependant, since such conduct is contra bonos mores.

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In terms of contributory negligence on the part of the breadwinner, the so-called last opportunity rule applies. This means
that if the breadwinner had the last opportunity to avoid the accident, this constituted a complete defence against the
dependant’s action. However, the dependant could succeed with his full claim if the third party had the last opportunity of
avoiding the harm. Contributory negligence of the breadwinner as a defence and the dependant’s damages would
have been reduced in accordance with the breadwinner’s degree of fault. If, by contrast, the dependant’s claim is
regarded as being based on a delict committed against the dependant himself, the fact that the breadwinner had the last
opportunity (or was contributorily negligent) could clearly not be raised against the dependant (res inter aliosacta). The
effect is that the breadwinner and third party are regarded as joint wrongdoers as against the dependant and he can,
therefore, claim his compensation in full.

Volenti non fit injuria

Consent as a ground of justification is expressed in the maxim volenti non fit injuria – which means a willing person is not
wronged. Where the consent is freely and lawfully given by a person who has the legal capacity to give it, this will
effectively justify the conduct consented to, making lawful the infliction of the ensuing harm. As the Botswana Court of
Appeal pointed out in Rebeetsweng v Botswana Motor Vehicle Insurance Fund [1999] 1 BLR 105, consent as a ground of
justification is usually applied with great caution and circumspection and the general tenor of decisions is not to easily
accept that the defence of volenti has been established.

An Analysis of Rebeetsweng

The appellant had asked for and was given a lift in a motor vehicle insured by the respondent (Botswana Motor Vehicle
Insurance Fund). The vehicle was involved in an accident and as a result the appellant sustained injuries, for which she
claimed damages against Botswana MVIF. The respondent raised the defence of volenti non fit injuria to the claim of the
appellant.

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Voelnti non fit injuria. A person who willingly consents to the defendant’s act, in the form of either a specific harmful act
or an activity involving a risk of harm, cannot complain that a delict has been committed against him. This principle
well known to Roman and Roman-Dutch law, is commonly expressed in the maxim volenti non fit injuria.

Volenti non fit injuria, whether in the form of consent or voluntary assumption of risk, is a ground of justification. The
standard requirements are knowledge, appreciation and consent. If the plaintiff consented to the act or assumed the risk,
the defendant acted lawfully, without infringing the rights of the plaintiff, and can therefore not be held liable.

The views of defendant (Botswana Motor Vehicle Insurance Fund)

The respondent sought to rely exclusively for its denial of liability on the following averments in its plea:

 At all times material to the happening of the said accident the said Pelaelo (driver of the vehicle) was under the
influence of alcohol to such an extent that his ability to drive the said motor vehicle was materially impaired thereby
and in consequence thereof there was a danger of accidental injury resulting therefrom to persons such as the plaintiff
travelling on the said vehicle driven by him.
 The plaintiff was fully aware of the risks involved in traveling on the said vehicle, continuing the journey in the said
vehicle during which the said accident occurred.
 Despite the knowledge and whilst appreciating the risk, the plaintiff nevertheless continued travelling on the said
vehicle.
 The defendant therefore pleads that the plaintiff consented to be subjected to the risk of injury, and that the defendant
is therefore not liable for any loss or damage suffered by the plaintiff.
 It should be noted that the respondent did not plead contributory negligence on the part of the appellant or seek to
invoke the provisions of the Apportionment of Damages Act.
 The court held that the plaintiff is precluded to claim damages. She accepted and consented to the risk of injury to
herself.
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  JA Steyn avers that the plainitff’s inability to take reasonable steps when she foresaw the possibility of harm to
herself, lies to be determined from a subjective approach. Her inability to appreciate a danger which was foreseeable
was in a way self induced. The appellant herself was negligent in not ordering the driver to stop, to disembark and to
seek another lift. “Thus in my view, I think the plaintiff appreciated the nature and extent of the risk and voluntarily
accepted it by continuing the journey inspite of the cumulative factors which she realised, knew and appreciated.
Judge Steyn therefore drew the inferences that the defendant had succeeded in proving that the plaintiff was volens.
If contributory negligence had been pleaded, the court may well have found such to be present and to have
apportioned damages appropriately. However, it was not pleaded and the issue does not arise. This is the renditions
of the court a quo.
 Judgement of Court of Appeal: In Court of Appeal it is stated the court a quo erred. The appeal court stated that
the appellant had complained about the way in which the driver was handling his vehicle. She was reassured
by him and appeared to have accepted that reassurance. The appellant knew that the irregular driving was
attributable to the alcohol which the driver had consumed. The appeal court found it difficult on these
grounds to determined a consenting state of mind on the part of the appellant. For these reasons the court
conclude that the court a quo should have dismissed the defence of volentinn fit injuria on the grounds that the
respondent had failed on a balance of probability to prove the requisite elements of knowledge, appreciation and
consent. It is ordered by the appeal court that the court a quo should therefore have entered judgment for the plaintiff
and should have proceeded to determine the quantum of her damages. The appeal succeeds with costs. The
judgment of the court a quo is set aside and in its stead is ordered: “Judgement for the plaintiff with costs. The matter
is back to the court a quo to enable it to determine the quantum of the appellant’s damages.”

Agreement not to sue

Grounds of justification deal with those special circumstances that either exclude the wrongfulness of the defendant’s
conduct, or mitigate his culpability in relation to the plaintiff or simply subvert the plaintiff’s right to sue him.

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As the court put it in Clarke v Hurst 1992 (4) SA 630 (D) 650: “…the stereotyped grounds of justification are specific
grounds of justification of otherwise wrongful conduct which with the passage of time have become crystallized, with their
own rules limiting the scope of their application.”

Because the violation of the plaintiff’s interests is not only unreasonable but contra bonos mores, grounds of justification
can be considered as those circumstances in which society is prepared to condone such unlawful conduct and is therefore a
reflection of society’s legal convictions based on public policy.

Guided by the fundamental test of reasonableness, whether expressed as the boni mores, or the legal convictions of the
community, or public policy, courts may create new situations justifying the defendant’s apparently wrongful conduct. In
the final analysis, whilst the grounds of justification may indicate that the defendant was acting within the confines of his
legal rights, the onus of proving the existence of such a ground of justification rests entirely on the defendant.

ILLEGALITY OF EARNINGS

Two important issues have arisen in the courts with respect to loss of earning capacity. One is whether a person who
derived his earnings from illegal activities can recover damages for the loss of support or, if such a person dies, whether his
dependants can recover damages for the loss of support derived from his illegal activities. The other is whether there can be
recovery for the loss of earning capacity of a child.

In Dhamini v Protea Assurance Co. Ltd 1974 (4) SA 906 (A) 915, it was held that a hawker who had never had a hawker’s
licence and who had been injured in a motor-vehicle accident could not, on considerations of public policy, be awarded
damages for loss of income.The Appellate Division, after analyzing that public policy precluded the recovery of
compensation for loss of income derived from a criminal or immoral activity. It held, that considerations of public interest,

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especially the interest of public health, played an important role in refusing or granting a hawker’s licence. Hawking was,
therefore, not only illegal without a licence, but the results of such trading would be legally unenforceable.

In Seletlo v Attorney-General [2005] 1 BLR 96, the appellant appealed against the disallowance of his claim for loss of
earnings or earning capacity. The appellant had been involved in a motor-vehicle accident in which he had received
injuries. He had been a hawker at the time of the accident, and had been operating illegally without a licence. The
respondent accepted full liability and left it up to the court to determine the quantum of damages under the various heads
claimed by the appellant. It was held inter alia, that not every illegality disentitled a plaintiff from damages derived
from illegal trade. However, the illegality complained of in the circumstances could not be said to be colourless. The
contravention of the regulations amounted to a criminal offence for which custodial sentence could be imposed. The act of
trading without a licence was a criminal offence and the process of licencing was not a mere formality. Public policy
demanded that a person deriving an income from such conduct should not be entitled to a right to claim damages. The
appeal against the decision not to award damages for loss of earnings was dismissed.

There must be a distinction between loss of unlawful income on the one hand, and the loss of earning capacity on the other
hand. If the plaintiff bases his claim for damages on a loss of his earning capacity, the fact that he has previously earned his
income through an unlawful activity should not necessarily block him from recovering damages unless it is shown that he
would in all probability never have employed his lawful earning capacity. This approach is evident from Ferguson v
Santam Insurance Ltd. 1985 (1) SA 207 (C) 208, where it was said: “Whereas a plaintiff who personally has lost ‘illegal’
income may be frowned upon by the court and non-suited on that account, non constat that a plaintiff who has lost earning
capacity, i.e. future loss of income, must be frowned upon. He has been injured and, if the injuries are permanent, his
earning capacity is affected.”

In Ferguson, Judge Joubert held that the legislation which the breadwinner had contravened (conducting a panel-beating
business without the requisite licence) was not a colourless statutory prohibition, but that important considerations of public

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interest such as hygiene, safety, fire precautions and the interests of residents in the area were protected by the legislation.
Applying the approach of the Appellate Division in Dhlamini, Joubert held that the business of panel beating without a
licence was not only illegal but the earnings derived from this activity were also illegal. The dependants were, therefore,
not entitled to recover damages for loss of support which had been derived from these illegal earnings.

Thus, an injured person who has earned income in an illegal manner has an earning capacity that exists independently of his
illegal activities. If this earning capacity is infringed, compensation is recoverable for it provided there is acceptable
evidence of the extent of the loss.

In Booysen v Shield Insurance 1980 (3) SA 1211 (E), the principle in Dhlamini was extended to deny a dependant’s claim
for loss of support where the breadwinner had earned his income out of a business carried on without a licence. As in
claims by the injured breadwinner himself, the dependants may succeed where the claim is based on the deceased’s earning
capacity and not his actual earnings. Thus, such claims have succeeded where it was shown that the deceased
breadwinner’s unlawful activity would not have continued for an indefinite period, (Fortuin v Commercial Union Assurance
Co of SA Ltd 1983 (2) SA 444 (C),the requirements of the legislation in issue could not have been successfully challenged,
(Lebona v President VersekeringsmaatskappyBpk 1991 (3) SA 395 (W), and where the unlawful activity was legalized
shortly after the death of the breadwinner.

It may have been recognition of these injustices (inherent in adopting an approach which denies any weight to the
distinction between a dependant’s claim for loss of support derived from an illegal source and the injured illegal earner’s
own claim for damages for impaired earning capacity) which motivated the judgment of Wilson J in Mankebe v AA Mutual
Insurance Association Ltd. Wilson J stressed that emphasis must be placed on the nature and the reason for the
prohibition. According to the judge, a court would not readily deprive a dependant of the right to recover damages, unless
the prohibition against the activities of necessity indicated that it was the intention of the legislature to regard such activities

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as being both illegal and invalid. Wilson J said that illegality of earnings is not enough to deny the dependants their
claim,public policy must indicate that the activity ought to be regarded as invalid.

Wilson J indicated that prospective earnings from a legal activity can be taken into account in assessing damages even
though the breadwinner’s present income-generating activity is technically illegal.

Where the claim concerns a child, the emphasis is usually placed on loss of earning capacity rather than loss of actual
earnings. Even then, the imponderables are multiplied and the process of assessment becomes very speculative. For
instance, the child, if he had not suffered the injuries may have become a successful and high-earning attorney or, despite
the best education, a truant and a failure.

Where the child is very young, the inquiry becomes extremely speculative, unless at that tender age the child had manifested
some promising exceptional talent.

When the child is older, say 14 or above, there is room for some informed guesses.

In Southern Insurance Association v Bailey 1984 (1) SA 98 (A), the court in computing damages suffered by a 2 year old
girl whose earning capacity had been totally destroyed when she sustained severe brain damage in an accident, used as a
guide what the child’s mother earned to arrive at what the child might probably have earned.

In Reyneke v Mutual and Federal Insurance 1991 (3) SA 412 (W), a reasonable amount was awarded for loss of earning
capacity to an injured 16 year old girl. The court was assisted by an industrial and counseling psychologist who gave
evidence of the girl’s possible vocation in the light of an investigation of her cultural and educational environment and her
choice of matric subjects.

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