SEKALE v THE MINISTER OF HEALTH 2006 (1) BLR 438 (HC)

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Citation: 2006 (1) BLR 438 (HC)
Court: High Court, Francistown
Case No: Civ Case No F889 of 2005
Judge: Chinhengo J
Judgment Date: 0000-00-00
Counsel:
L T Mothusi for the plaintiff. Defendant in default.
Flynote

Damages - Loss of support - Who entitled to - Persons married at customary law having mutual legal obligation of support and surviving spouse who was  dependent of deceased could mount claim for loss of support.

Headnote

The plaintiff claimed damages on behalf of himself and his minor children for loss of support and maintenance and other benefits following the death of the deceased. The defendant failed to enter an appearance to defend. It was alleged that the deceased had died as a result of the  negligence of the defendant's employees at the hospital where the deceased had given birth by caesarean section. The registrar had been ordered to assess the damages, which was subject to confirmation by the court.

 

Held: (1) The assessment of damages in personal injury cases and in claims for loss of support was often a complex task to perform. It was not unusual that a judge, acting conscientiously, varied the assessment made by the registrar.  

 

(2) The defendant's failure to enter an appearance to defend and to defend the action meant that the court had to accept the plaintiff's allegations of negligence and find them proved.

 

(3) The registrar had dismissed the claim of the plaintiff in his own right, finding that the plaintiff had not been married to the deceased and,  accordingly, that a legal duty to maintain the plaintiff did not exist. While no civil union had been concluded between the parties, the registrar had not been entitled, without any evidence as to the customary law of the plaintiff's tribe, to conclude that the plaintiff was not married to the deceased in terms of the customary law applicable to him. The plaintiff's evidence had not been such as to warrant its rejection without a thorough investigation.  

 

(4) Persons married at customary law had a mutual legal obligation of support and a surviving spouse who was a dependent of the deceased could mount a claim for loss of support.

Case Information

Cases referred to:

 

Archibald v Attorney-General [1991] B.L.R. 169, CA

Bester v Commercial Union Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A)  

Keletsheretse v Lekgoanyana (Civ App F19/05), unreported

Magibisela v Mogobe [2002] 2 B.L.R. 53, CA

Malope v Tshegofatso [2002] 2 B.L.R. 266

Masiba and Another v Constantia Insurance Co Ltd 1982 (4) SA 333 (C)  

Moshashane v Moalosi [2006] 1 B.L.R. 1

Patel v White Dove Garments (Pty) Ltd and Others [2006] 1 B.L.R. 47

Tangane and Others v Kaote and Others [2002] 1 B.L.R. 300

Zimnat Insurance Co Ltd v Chamanda 1991 (2) SA 825 (ZS)

Claim for damages for loss of support and maintenance. The facts are sufficiently stated in the judgment.  

 

L T Mothusi for the plaintiff.

Defendant in default.

Judgment

CHINHENGO J:  

 

By writ of summons served on the defendant at the Attorney-General's Chambers on 22 September 2005, the plaintiff claimed, on his own behalf and on behalf of his minor children, damages in the sum of P1 000 000. The claim which the defendant failed or neglected to defend is broken down as follows:  

      '(i)     Loss of support and maintenance

P330 666.67

      (ii)     Emotional shock and stress

P330 666.67

     (iii)     Loss of prospective and accrued benefits

P330 666.67

      (iv)     Funeral expenses

P8 000.00'

The amounts under the first three heads of claim are exactly the same. It is difficult to understand how that could be so. I think that had this matter been contested at a trial, the plaintiff would have been unable to justify the  amounts claimed under these heads or to justify that the amounts should be exactly the same. It seems to me that the plaintiff simply intended to claim a round figure of P1 000 000 whatever the odds against him. That is not a correct approach to take in matters of this kind because there are guidelines which must be followed in formulating such claims with some justification for the amounts thereof. The plaintiff's claim is no doubt  inflated having regard to the breadwinner's income which was very small. Kirby J warned against inflating claims for damages. In Malope v Tshegofatso [2002] 2 B.L.R. 266 at p 269B-C the learned judge said:

 

     'It appears to be the practice of some attorneys to raise their client's hopes by nominating unrealistic sums in damages, perhaps believing that the court may  make a substantial award by reduction from a high claim figure. This practice is highly undesirable and unfair to the litigant. It also results in claims being brought to the High Court which are well within the jurisdiction of the lower courts. Practitioners who insist on shooting for the stars when they are unlikely even to hit the moon run the risk of having their client's costs awarded on the lower magistrate court's scale.'  

This is a very pertinent remark which all legal practitioners must heed. I may add that the claiming of unrealistic sums of money is often an impediment to a settlement out of court because the plaintiff's expectations will have been raised so high that he cannot accept a much smaller figure which the defendant, acting reasonably, may propose as a settlement figure. Legal practitioners must adopt a responsible attitude in  formulating and computing claims so that all concerned can exercise their judgment befittingly.

 

The defendant did not enter an appearance to defend timeously. She did so on 17 November 2005 way out of time and after the plaintiff had applied for an interlocutory default judgment and had been granted the same on 27 October 2005. All the papers and notices required to be served in this  procedure had been properly served on her. After an appearance to defend had been entered out of time an application for directions was placed before Walia J who, on 18 November 2005, granted an order that the registrar should assess the amount of damages to be awarded to the plaintiff. At this hearing the defendant was represented by Mr Bogosi. Mr Bogosi admitted that an appearance to defend had been entered out of time and  implicitly that no action was taken in terms of Order 33 of the Rules of the High Court (Cap 04:02) (Sub Leg) to set aside the irregular entry of appearance. The learned judge exercised his discretion and ordered that the registrar should assess the damages. After that, despite notices served on her the defendant was in default at all subsequent hearings, that is, before the registrar and before me on 11 February 2006 when I dealt  with the application for a final judgment to be entered.

 

The damages awarded by the registrar was the sum of P440 890 together with interest at the rate of 10 per cent per annum plus costs of suit, subject to confirmation by the court.

 

I must observe that the defendant's failure to act in time and defend this action is be deprecated. The defendant is entrusted with the duty to defend the public purse so as to ensure that the government is not saddled with  liabilities which it may otherwise not have been burdened with if the defendant had properly handled and defended the case giving rise to the liability. The plaintiff's case left a lot to be desired in terms of the pleadings and the formulation of the claims such that had the case been astutely defended the result could well have been different. The defendant must therefore always ensure that all claims against the government are properly  and conscientiously defended by her staff.

 

The assessment of damages in personal injury cases and in claims for loss of support is often a complex task to perform. It is not unusual that a judge, acting conscientiously, varies the assessment made by the registrar. A reading of a case such as Archibald v Attorney-General  [1991] B.L.R. 169, CA shows quite clearly that the calculation of damages to be awarded in a claim for loss of support is involved and complex. In my view this difficult task should not be routinely assigned to the registrar. The registrar's office, especially the office at the Francistown High Court, has many other tasks to perform and as such the registrar is unlikely ever to have sufficient time to attend to so complex a matter as the assessment of  damages in a claim for loss of support.

 

Generally speaking I do not think that a court should routinely direct the registrar to assess damages in difficult cases. Apart from this, the process of obtaining final judgment becomes unnecessarily protracted. An application for interlocutory judgment is first made. Judgment is entered and then  an application for direction as to the method of assessment and the person to undertake that task is lodged. The application is usually granted with the direction that the registrar should assess the damages. Another application is then made to the registrar to fix a date and assess the damages. After the registrar has assessed the damages he issues a certificate to that effect and the plaintiff is yet again required to apply to court for confirmation of the award or assessment and for a final judgment to be entered. This procedure is, without doubt, protracted and costly to the  plaintiff. It can, in my view, be curtailed by requiring the plaintiff to apply to the court for a final judgment after an interlocutory default judgment has been obtained. Such application may be accompanied by an affidavit of evidence in proof of the damages sought or the plaintiff may give oral evidence himself in proof of the amount of damages claimed. I hope that the Rules Committee may find it appropriate to take this remark on board  when it reviews Order 36 of the High Court Rules.

 

Returning now to the facts of this case which are the following. The plaintiff was married to Nnoko Tlhowe (date of birth 23 April 1968) (the deceased). They had two minor children as at 7 November 2000 when the deceased was admitted to Deborah Retief Memorial Hospital, a health  institution run by the Ministry of Health. She was to give birth to a baby who is now the third of the three children in respect of whom the plaintiff claims damages for loss of support. A Caesarean section was performed on her on 14 November 2000, but sadly, she died thereafter as a result of the negligence of the defendant's employees as alleged in the plaintiff's declaration. The plaintiff alleged that the defendant's employees at Deborah Retief

 

Memorial Hospital were negligent in that, after the Caesarean section they failed to clean the deceased's womb and did not remove the placenta  which became infectious and caused septicaemia from which she died after transfer to Princess Marina Hospital. The post-mortem report attached to the declaration shows that the deceased's death was due to:

 

     '(1)     Septicaemia;

     (2)      Retained and infected placenta;  

     (3)      Acute renal tubular necrosis.'

 

In his other observations the pathologist noted that the uterus showed 'retained infected placenta' and that the deceased's left ovary had a 'benign cystic teratoma 8x6x5 cm'. The plaintiff alleged that the cause of death was septicaemia caused by the infected placenta. I think this is a fair, if not  entirely correct, understanding of the cause of death indicated by the post-mortem report.

 

The particulars of negligence alleged more fully appear in paras 5.1, 5.2 and 5.5 of the declaration which read:

 

     '5.1     The deceased was admitted to the Deborah Retief Memorial Hospital on the 7th November 2000 to undergo a caesarian [sic] operation. The operation was  performed on the 14th November 2000, representing a delay of one week. The defendants therefore failed to carry out the operation within a reasonable time when by virtue of the circumstances and the urgency of the matter it was apparent that an operation of this nature was necessary and inevitable.  

     5.2     After the operation, the defendant's servants forgot or failed to remove from the deceased's stomach/womb products of conception, more particularly the placenta was not removed. The defendant's servants failed or neglected to properly clean the deceased's womb leading to bacteria infection in the blood from which the deceased developed septicemia. Such infection subsequently resulted in the deceased's death. The cause of death is given as septicemia  F  as shown in the post-mortem report attached hereto and marked "C" which shows a retained infected placenta.

     5.5     The defendant's servants failed to communicate adequately or promptly the progress or prior steps they had made or taken in treating the deceased to the  Princess Marina Hospital on transfer of the deceased. It is also averred that the transfer of the deceased to Princess Marina Hospital was belated, regard having had to the deceased's worsening condition. The delay was, in the circumstances, inordinate.'  

 

The defendant's failure to enter an appearance to defend and to defend the action means that I have to accept the plaintiff's allegations of negligence and to find them proved. As such therefore the plaintiff's liability is established. It is the amount of damages only which has to be computed, a task which involves having to examine the registrar's assessment.

 

In order to lay a proper and complete foundation for his action the plaintiff alleged not only that he was married to the deceased and that the minor children were his together with her, but he also said that he and the  children were wholly dependent on her. Paragraphs 7, 8 and 9 of the declaration are relevant in this connection. Therein the plaintiff said:

 

     '7.      The deceased had a legal duty to support and maintain the plaintiff as she was legally married to him and she had an income from which she supported  him.

     8.       The deceased had a legal duty to support the minor children at all material times being their biological mother who are indigent and have no independent means of support.

     9.       The deceased had she not been killed, would have been legally obliged to support the plaintiff and the minor children and she would have been able to do  so in the sum of P1 500 (Pula One Thousand Five Hundred) per month.'

 

It will be seen that in addition to claiming similar amounts under the first three heads of claim which, as I have said can hardly be justified, the  plaintiff did not specify the deceased's income. The nearest he came to doing so is when he stated in para 9 above that the deceased would have maintained the plaintiff and the children at the rate of P1 500 per month. Adopting a benevolent

construction of para 9 I will accept that the sum of P1 500 would have been available by her to the plaintiff and the children every month whatever her source of income was.

 

The plaintiff gave evidence at the hearing before the registrar. He said that he was unemployed and had been so unemployed before the  deceased's death. He said that he was as much a dependant on the deceased as were the children. He also said that the deceased was in business running a hair salon. He however did not give any information as to the viability or income of the business or as to whether it is still in operation and providing an income to the family. His evidence as to how desperate he and the children now are would indicate that the hair salon  business no longer exists. The plaintiff also said that he, the deceased and the children lived in rented accommodation as a family unit and that his parents and the deceased's parents lived in the same village, Sikwane, in the Tshukudu Ward.

 

The registrar dismissed the plaintiff's claim for loss of support in so far as it related to him alone and awarded the sum already mentioned in favour  of the children only. It will be apparent that the plaintiff did not, in his declaration or evidence, split the various claims as between himself and the children or as between the children. He lumped all the claims together. It is desirable always to specify how much is claimed in respect of the surviving spouse, ie, the plaintiff and each of the children because the spouse's share of support is greater than that of any one of the children and  the amount to be claimed for each of the children is different and depends on the child's age and the period over which such child requires support. In failing to split the amounts claimed in the manner I have outlined the plaintiff's declaration was deficient.

 

In dismissing the claims by the plaintiff in his own right the registrar found that the plaintiff was not married to the deceased, let alone legally married to her. He held that the deceased had no legal duty to support or maintain the plaintiff. I will examine the plaintiff's evidence on this point and  determine the correctness of the registrar's rejection of his claim.

 

The plaintiff said that he was married to the deceased in terms of customary law on 2 May 2000 and that he had documentary proof of that. He produced a letter in Setswana from Sikwane Customary Court dated 5 February 2001. There was no English translation of this letter. I asked the  court interpreter to translate it into English.

That translation is now attached to the original letter.

In support of his decision to reject the plaintiff's claim for loss of support the registrar said:

 

     '... but I cannot uphold the plaintiff's claim in his personal capacity for the following reasons. First, in my view, plaintiff's evidence about his marriage to the  C  deceased was clearly false. He first said they were married and that he had documentary proof of that, but on being asked to produce the letter from Sikwane Customary Court which only confirmed that "he had paid bogadi in order to lawfully adopt the children as their mother had passed away," (my [that is, the registrar's] interpretation of the first sentence on the third paragraph). This to me is no proof of marriage and is a practice quite common in Botswana. I  accordingly sought further clarification from plaintiff on this point and for the first time he mentioned that he had only married under customary law where only patlo was done. If this had in fact been the case, it is my considered view plaintiff would have started with it, and not sought to prove marriage in the manner he  did. It is my view therefore that plaintiff was never married to the deceased and therefore had no right to maintenance or support by her. His claim in his personal capacity therefore must fail.'

It seems to me that the registrar recognised and accepted that the plaintiff had paid bogadi and that patlo had been done, but he came to the  conclusion on the facts that 'the plaintiff was never married to the deceased'. This begs the question as to how at customary law a man becomes married to a woman. In Moshashane v Moalosi [2006] 1 B.L.R. 1 at p 3 Nganunu CJ said that in Botswana, the customary law is complex because it 'consists of a series of tribal customary laws whose number equates to the number of tribes in Botswana who have their own separate  customary laws'. He thus recognised that the customary law of one tribe may be different from that of another. Taking a cue from the Chief Justice, I stated in Keletsheretse v Lekgoanyana (Civ App F19/05), unreported that customary law emerges from what people do and what they believe and accept to be binding on them. As such, therefore, the customary law of a given tribe must be what that tribe accepts as a customary law binding on  it. In this case the registrar decided that the plaintiff was not married to the deceased even though the plaintiff had said that he was married at customary law and that, following patlo the deceased had been given to him as his wife. Without any evidence as to the customary law of the plaintiff's tribe, I do not think that the registrar was entitled to reach the conclusion that the plaintiff was not married to the deceased in terms of the customary law applicable to him.

 

It is necessary I think to examine closely the plaintiff's evidence on the issue of his marriage. The following appears in the record of proceedings  before the assistant registrar and master of the High Court.

 

     'PW 1 xd by ARM

     I married my wife in 2000, in May on the 2nd day thereof. She passed away on 3rd December 2000. I can read and write.  

     [Shown letter from Sikwane Customary Court dated 5th February 2001]

     ARM: Is this a certificate of marriage?

     A. No. It's for payment of bogadi. We only had a customary law marriage. This means "patlo" only where the parents met and I was given the wife in May 2000.

     Sikwane is my home village. We don't have a home there. However my parents have a home in Sikwane. My wife's parents have a home in Sikwane. We do not  stay with the parents but in a rented place.'

The plaintiff's evidence makes the following points which are crucial, namely: that he married his wife on 2 May 2000; that the marriage was in  terms of customary law; that patlo was done and he was given the wife, that is, formally recognised as the husband of the now deceased and that he and his wife lived in rented accommodation in the same village where their respective parents reside. Schapera in his work A Handbook of Tswana Law and Custom deals with the issue of marriage at customary law. At pp 125-126 the learned author says:  

 

     'For a marriage to be regarded as lawful and as carrying with it the rights, duties and privileges accorded by society the parties must meet certain conditions.... Apart from various rules governing the selection of a wife the main essentials of a marriage contract among the Tswana are: (a) mutual agreement between the two families concerned, as reflected in the formalities of betrothal; and (b) cattle, to the bride's family by the family of the bridegroom. These cattle are known as  bogadi. Their transfer should normally be associated with the customary wedding festivities. It cannot be maintained, however, that the omission of these festivities would legally invalidate the marriage. Nevertheless, by their very publicity they portray and give expression to the legality of the new relationship. While not in themselves essential legal conditions, they serve to emphasize the legal nature of the marriage.  

     In recent times various changes have come about in the nature of Tswana marriage. There has been, on the one hand, the introduction of European civil marriage, carrying with it various consequences and implications not found in the old Tswana life. On the other hand, there have been changes in the usages relating to the  bogadi transfer. Among the Ngwato these usages have been completely abandoned, except by some of the subject communities. Among the Kgatla, Malete and other tribes, in what appears to be the majority of cases nowadays, the young couple generally live together for some time before bogadi is actually transferred. Till then their union is legally not complete, nor is their status the same as in those cases where the bogadi has already been transferred. But both here and among the Ngwato, so long as the consent of both families has been formally obtained and expressed through the betrothal ceremonies, the  cohabitation of the man and the woman constitutes a recognized form of union establishing certain legal rights and duties on both sides.'

The learned author states that the conditions mentioned in the above passage 'serve immediately to differentiate a recognised marital union from  other forms of sexual cohabitation'. In regard to the transfer or payment of bogadi the author says the following at p 143:

 

     'As already shown, it may be many years before bogadi is paid; but in the meantime the wife's people must patiently wait. But as long as bogadi is not paid, the union between a man and a woman, although considered regular if based upon the approval and consent of both families, is nevertheless not yet held to be a  complete marriage. The children of the union are in consequences not legally the children of the man. They belong to their maternal uncle, who can claim them at any time, this being the only means by which he can enforce the payment of bogadi; they go with their mother in case of separation; and their father, generally speaking, has no rights over them at all.'  

It seems to me, that the main essential of a customary marriage is the consent of the two families concerned. Once that consent has been given accompanied as it usually is by certain formalities and festivities which give expression to the legality of the new relationship, the man and woman are then recognised as husband and wife even if bogadi has not been paid. See Tangane and Others v Kaote and Others  [2002] 1 B.L.R. 300 where Chatikobo J relied on what Shapera says in his book (op cit) regarding bogadi and the effect of its non payment on the status of the children of the union. At p 305F-G he said:

 

     'The second point, one which flows from the passages just quoted, is that the mere payment of bogadi by a person in a formal recognized union, does not have  the effect of bastardising the children of the union. It merely creates a debt, which if not paid by the husband in his lifetime, is transferred to his children, failing them, his to his brothers.'

Now, in his declaration and in his evidence the plaintiff clearly stated that he was married in terms of the customary law, that he had two children  with the deceased and lived with her and the children as a family, that patlo had been done. Patlo, it seems to me, is a crucial element of a customary marriage and once it has been done the man and the woman are regarded as husband and wife. In many customs of the peoples of Southern Africa, and that is the case with Batswana, there is no insistence that bogadi or lobola is paid immediately or all at once. Bogadi is  generally viewed as one of those elements which keep the son-in-law close to the family of his wife because he recognizes that until it is paid he has not discharged his obligations in full. Though the non-payment has certain consequences in regard to the status of children and the status of the man and woman vis--vis their respective families it is not an impediment to the formal recognition of their union as a marriage. In fact the two are regarded as husband and wife. The letter from the Sikwane Customary Court confirming that the plaintiff paid two  head of cattle (as bogadi) reflects only the taking of a necessary step to regularize the status of the children.

 

The letter reads:

 

     'TO WHOM IT MAY CONCERN

     RE EPHRAIM RABOIYANE SEKALE ID NO. 531413409  

     This is to certify that on this date Mr. Ephraim Raboiyane Sekale produced two herds of cattle as bogadi. These are a male beast tlhaba in colour and a cow tshunyana e e bohibidu in colour. They are branded L S

     5

     and ear marked motlhala wa kgama and sekei on the right ear.  

     Mr. Ephraim R. Sekale produced these cattle in order to adopt the children since their mother was deceased. These children are Boitshoko Tlhowe, Omphile Tlhowe and Banyana Tlhowe.

     The cattle were received by the deceased's mother, Ms Mmampoba Joyce Tlhowe and Mr. Malebye Elias Motsilenyane of ID No. 947011404.

     This was witnessed by Israel Sekale of ID No. 431413400, who is the elder brother to Ephraim Raboiyane Sekale.  

     Thank you.

     Yours truly,

     M. Pilane/Headman'

The purpose of the payment of the two head of cattle was purely to regularize and legitimize the children. A customary law marriage is not proved  by the production of a marriage certificate as is the case with a civil marriage. It is proved by evidence tending to show that the persons concerned were married in terms of the customary law of the tribe concerned. The plaintiff's evidence was not such as warranted its rejection without a thorough investigation. And such investigation could not be carried out at the stage of the assessment of damages in an undefended action. Had  the defendant defended the action, it was her who would have challenged the plaintiff's allegation that he was married to the deceased in terms of the customary law.

 

I have to emphasise that the order by Walia J was that the registrar should assess the quantum of damages after receiving viva voce evidence. The  assistant registrar's task, as it could have been that of any deputy registrar or other assistant registrar mandated thereto by the registrar, was simply and purely to assess the quantum of damages and not to peer into the plaintiff's declaration and seek to establish as correct the facts therein stated. The order by the learned judge was founded upon a satisfaction that the declaration disclosed a cause of action and that the facts  therein stated were not disputed. In my view, it was incompetent for the registrar to seek to establish as correct the facts alleged by the plaintiff in his declaration at the stage of assessing damages unless these facts were necessary to help him to compute the damages. The fact of marriage was not. For this reason I find that the registrar's inquiry into whether or not the plaintiff had been married to the deceased was as unnecessary as it was irrelevant to the task assigned to him by the court. I am therefore satisfied that the factual averments by the plaintiff as they appear in his declaration must stand.  

 

The next question which arises is whether persons married at customary law have a mutual legal obligation of support and whether a surviving  B  spouse who was a dependent of the deceased spouse can mount a claim for loss of support. I think the answer is yes. In Zimnat Insurance Co Ltd v Chawanda 1991 (2) SA 825 (ZS) the court held, as per the headnote, that a widow of an unregistered customary union whose husband has been killed by an act of negligence or other unlawful act has a claim in law for damages for loss of support against the person who caused the death or who employed the person who caused it or who had insured him against such contingency. The full bench of the Zimbabwean Supreme Court cited South African cases where the court '... was prepared to extend the principles and ambit of the dependant's action beyond that given to either  spouse of a lawful marriage to whom the duty of support arises by operation of the common law, to the customary wife to whom the duty of support arises by virtue of legislation'.

 

I am not aware of any legislation in Botswana which gives rise to a duty of support to spouses in a customary law union or marriage.  D

This however is, in my view, irrelevant because the principal question is whether persons married at customary law have a mutual obligation of support. I have no doubt that if customary law recognizes as a marriage the union of two persons it also must impose a duty of mutual support on the spouses. In that sense it becomes a legal duty of support. Certain remarks by the court in Chawanda's case (supra) are worth repeating here  because they are immensely relevant to the issue whether or not the customary law husband or wife is in a class of dependants entitled to sue for patrimonial loss or, if he or she is not in that class, whether or not it is desirable to extend the classes of such dependants to cover them. I will quote as appropriate their Lordships' remarks at pp 831A-833A:  

 

     'A determination of whether the proposed liability is justified calls for a pragmatic assessment of the facts and the merits of the case and upon the policy of the law. This Court must ask itself if paying due and proper regard to the notion of justice and the interests of the litigants, balanced against the community as a whole, it is socially desirable to impose liability in the particular circumstances....  

     In any action brought by a customary law wife against the person responsible for the death of her customary law husband and supporter, the parties would be limited and readily identifiable. Indeterminate liability would not arise since only actual pecuniary loss may be recovered. Damages for loss of support resulting from the death of the breadwinner, unlike instalment payment of maintenance which are subject to variation dependent upon change in the circumstances of the  parties, are awarded in a lump sum for past and future deprivation of support. This type of action would be confined within reasonable and manageable bounds and not fraught with what has been described as "overwhelming potential liability". There would not be a multitude of claims brought against one defendant, but a single claim in every instance....

     In our opinion it is socially desirable that liability be imposed upon the wrongdoers. Quite apart from the legal right of the customary wife to support, the  A  Legislature has accorded her the status of a widow for the purpose of awarding her compensation under the War Victims Compensation Act 1980, and the Workmens Compensation Act Chap 269, as recently amended.... Thus a fair measure of protection is now available to her. What is offensive to one's sense of  justice is that upon the wrongful killing of a breadwinner the position of the widow, who had married according to customary law, should differ adversely from that of another who had married according to civil rites, albeit both suffer the same kind of loss. As our law accepts customary unions, it should endeavour to secure equality to the parties thereto and discard the intolerable affectation of superior virtue (to borrow a phrase) inherited from the colonial past. To continue to exhibit  a vestige of condescension and conservatism towards customary law unions ill befits, and is repugnant to, the current and unyielding movement by the State to remove legal disabilities suffered by African women....

     Moreover, the recognition of a customary law marriage for the purpose of affording a widow the right of relief under the dependant's action would not ... "disturb the  incidence of our own monogamous system". As no clash occurs between the two forms of marriage, an extension of the lex Aquilia to meet the prevailing injustice will not in any way endanger the system of monogamy.

     To the contention that if this Court were to so modify the law it would be interfering with the prerogative of Parliament, we would answer that an affirmative decision  will not make new law, but simply have the effect of applying the modern understanding to the lex Aquilia in a new specific situation.

     Even if confirmation of the appellant's liability to the respondent should meet with disapproval as being an encroachment upon the discretion reposed in the law-giver to change the law, we would strongly defend the Judiciary's right to do so. Law in a developing country cannot afford to remain static. It must  undoubtedly be stable, for otherwise reliance upon it would be rendered impossible. But at the same time if the law is to be a living force it must be dynamic and accommodating to change. It must adapt itself to fluid economic and social norms and values and to altering views of justice. If it fails to respond to these needs  and is not based on human necessities and experience of the actual affairs of men rather than on philosophical notions, it will one day be cast off by the people because it will cease to serve any useful purpose. Therefore the law must be constantly on the move, vigilant and flexible to current economic and social conditions....

     Today the expectations amongst people all over the world, and particularly in developing countries, are rising, and the judicial process has a vital role to play in  moulding and developing the process of social change. The Judiciary can and must operate the law so as to fill the necessary role of effecting such development....

     It sometimes happens that the goal of social and economic change is reached more quickly through legal development by the Judiciary than by the Legislature. This is because Judges ... do not merely discover the law,     but they also make law. They take part in the process of creation. Law making is an inherent and inevitable part of the judicial process.  

     The opportunity to play a meaningful and constructive role in developing and moulding the law to make it accord with the interests of the country may present itself where a Judge is concerned with the application of the common law, even though there is a spate of judicial precedents which obstructs the taking of such course. If Judges hold to their precedents to closely, they may well sacrifice the fundamental principles of justice and fairness for which they stand....' (My  emphasis)

I am fully in agreement with these remarks. I observed in Keletsheretse's case (supra) at p 10 that there is a need to develop customary law and align it, as far as possible with the common law. In this case the plaintiff's evidence is that he lived with the deceased as husband and wife together  with their children in terms of the customary law of the land. They had rented accommodation of their own. The plaintiff and the children were wholly dependent and supported by the deceased. If one discards 'the intolerable affectation of superior virtue', and avoids

'condescension and conservatism towards customary law unions', there would be no reason why a customary law spouse, such as the plaintiff in this case, should not  be afforded relief where his customary wife has been killed because of the negligent act of another person. I am satisfied that the plaintiff herein should be accorded the same protection as is accorded to a spouse in a 'lawful marriage'. I therefore find that the plaintiff, in his personal capacity, is also entitled to the relief sought in these proceedings.  

 

The plaintiff lodged a combined claim for himself and the children and stated that the deceased made available to him and the children, monthly, the sum of P1 500. I will proceed on the basis that the plaintiff is entitled to a bigger share than any of the children whose shares, among themselves, must be equal. In this regard Visser and Potgieter in Law of Damages at p 379 states that:  

 

     'It is often difficult to determine this amount accurately (ie, amount furnished by the breadwinner before his death) where the breadwinner has maintained a whole family. In such a situation the income is divided into fractions and allocated in equal shares to a husband and wife and as half shares to each child. Thus, for example, where breadwinner X left a wife and two children a one-third share will be allocated to the widow and one-sixth share to each child.'  

The amount of P1 500 is what in the declaration is said to have been available to the deceased's dependents to the deceased's exclusion. Mr Mothusi handed over to the registrar heads of argument at the end of the hearing wherein he abandoned the claim for 'loss of prospective and  accrued' benefits as a separate head and, in effect, incorporated that amount into the claim under the head of 'loss of support and maintenance'. This increased the claim under this head to P670 000. This was done without any amendment of his pleading. Mr Mothusi also abandoned the claim for funeral expenses without amending his declaration. But in giving evidence before the registrar, the plaintiff persisted with his claim for funeral expenses. This exposed the danger inherent in attempting to amend a claim at  the stage of making submissions to a court and without consulting the litigant. The abandonment of the claim for funeral expenses was a reduction of the plaintiff's claim. Because the plaintiff persisted with his claim, the registrar was not entitled to throw it out only on the basis of Mr Mothusi's  submission. The claim is alive and I will consider it.

 

Mr Mothusi's reason for abandoning the claim for funeral expenses was that:

 

     'Funeral expenses can only be claimed by the breadwinner. This takes us back to the issue of the duty of support and the corresponding right of support. If in the  present case, the husband was a dependant of the wife together with the children, then he cannot turn to claim compensation for funeral expenses when he has already stated that the deceased was the sole breadwinner who owned him the duty of support. Such would be contradictory.'

I cannot agree with this reasoning. If a dependant, upon the death of the breadwinner due to the negligence of another, incurs a cost in connection  with the burial or cremation of the breadwinner, he is entitled to claim that cost so long as he can show that he, indeed incurred it. It does not matter if he had to borrow the money from some other person or that he used whatever savings there were. I will therefore consider the plaintiff's claim for funeral expenses and dispose of it immediately.  

 

The claim for funeral expenses was readily amenable to proof by the production of invoices and receipts, for example, in respect of the cost of food and drink and the coffin. No such proof was handed in because the registrar was already of the view that that claim had been validly abandoned. It is, however, a matter of fact that the deceased was buried. As such a funeral occurred. Even if there are no proofs of expenditure, the court must  decide on the basis of what is before it. An expense of P8 000 for a funeral seems to me to be reasonable. A coffin is ordinarily bought and so is food and drinks. The food and drink are purchased over a period of time. Transport costs are usually incurred. Overall I do not think that the amount claimed for funeral expenses is inflated or unreasonable. I will award this claim to the full amount.  

 

The registrar justified his award of P440 890 for loss of support and for emotional shock and stress by saying:

 

     'While I accept the plaintiff's evidence on this head (ie, emotional shock and stress) my observation on the figure of P1 000 000 above still stands on this one as  well. In my view the figure of between 1/2 and 2/3 of the amount claimed should do. My assessment however will be more skewed towards the lesser figure because in my view, plaintiff could mitigate his losses by moving the children to the school at Sikwane and seeking accommodation where he won't pay rent as both his parents and deceased's parents live and have houses in Sikwane which is his home village.

     In the end therefore I award damages to the plaintiff representing the     children in the amount of P220 445 for loss of support and in the amount of P220 445 for emotional shock and stress. The total amount of damages granted to  plaintiff as guardian of the minor children therefore is P440 890 with 10% interest from the date of final judgment plus costs, subject to confirmation by court.'

The figures upon which the registrar relied for assessing damages for loss of support were the figures given by the plaintiff as being the needs, in  monetary terms, of the three minor children. The plaintiff's evidence which the registrar accepted and on which he based his computation were the following monthly or yearly expenditures purportedly incurred or to be incurred by the plaintiff for the children:

 

-         P900 per month as wages for the maid;  

-         P1 000 per month for food;

-         P65 per each of the two school going children per term for school fees;

-         P2 000 per child per year for school uniforms;

-         P2 000 per child per year for personal clothes;

-         P3 000 per term school fees for the English medium school 'where they had intended to take their children' and  

-         P800 per month per child for transport to school.

 

The registrar considered that these amounts were generally inflated. He rejected a total claim of P72 000 for school fees at an English Medium school because in his opinion there was no need to take the children to such a school and remove them from a cheaper school which they were  attending and had attended during the breadwinner's lifetime. He calculated that the children required P124 760 per year based on the plaintiff's evidence on their requirements for school fees, food, clothing, etc. He determined that the expenditure was over-inflated. But all that the registrar said in justification of his award is what I have quoted above.  

 

The registrar fell into grave errors of principle and law in assessing the damages. First, as I have shown, he was wrong to reject the plaintiff's claim made in his personal capacity and the claim for funeral expenses. Second, without satisfying himself as to whether the specific requirements for such action were satisfied (for example, reasonable foreseeability) he awarded a large sum for emotional shock and stress. I have not found any  precedent in this jurisdiction for such a claim but Visser and Potgieter (op cit) at p 219 suggest that such an action is available to a person who suffers emotional shock as a result of the death or injury of another provided that the specific requirements for such action are satisfied. Two South African cases are persuasive for the view that damages for emotional shock are claimable. These are Bester v Commercial Union  Versekeringsmaatskappy van SA Bpk 1973 (1) SA 769 (A) and Masiba and Another v Constantia Insurance Co Ltd 1982 (4) SA 333 (C). Both these cases however stress the importance of foreseeability as a criterion for recoverability of loss caused by negligence. I do not think that it can be held that the defendant's servants could have reasonably foreseen that the plaintiff or the children would have suffered shock. It was also necessary for the plaintiff to have led some evidence as to the nature and extent of emotional shock which he and the children suffered and to have excluded the third child who was born as a result of the  fateful Caesarean section from the claim. This child could not have suffered emotional shock at that very early stage of his life. I also do not think that the other two children, the oldest of whom was just over four years old would have suffered emotional shock and stress. No basis was  therefore laid to enable the registrar to compute the damages under this head and the plaintiff's mere say so was not sufficient proof of the damages suffered. He should have led evidence that he suffered shock and expert witnesses could have helped him in this regard. I will grant absolution from the instance in respect of the plaintiff's claim in his personal capacity for emotional shock and stress and dismiss the claim under the same head in respect of the children.  

 

Third, the registrar approached the assessment of damages for loss of support as if the claim was an ordinary claim for maintenance where the needs of the dependants and the breadwinner's monthly expenditure on them play a prominent role. In a loss of support claim the following basic information is required in calculating of damages: the period during which the dependants have been deprived of support, the breadwinner's net  D  income over that period, the deceased's income which would have been devoted to the dependants. These are the most important considerations - see Visser and Potgieter (op cit) at pp 376ff.

The registrar did not have any figure on the deceased's net income per year as such. In his judgment he said:  

 

     'Plaintiff is himself not working and not in a position to provide all those needs (ie, needs of the children). According to him the deceased operated a salon at Sikwane but he hasn't specified the income made therefrom either monthly or yearly.'

He went on to say that the only figures which the plaintiff provided were on the amounts required for the children's schooling and upkeep. The  reference to mitigation of damages shows that the registrar was proceeding on a wrong principle.

 

The expenditures mentioned by the plaintiff were not related to the deceased's ability to meet them. I have earlier on said that I will take a benevolent  construction of para 9 of the plaintiff's declaration and construe the averment therein that the deceased would have been able to support the plaintiff and the children at the rate of P1 500 per month as reflecting that that amount was a part of her income which she made available to her dependants and also that it was a net figure. Proceeding on this basis therefore the deceased made available to her dependants the sum of P18 000 per year. This amount is very much lower than the alleged annual amount of support which the dependants require now. There is no way in  which the deceased could have been able to satisfy their needs.

 

At the time of her death the deceased was 32 years old. Therefore the period during which the dependants were deprived of support will be computed on the basis of the period over which it can reasonably be assumed the deceased would have been able to continue to run the salon and to support them. As there is no information as to the viability of the business and whether or not its income was likely to grow or fall, I will accept the figure of P1 500 as  the amount she would have made available during the whole period of support. In the case of the plaintiff this period is the period of their joint expectation of life during which she could provide the support. I will fix that period to be up to the age of 70 years for the plaintiff based on the assumption that until that age the deceased would have been able to run the salon and earn the income for her dependants. See Patel v White  Dove Garments (Pty) Ltd and Others [2006] 1 B.L.R. 47. The children would have been supported by the deceased until each of them attained the age of 21 years. See Magibisela v Mogobe [2002] 2 B.L.R. 53, CA at p 55D where it is stated that the obligation to support a child lapses when the child reaches the age of 21 years or marries, or becomes self-supporting. This translates to 17 years for the oldest child Omphile Tlhowe (born on  2 June 1996), 18 years for the second born child Boitshoko Tlhowe (born on 4 December 1997) and 21 years for the last born child Banyana Tlhowe (born on 14 December 2000). The period of dependence of the plaintiff in terms of my calculation and without factoring any contingencies would be 38 years. Granting 1/2 share to the plaintiff and about 1/5 share to each of the children it means that, of the amount available annually to  them, the plaintiff would take P6 000 and each child P4 000. The gross amount available to the plaintiff over the joint expectation of life of 38 years is therefore P228 000, for the first child over 17 years is P68 000, for the second child over 18 years is P72 000, and for the third child over 21 years P84 000. These figures must all be reduced by a certain percentage because its immediate receipt gives the dependant an improper advantage if the interest that may be earned on it is not taken into account. In other words these figures must be reduced to their present values.  

 

I will use an average rate of 5 per cent per year to discount the figures over the period of dependence.

 

In my calculation, after discounting the figures, the plaintiff will be entitled to P22 200, the first child P64 600, the second child P68 400 and the third  child P80 000. I will further reduce the amount payable to each child to take into account contingencies of life such as that the breadwinner could have sooner died or become unable due to illness to provide support. I will use a flat rate of 10 per cent. For the plaintiff I will use a higher rate of 25 per cent considering that he could not possibly have remained a dependant of the deceased all his life and also taking into account other  contingencies. He is not disabled and it is not unreasonable to assume that at some point in time he would have become self-supporting or less dependent on the deceased's income. The net result is that the award to the plaintiff is P166 500 and to the children the individual awards are P58 140, P61 560 and P72 000 respectively. My total award for loss of support is the sum of P358 200 and for funeral expenses P8 000.  

 

Accordingly I order that the defendant shall pay to the plaintiff:

 

     (a)     for loss of support:

              (i)    in his personal capacity damages in the amount of P166 500;

              (ii)   in his capacity as father and natural guardian of his minor child Omphile Tlhowe damages in the amount of P58 140;

              (iii)   in his capacity as father and natural guardian of his minor child Boitshoko Tlhowe damages in the amount of P61 560; and  

              (iv)  in his capacity as father and natural guardian of his minor child Banyana Tlhowe damages in the amount of P72 000.

     (b)     for funeral expenses, damages in the amount of P9 000;

     (c)     interest on all the aforegoing amounts at the rate of 10 per cent per annum from the date of this order to the date of payment in full; and  

     (d)     Costs of suit.

Judgment for plaintiff.

 

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