File picture: Ekaterina Bolovtsova, Pexels
A MOTHER from rural Limpopo successfully turned to the courts to force the Road Accident Fund (RAF) to pay her for loss of support after her only remaining child died in a car accident.
The Limpopo High Court, sitting in Polokwane, ruled in favour of the woman, Lina Baloyi.
Judge Maake Kganyago said she was entitled to claim for the loss of support arising from the death of her son, since she was indigent and had been partly dependant on the deceased.
He quoted at length a similar judgment in which it was held that African law obliged a child who was financially able to do so, to provide maintenance for his/her needy parents.
The court said when an African person provides support and education to his/her son/daughter, he/she is not under a duty to do so on the strength of the South African legal system, but custom obliges such a parent to do this.
“In fact, in African tradition to bring up a child is to make for oneself an investment in that when the child becomes a grown-up and is able to participate in the labour market, that child will never simply forget about where he comes from.”
The court added that the child, without being told to do so, will make a determination (taking into account the amount he/she earns and other expenses) of how much he/she must send home to the parents on a monthly basis.
“This duty is inborn and the African child does not have to be told by anybody to honour that obligation. In fact, that is the trend in almost all black families in rural areas including so-called urban black communities.”
The court further said that those children in employment provide their parental home with the hope in life that they would, monthly and without fail, send money to their parents for the basic necessities of life.
“The duty of a child to support a needy and deserving parent is well known in indigenous/customary law. It is observed by such children. There is always an expectation on the part of the parent that his child will honour that duty,” the court said.
It was with this in mind that Judge Kganyago determined the case of Baloyi, who said that all three of her children had passed away. Her last son died in 2019 in a car crash and before his death, he, according to her, gave her R2,000 a month towards her living expenses.
She explained that she only received a social grant and supported two of her grandchildren whose parents had died.
While the fund did take full responsibility for the merits of the claim, it disputed that the deceased son had a duty to support his mother. It was argued on behalf of the fund that if there was a duty to maintain the mother, that duty fell on all of the grandchildren and not only the deceased.
Baloyi said with the R2,000 a month that her son gave her, she had lived a comfortable life, However, now she was unable to make ends meet.
The RAF called Agnes as a witness, who said she and the deceased were married and that he used to pay her R3,000 a month for living expenses. She denied that he paid his mother R2,000 a month, as she said he only earned R6,000 a month.
Judge Kganyago noted that the mother received a social grant of R1,800 with which she had to support herself and her two grandchildren. Her only source of income was the social grant to feed three mouths.
“In my view, the plaintiff is indigent, and the deceased owed the plaintiff a duty of support according to his financial means,” the judge said. in ruling that she may claim loss of income from the RAF.