The SCA has overturned a Mpumalanga High Court (Mbombela) judgment that stripped a grieving mother and her minor child of their right to claim loss of support from the RAF, reports TimesLIVE.

The SCA ruled the High Court committed a serious misdirection during the trial by ruling on an unpleaded issue – whether the woman’s partner’s income was earned by unlawful means.

The man, who was a passenger in a vehicle, was killed in an accident which occurred along the R40 highway in Mpumalanga on August 14 2018. The woman instituted claims for loss of support against the RAF, both in her representative capacity as mother and natural guardian of the minor child who was born in March 2013.

In her particulars of claim, the woman said the deceased supported her and the minor child during his lifetime. This was because she and the deceased were married to each other through customary law and the deceased was the father and natural guardian of the minor child.

Though the RAF initially pleaded a denial of these claims, it later conceded the deceased was the father of the minor child and obliged to support him.

However, the fund persisted in its denial that she and the deceased were married and therefore no duty of support arose. 

In its judgment on Tuesday, the SCA said the evidence led at the trial court focused squarely on establishing the existence of a marriage between the woman and the deceased.

During her evidence, the woman testified that the deceased used to lend money to people, from which he generated up to R4 500 per month.

The court asked the plaintiff whether this activity was ‘a loan shark business’ and whether ‘it was registered’.   The woman answered that ‘it was not registered’.

According to TimesLIVE, the fund contended that the woman’s claims had to fail because the deceased’s income was earned through unlawful means.

In its judgment the High Court said the deceased owed her a duty of support, but because his money-lending business was not registered it concluded the claim was not enforceable against the fund.

In its judgment, the SCA said the issue of the illegality of the deceased’s income was not canvassed at the trial, as the focus was on the existence of a marriage.

‘The failure to plead the illegality of the deceased’s source of income, or, at the very least, raise it at the trial, deprived the appellant of the opportunity to exercise her constitutional right to a fair hearing,’ Acting Judge of Appeal Nkosinathi Chili said in a unanimous judgment by the full Bench.

He said both the SCA and the Constitutional Court have cautioned against deciding a matter on issues neither pleaded nor canvassed with the parties.

The SCA remitted the matter back to the High Court, differently constituted, to determine the amount to be paid to the child.

Full TimesLIVE report

Judgment