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In this chapter, an analysis of the claim for loss of support under the dependants’ action is placed in context, by emphasising the “loss of support” concept,523 the nature of the dependency action,524 in particular the objectives525 and requirements526 of this delictual remedy, and the development of delictual and statutory claims for loss of support for different categories of dependants.527 An issue presenting difficulty relates to the different classes of persons (dependants) who qualify to claim under the action for loss of support. The comparative countries528 vary in terms of who is authorised to be a plaintiff in the dependants’ action.529 The South African judiciary has recently broadened the class of dependants entitled to bring the action for loss of support.530 The question to be answered is whether the expansion of the eligible class of dependants has reached its final stages, or whether, within an African customary law context, the true circle of family spreads so wide that it will be an open-ended class of persons, and could ultimately lead to a widespread abuse of the action? Can the African perspective of an unlimited class of dependants be authenticated in light of our constitutional outlook? In other words, can the variety of dependants in terms of the claim for loss of support under the dependency action be expanded further, or has the action reached its logical conclusion?
As previously stated, the reality of the claim for loss of support under the action for dependants is much more complex, both in theory and in practice. The language of the action was not well chosen, and its ultimate meaning was left largely in the hands of judicial interpretation. As a result, the action is enshrouded in uncertainties and practical implementation problems regarding the vested rights531 given by the dependency action. The issue of vested rights given by the action has not been authoritatively decided.532 The question is whether a claim for damages for loss of support and other related expenses arising out of the unlawful death of the breadwinner is necessarily a dependant’s action, or whether, in some circumstances, such a claim must take the form of a breadwinner’s action instead?533 This is a highly debatable issue within the action of dependants for loss of support and related expenses, and has led to differences of opinion amongst legal writers, court decisions, and other legal systems. This raises the following questions: Why are the views and legal systems deviating on this question? Can an all-inclusive approach be adopted in this regard? Which possible claimants or dependants will be excluded if the approach followed is a breadwinner or dependants’ action?
Another issue that has not been finally settled is whether the dependants of a breadwinner who is injured (not killed) in a wrongful and culpable manner should, as in the case of death, be able to claim for loss of support with the Aquilian action?534 There is a strong division of judicial pronouncements on this issue, as well as under the dependency action. The question is whether this inconsistency in the treatment of dependants of the injured breadwinner is justified under the action of dependency, and whether it should be tolerated in the post-constitutional dispensation. Precisely how should this issue be dealt with, and would it not be in the public interest to pursue a more comprehensive approach to such dependants? This chapter will examine these problems and issues in detail.

Brief background

Australia, Botswana, Lesotho and South Africa have legal systems that evolved from the English common law tradition, which failed to recognise a cause of action for the estate or the dependants of the wrongfully and negligently killed breadwinner.535 In common law, in accordance with the maxim actio personalis moritur cum persona,536 the death of the breadwinner terminated any cause of action. A death, according to common law, no matter how wrongfully and negligently caused, could not be characterised as an injury to another, and was therefore unable to give rise to an action by a third party,537 for example the representative of the deceased’s estate and/or dependants. In other words, delictual rights and liabilities were extinguished on the death of the breadwinner.538 This doctrine produced substantial partialities, which left the deceased’s estate and dependants without any compensation at all.539 In response, to remedy the severity of the common law system, consideration was given to statutory solutions to reverse this unjust rule. The common law rule was effectively reversed through legislation in England in 1846, with Lord Campbell’s Act,540 and subsequently in all Australian jurisdictions, as well as other common law jurisdictions.541 This legislation created a statutory cause of action for wrongful death. Though Lord Campbell was writing about English law, the position is generally similar under Botswana,542 Lesotho543 and South African544 civil law. While the exact origins of the action of dependants are unknown in South Africa, the action is commonly regarded as an extension of the actio legis Aquiliae.545 According to positive law, in Botswana, Lesotho and South Africa, the dependants of the deceased breadwinner who was wrongfully and negligently killed may claim damages for loss of support from the wrongdoer with the actio legis Aquiliae.546
Unlike Australia,547 the other official, applicable law in Botswana, Lesotho and South Africa is customary law, which draws no clear distinction between delicts on the one hand, and crimes on the other.548 The unlawful causation of the death of another person traditionally gave rise to delictual liability in customary law.549 Originally, manslaughter and homicide were deemed the exclusive jurisdiction of the tribal chief.550 Normally, a part of the customary fine imposed by the chief would be allocated to the deceased’s relatives.551 However, the dependants did not institute claims for damages themselves,552 but this did not mean that they did not have the right to claim for loss of support where their breadwinner was wrongfully and negligently killed. The customary law loss of support action was recorded in 1901 with the Sipongomana v Nkuku553 case, which was decided in KwaZulu-Natal. Here the court found that if a valid customary marriage was concluded, a personal claim for loss of support of the wife and children could be instituted under customary law.554
Today, both the estate and dependants of a wrongfully and negligently killed breadwinner have claims, in both civil and customary law, against the wrongdoer where a delict has caused the death.555 This type of action is commonly known as go tsoša/tsosa hlogo under customary law in Sepedi/Sotho/Setswana language, or wrongful death in the English language, and may arise out of a number of circumstances, such as medical malpractice,556 which results in the breadwinner’s death, an automobile or airplane accident, occupational exposure to hazardous conditions or substances, criminal behaviour, etcetera.557
Wrongful death gives rise automatically to two different claims in law – a claim under the personal injury (survivorship) action, and a claim under the dependency action.558 The survivorship action is brought by the executor of the estate of the deceased breadwinner, and is based on the deceased’s claim for damages for personal injuries559 arising from a delict committed by the defendant wrongdoer, which resulted in the deceased’s death, and which the deceased would have been able to sustain had he lived. The executor of the estate therefore steps into the deceased’s shoes560 to preserve this action.561 On the other hand, the dependency action is brought by the dependants of the deceased breadwinner against the defendant wrongdoer. The dependants of the deceased are entitled to sustain an action against the wrongdoer for the loss of support that the deceased would have provided to them (dependants) if he/she had lived for the period during which they (dependants) would have been reliant on him/her.
The claims by the estate and dependants are coexistent and not alternatives.562 They are two separate and distinct causes of action. Different losses are involved under each cause of action, and there will not be a duplication of claims. The survivorship cause of action belongs to the estate for the deceased’s losses suffered prior to death.563 The wrongful death cause of action belongs to the dependants of the deceased, who have suffered pecuniary loss because of death. In most situations, the greatest pecuniary loss suffered by the dependants is loss of support, but it is not restricted to this. It also includes funeral expenses and loss of services provided by the deceased.564 For purposes of this chapter, only the dependency action (wrongful death) is discussed.
Before embarking on a discussion on the nature of the dependants’ action, it is important to gain an understanding of the concept “loss of support”. This concept is utilised in different legal disciplines, particularly in family law and the law of delict. Therefore, great care has to be exercised in examining and applying the concept. Although these two areas superficially exhibit some common elements with regard to loss of support or maintenance, as it is called in family law, each concept is used to achieve varying objectives in the two areas. The family law concept of loss of maintenance cannot automatically be applied to cases involving delictual claims for loss of support, and vice versa.565 The family law concept of loss of maintenance warrants further investigation and research for future development and extension of its application in delictual cases. An overlap of the family law concept of “loss of maintenance” and the law of delict concept of “loss of support” does not mean that any culpable conduct under family law will automatically qualify as a delict. The concept “loss of support” will be explained in more detail in the next paragraph.

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Concept of “loss of support” in South Africa

Family law concept

The family law perception of loss of support is known as the duty of support or the duty to maintain. It relates to the legal duty to maintain the well-being of a family member.566 The duty to maintain a family member is not limited to maintaining a child.567 Any family member,568 irrespective of his or her age, can ask another family member to maintain him or her.569 Generally, the duty to maintain is reciprocal,570 meaning that such a duty may arise in either party. For example, although the parent is usually obliged to maintain his or her child, in certain circumstances, the obligation will fall on the child to maintain a parent,571 subject to certain requirements. In the case of family law, it is imperative to establish whether a duty to maintain exists, and even determine the extent of the duty of maintenance. In other words, the actual content of the duty to maintain is of paramount importance. The test is whether the following requirements are met:
The person claiming support must be unable to maintain himself or herself;
The person from whom support is claimed must be able to maintain the claimant;
A familial relationship must exist between the parties, for example the relationship must have been created by birth (blood relation), adoption, or marriage.572
In Oosthuizen v Stanley,573 which dealt with the legal duty of children to support their parents, the court characterised support as including food, clothing, accommodation, medical care, education, and even payment of legal fees, bail and all other reasonable needs.574 The extent of this duty to maintain under family law is determined and balanced with reference to the social position, financial means and lifestyle of the parties,575 and is not necessarily limited to the bare necessities of life in the strict sense of the word,576 but applies only between family members (familial relationships).577 This interpretation of the duty to maintain is clearly limited in its scope of application.
In Chisholm v East Rand Proprietary Mines Ltd,578 the family law concept of loss of support was applied under the nasciturus fiction and extended to the law of delict in an action for loss of support by the dependants. Chisholm was the first case in which the nasciturus fiction was extended to the law of delict: The plaintiff’s husband had died in a mine accident and it was found that the accident had been negligently caused by an employee of the defendant. At the time of death of the breadwinner, the plaintiff was pregnant with their first child. She claimed damages due to the infringement of her and her child’s right to maintenance. The court ruled that the unborn child in a claim for damages is in the same position as children already born.579 The court extended the application of the nasciturus fiction to include instances where a delict had been committed against the unborn child. The court held that the unborn child has a right of action against the wrongdoer who caused the death of the breadwinner for loss of support. However, this action has a qualification, namely that the child must be born alive.
In the law of delict, another meaningful development took place in Pinchin v Santam Insurance Co Ltd,580 wherein the nasciturus fiction was expanded to cover not only patrimonial loss, but also cases of reparation (recoverability of non-patrimonial damages).581 Here an expectant mother was injured in a motor vehicle accident, and her child was subsequently born with cerebral palsy. As a result of the brain damage, the child would never be able to take care of herself. The accident was caused by the sole negligence of the driver of the other motor vehicle. The claim was unsuccessful, since it was not proven that the cerebral palsy of the foetus had been caused by the injury sustained by the mother. If it had been proven that the child’s cerebral palsy was the result of the injuries sustained by the applicant during the accident, the nasciturus fiction would have been applicable to this case.
Although the principles of our family law are flexible enough to extend the nasciturus fiction to the field of delict, and an unborn child does in fact have a claim for pre-natal injuries,582 both the Chisholm and Pinchin cases have been criticised by legal authors. This criticism is, mainly because our law of delict does not require that the wrongful act and damage caused should occur simultaneously. Therefore, it is unnecessary to invoke the nasciturus fiction in delict. For example, Joubert583 is of the opinion that the use of the nasciturus fiction is unnecessary when dealing with delictual claims. In his view, the actio legis Aquiliae is flexible enough to embrace the challenges presented to it by pre-natal injuries and infringement of the subjective rights of unborn children. Boberg584 has a contrasting view on the relevance of the nasciturus fiction. He states that the nasciturus fiction could be implemented with success if its scope could be extended to include actions based on pre-natal injuries, because the child does not only suffer injuries from the time of birth but begins suffering from the time of the commission of the delict. The Chisholm and Pinchin cases have now been overruled in respect of the extension and application of the nasciturus fiction to the law of delict by the decision in the RAF v Mtati case.585 Here the mother was involved in a collision and the foetus was injured in utero and born brain damaged. The court held that the ordinary principles of delict apply, and it is not necessary to extend the nasciturus fiction to the law of delict. It is clear from the above discussion that the extension and use of the nasciturus fiction to include delictual claims would not provide a solution to a matter with overlapping delictual and family law principles. Furthermore, in the nasciturus fiction matter, there was no need to rely on family law in order to expand delictual claims.

Delictual concept

After the exploration of the concept of “support or maintenance” within family law, it is obvious that the acceptance of the limited understanding of this concept as applied in family law into the law of delict may lead to possible partiality. The objective of allowing a maintenance claim in family law also differs from the objective of allowing a claim for delictual damages based on loss of support. An analysis of the approach in the law of delict to the loss of support concept is required to determine whether the family law concept is valid and applicable when dealing with a delictual claim based on the unlawful and negligent killing of a breadwinner.586 Should the family law concept be acknowledged as a true reflection of the content of “loss of support” for purposes of a delictual claim for loss of support, it could have the potential of limiting recoverable damages. This is the case because the law of delict, although it utilises the duty to support as its principle for a claim for damages based on loss of support,587 it seeks to effect restitution to a position prior to the commission of the delict.588 This fundamental principle of the law of delict seems to establish a somewhat wider and more liberal approach to the concept of “support” as applied in family law. The objective in awarding delictual damages for loss of support differs somewhat from the objective in awarding a claim for maintenance in family law. In order to be able to fulfil the restitutory function of damages within the law of delict, one may be compelled to include “losses”589 other than the necessities indicated by the content of support, as found in family law.590
As far as the law of delict is concerned, “loss of support” includes considerations that do not strictly fall within the understanding of the same concept as in family law, and rather generically denotes all the negative consequences (losses) suffered by a dependant due to the death of his or her breadwinner. From case law,591 it appears that the concept of “loss of support” in the law of delict is ostensibly wider than that found in family law.592 The latter concept in essence only relates to familial relationships with reciprocal duties. In Jameson’s Minors v CSAR,593 the court said the following in relation to damages for loss of support:
“There only remains the question of damages, and it is one of the most difficult points in this case. The general principles which should guide us are plain. I need only refer to Voet, who lays down the rule very clearly. He says (9,2,11): ‘According to the modern practice the scope of the action’ . . . that is, an action by the widow or children of a man who has been killed through the default of another . . . ‘has been extended, in as far as it is now allowed to the wife and children of any husband or father killed through another’s default, for such damages as the equity of the judge will determine, account being taken of the maintenance which the deceased would have been able to supply, and had usually supplied, out of his labour, to the wife and children, or to other near relatives.’ I do not think that Voet intended to restrict, or that we should restrict the word ‘maintenance’ victus to the supply of mere necessities of life. It must include all the material advantages, conveniences, comfort, support, which the father would have afforded the claimants, but for his death. The language used shows that the Court must pay regard to what the deceased had been used to supply in the past – that is, to the station in life of the parties, and the comforts, conveniences and advantages which they had been accustomed.”594
This interpretation was seemingly not accepted in Van Vuuren v Sam.595 In this case, the mother of a seventeen-year old boy claimed damages for loss of support after her son died because of the unlawful and negligent act of the defendant (respondent). In order to succeed, the plaintiff (appellant) was called upon to prove that the defendant unlawfully and negligently killed her son, and that the deceased son contributed to her support because he was legally obliged to do so. The deceased was employed and received a salary of R250 per month. The plaintiff’s husband was clearly in financial difficulties, to the extent that he was hard-pressed to maintain his family, of which the plaintiff was a member. The deceased, during his lifetime, gave some of his salary to his mother. According to the evidence, it was not proven what the exact amount was. The plaintiff’s entire case was based on the fact that her deceased son had a duty to support her. According to the principles of family law, parents are owed a duty of support by their children only if they can show that they are indigent and incapable of providing for themselves.596 In order to determine whether the plaintiff was in fact indigent and consequently owed a duty of support, the court was compelled to determine in what respect the plaintiff should be indigent. The question therefore was not what the plaintiff had lost in the form of support, but what she should lack in order to be found indigent, so that the duty of her deceased son to support her could be established. To establish whether the plaintiff was lacking in terms of basic needs, the court was compelled to investigate the measure that has to be applied in order for the support duty of a child to exist. In arriving at the decision that such duty did not exist, the court held that a parent is not entitled to support on the basis that he or she lacks that which he or she was accustomed to, but only when he or she is lacking the necessities of life.597 The court in this case had thus incorrectly applied the restricted family law concept of support to a delictual claim for damages.
The distinctions between the family law concept of “loss of maintenance” and the delictual law concept of “loss of support” have been clearly explained. The concept of “loss of support” under law of delict is broader, more varied, applies beyond family members, and does not contain the reciprocal duty of maintenance or support. For the reasons highlighted above, it is clear that the family law concept of maintenance is limited in its scope and application to the family law sphere. Therefore, extending the family law concept of the duty to support to the law of delict will not provide any benefits or solutions to the questions posed regarding the application of the dependency action within the sphere of the law of delict.598 Keeping this theoretical background of the loss of support concept and its applicable principles of family law and law of delict in mind, the next paragraph looks at the nature of the dependency action.


Title page
Key Terms 
Abbreviations and Acronyms 
Table of Contents 
1.1 Introduction
1.2 Objectives of the study
1.3 Comparative perspective
1.4 Problem statement
1.5 Limitation underlying the study
1.6 Research design and methodology
1.7 Exposition of chapters
1.8 Terminology
1.9 Chapter conclusion
2.1 Importance of the historical development
2.2 Roman law
2.3 Roman-Dutch law
2.4 South African law
2.5 Botswana and Lesotho
2.6 Australian law
2.7 Chapter conclusion
3.1 Introduction
3.2 Brief background
3.3 Concept of the “loss of support” in South Africa
3.4 Nature of the action of dependants
3.5 Development of the delictual claim for loss of support for specific dependants
3.6 Chapter conclusion
4.1 Introduction
4.2 Concepts of “damage”, “damages” and “compensation”
4.3 Basic principles of assessing damages for loss of support in terms of the dependency action
4.4 Irrecoverable damages for loss of support and other related losses in terms of the dependency action
4.5 Recoverable damages for loss of support and othe related losses in terms of the dependency action
4.6 Principles applicable to the assessment of damages for loss of support in terms of the dependency action
4.7 Measurement of damages for loss of support in terms of the  dependency action
4.8 Chapter conclusion
5.1 Introduction
5.2 South Africa
5.2.6 Conclusion
5.3 Botswana and Lesotho
5.4 Australia
5.5 Chapter conclusion
6.1 Introduction
6.2 Summary of important findings and necessary recommendations
6.3 Critical emerging challenges
6.4 Brief concluding remarks on the study

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