RAF – Loss of support – Suicide
Factual and legal causation – Husband seriously injured in motor accident and suffering pain and reduced ability to work – Trial court dismissing claim – Unending excruciating pain, stress-related issues and depression caused by accident – Ability to make a balanced decision was deleteriously affected – Suicide did not amount to a novus actus interveniens and requirements for causation established – Appeal upheld.
Facts: The appellant testified that the deceased had been a supportive husband, a loving father to their daughters and someone who loved riding motorbikes and socialising. But in 2014 he was involved in a motor vehicle accident while riding his friend’s motorbike alongside the beach road. He suffered serious injuries which affected his happiness, his self-esteem and his ability to work and earn sufficient income. He later committed suicide. The appellant claimed loss of support from the Road Accident Fund.
Appeal: Against the judgment of the court a quo which found that the appellant had failed to establish a causal connection between the injuries sustained by the deceased in the accident and the suicide. The trial court dismissed the appellants’ claim and directed that each party pays its own costs.
Discussion: The testimony of the appellant on how after the accident the deceased was no longer the man she married and not the dad he used to be and that he became frustrated and sad; how he was always in pain and also stopped socialising and that he was worried because he could not give everything to his daughters and wife that he provided in the past; the testimony of the doctor and other experts on the extent of the deceased’s injuries and the effect on him; and whether factual and legal causation was established in this case.
Findings: The evidence showed that the deceased was suffering excruciating pains arising from the motor vehicle accident. The court has little doubt that the injuries and the pain that the deceased was going through affected him tremendously and compromised his thinking ability. Even though the deceased’s act of suicide may be said to have been deliberate, the weight of the evidence proves on the probabilities that the deceased’s ability to make an informed judgment was compromised and impaired to a material degree by the unending excruciating pain, stress-related issues and depression caused by the accident. His ability to make a balanced decision was deleteriously affected. Though the suicide was deliberate, it did not amount to a novus actus interveniens. It would be reasonable to hold that the evidence presented at the trial established the requirements for causation.
Order: The appeal is upheld and the plaintiff’s claim succeeds on the merits. The Fund shall pay the plaintiffs such amount as they may prove arising from their claim for loss of support as a consequence of the death of the deceased.
LEKHULENI J (ERASMUS J and SAMELA J concurring)
FAMILY – Maintenance – Contempt
Rule 43 order for maintenance and expenses – Applicant totally dependent on respondent for maintenance and suffering serious medical conditions – Applicant paying for one child’s university fees and expenses – Respondent a repeated contemnor who has deliberately frustrated ordinary enforcement of order – Stratagem to outlitigate applicant as she cannot afford to litigate at each and every turn – Declared in contempt and committed to imprisonment – Suspended on condition that he pays arrear maintenance and expenses and complies with his obligations – Uniform Rule 43.
Facts: The parties are involved in an acrimonious divorce and are married in community of property. In 2018 a Rule 43 order by Mokose AJ included maintenance to be paid by the respondent for the applicant and the two children, with provision made for certain other expenses, and for the respondent to retain them on his medical aid. This order was amended in 2021 by an order of Windell J to provide for payment for groceries.
Application: Applicant has approached the court by way of urgency, seeking an order that the respondent be held in contempt of the orders by Mokose AJ and Windell J and that he pay the arrear maintenance and related expenses.
Discussion: How applicant is totally dependent on the respondent for maintenance; the previous contempt application; that she has serious medical conditions including cancer, yet respondent is refusing to pay her medical expenses per the Rule 43 order; that C is now an independent adult and married but still lives with the applicant in the matrimonial residence; that A is a student at university and, because respondent is blatantly refusing to pay for the university fees, applicant has to pay for the rental and allowance and that the fees are outstanding; and that applicant has demonstrated that she does not have the means to litigate and as such tried to obviate same by sending e-mails with schedules of the arrears that were due and payable per the Rule 43 order to the respondent through his attorney of record.
Findings: The respondent is not a man of straw but a hardworking businessman with many assets including some which are abroad, as contended by the applicant. Yet, he is a repeated contemnor who has deliberately frustrated the ordinary enforcement of the Rule 43 order. As a result, there is an accumulation of significant arrears which include monies payable for medical care. The respondent’s contention that the applicant should continue depleting her assets or live on borrowed funds pending the final determination of the Rule 43(6) application is flawed. He seems to forget that they are still married and as such he cannot divest himself from the duty to maintain the applicant. Most importantly, the Rule 43 order is binding and must be honoured until it is varied or discharged. The court agrees with applicant as to respondent’s stratagem to out-litigate her as she cannot afford to litigate at each and every turn. The applicant seems to hold a fallacious view that he can litigate at his leisure and be in court as and when he has money or at the convenience of his attorney.
Order: The respondent is declared in contempt of the court orders granted by Mokose AJ and Windell J. He is committed to imprisonment for a period of 6 months which shall be suspended for a period of one year on condition that he pays the arrear maintenance and expenses and complies with his obligations set out in the court orders. The respondent is ordered to pay the costs of this application on the attorney and client scale.
MEDICAL NEGLIGENCE – Settlement agreement – Order of court
High Court finding that there was an illegal contingency fee arrangement and that attorneys did not follow practice directives – Substituting draft order and referring firm to LPC – Contingency fee agreement has nothing to do with defendant – High Court failed to consider whether validity of contingency fee agreement was severable from rest of the settlement agreement – Appeal is upheld and order of High Court replaced with one recording the settlement agreement.
Facts: Ms Mucavele is considered an indigent person and is the mother of a child with spastic quadriplegic cerebral palsy. She approached VZLR Inc and a claim proceeded against the MEC for Health. VZLR Inc instructed approximately 24 experts to investigate the cause of the cerebral palsy and liability was settled on a “50:50% discounting of liability basis”. An offer of R7,184,950 was accepted which was to be placed in a trust to be created for the benefit of the child. The parties wished to make the settlement agreement an order of court and Mr Joubert of VZLR Inc incorporated its terms in a draft court order approved by the MEC.
Appeal: The High Court found that there was an illegal contingency fee arrangement between Ms Mucavele and VZLR Inc and that the firm did not follow the procedure prescribed by the practice directives. The High Court substituted the draft order so that payment would be to attorneys to be identified by the Legal Practice Council (LPC) and ordered that VZLR Inc be referred to the LPC for investigation. The trust could thus not be set up and the payment of the benefit to the minor child could not be made pending the resolution of the appeal, leaving the mother and her minor child in desperate straits.
Discussion: VZLR Inc dispute the classification of the fee arrangement by the High Court. They further contend that, even on the High Court’s classification, the entire settlement agreement is not invalidated and rendered unenforceable. Further, the High Court did not have the power to alter the terms of the settlement agreement and make orders not sought by the parties. They complain that what the High Court did constituted “judicial overreach” and they accordingly seek the setting aside of the order of the High Court and for the consent order to be made an order of court.
Findings: The High Court ultimately had no difficulty with the fact that the merits had been settled or the quantum agreed upon. A court may mero motu raise a question of law if it emerges fully from the evidence and is necessary for a decision in the case. The legality of the contingency fee arrangement was not such a question. A contingency fee agreement is a bilateral agreement between the legal practitioner and his or her client. It has nothing to do with a party against whom the client has a claim. An invalid or unlawful contingency fee agreement would not necessarily invalidate the underlying settlement agreement. The High Court failed to consider whether the validity of the contingency fee agreement was severable from the rest of the settlement agreement. The orders were made against VZLR Inc at a stage when it was not a party to the litigation.
Order: The appeal is upheld. The order of the High Court is replaced with one recording that the parties have entered into a settlement agreement and agreed that defendant is ordered to pay R7,184,950 to the plaintiff with interest and plaintiff’s costs and the costs of the experts. VZLR Inc shall cause a trust to be established into which the amount shall be paid.
SIWENDU AJA (PONNAN JA, SALDULKER JA, ZONDI JA and CARELSE JA concurring)
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