n Journal of South African Law / Tydskrif vir die Suid-Afrikaanse Reg - The Boni Mores take a strange turn - case report

Volume 2019 Number 4
  • ISSN : 0257-7747


South African law recognises the action for damages of a dependant who suffered loss as a result of the death of his or her breadwinner against a wrongdoer who caused such breadwinner’s death in a wrongful and culpable way (Neethling and Potgieter Neethling-Potgieter-Visser Law of Delict (2015) 292-299; Loubser and Midgley (eds) The Law of Delict in South Africa (2012) 288-292; Van der Merwe and Olivier Die Onregmatige Daad in die Suid-Afrikaanse Reg (1989) 332 ff; Burchell Principles of Delict (1993) 233-239; McKerron The Law of Delict (1971) 149-153; generally Davel Skadevergoeding aan Afhanklikes (1987)). Notwithstanding the anomalous character of such a claim – our courts regard its basis as a delict committed against the late breadwinner, and not the dependant, in spite of the fact that it is instituted in the latter’s name – application of its basic requirements normally presents no difficulties and judgments recognising it abound, especially in the sphere of liability of the Road Accident Fund (Fund) for breadwinner deaths. (In terms of the “theoretically correct view” (Neethling and Potgieter 293) the claim is in fact based on the wrongful, culpable causing of (pure economic) damage to the dependant, which view is implicitly ratified by the Apportionment of Damages Act 34 of 1956, as well as certain judgments of the supreme court of appeal, eg Santam Bpk v Henery 1999 3 SA 421 (SCA) 430C; Amod v Multilateral Motor Vehicle Accidents Fund (Commission for Gender Equality Intervening) 1999 4 SA 1319 (SCA) 1326C-D; Brooks v Minister of Safety and Security 2008 2 SA 397 (C) 407BF.) The case under discussion is unaffected by this controversy between the different approaches followed in practice and academia.

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