Road Accident Fund v Mohohlo

The respondent, Rebecca Mohohlo, claimed damages for loss of support arising from the death of her nephew, Otshepeng Letshufi, who died on 27 October 2011 from injuries sustained in a motor collision on 2 July 2011. The RAF conceded negligence but disputed her right to damages. The plaintiff was 64 years old at the time of trial. When Otshepeng's biological mother, Lenah (the plaintiff's sister), gave birth to him at age 19 while still unmarried and at school, the plaintiff agreed to take the infant into her home at about three months old following family consultation. According to their culture, when a woman with a child marries another man, his family will not accept the child. The plaintiff, who had no children of her own, raised Otshepeng as her son, treating him as such, and he viewed her as his mother. His biological mother and her subsequent husband never provided financial support. The plaintiff worked as a domestic worker until 2004 when ill-health forced her to stop permanent employment. Otshepeng entered the job market in 2007 at age 24 and at the time of the collision earned R6,690 per month as a financial consultant with Old Mutual. He continued living with the plaintiff and supported her by giving her cash, buying groceries and clothes, and providing for accommodation. After his death, the plaintiff received only an old age pension of R1,350 per month plus sporadic income from selling vetkoek, and had to move from Hillbrow (R1,000 rent) back to her rural homeland (R600 rent).

• Whether a de facto adopted nephew owed a legal duty of support to his aunt who raised him from infancy
• Whether the common law duty of support should be extended beyond the second degree of consanguinity based on de facto relationships
• Whether the plaintiff was sufficiently indigent to enforce the duty of support
• The application of customary law principles and ubuntu in determining duties of support
• The role of constitutional values in developing the common law of delict relating to dependants' claims

The appeal was dismissed with costs.

A reciprocal legal duty of support can arise between an aunt and nephew where: (1) the aunt has de facto adopted the child in accordance with the family's cultural practices, taking custody from infancy and raising the child as her own; (2) the relationship is for all practical purposes equivalent to that of mother and child; and (3) such recognition is consistent with constitutional values, particularly ubuntu, and the legal convictions of the community informed by considerations of morals, justice, equity and decency. The existence of such a duty is not precluded merely because common law recognizes duties of support only to the second degree of consanguinity where the duty is based solely on blood relationship. A dependant may enforce a duty of support where she is indigent, meaning her resources are insufficient to cover basic necessaries of life (food, clothing, accommodation, medical care) reasonably appropriate to her station in life, and support should not be limited to keeping her in previously deprived circumstances where the breadwinner had improved the family's economic position.

The Court expressed doubt about whether separation of the liability and quantum issues was convenient, noting the connection between indigence and quantification since quantum would be the amount required to eliminate indigence. The Court criticized the parties for proceeding without a formal separation order, without clear identification of issues, and without proper consideration of whether separation was convenient, despite repeated admonishments from the SCA on this point. The Court declined to decide whether the plaintiff's ability to obtain free medical services from the State should be taken into account when quantifying her claim, noting that when this question is answered, parties must have regard to the Constitutional Court's recent judgment in MEC for Health v DZ obo WZ [2017] ZACC 37, which approved the approach in Ngubane v SATS 1991 (1) SA 756 (A) and disapproved the contrary conclusion in Premier, Western Cape v Kiewitz 2017 (4) SA 202 (SCA). The Court suggested that if this approach were extended to loss of support claims, the evidential burden would rest on the RAF to show the plaintiff does not reasonably require private medical treatment. The Court noted that it was unnecessary to decide whether, under customary law applicable to the family, the plaintiff had a legal duty to support Otshepeng once she agreed to care for him following family consultation, though this may well have been the case.

This case represents a significant development of the common law of delict in South Africa by extending the dependant's action for loss of support beyond traditional blood relationships recognized at common law (second degree of consanguinity). It demonstrates how constitutional values, particularly ubuntu, inform the development of common law. The judgment recognizes de facto adoption relationships as creating reciprocal duties of support equivalent to biological parent-child relationships, particularly where such arrangements arise from cultural practices. The case affirms the flexibility of the boni mores criterion in adapting the dependant's action to social changes and modern conditions. It also provides guidance on how customary law principles should be considered when determining duties of support, even where the defendant is not bound by customary law. The judgment reflects a departure from rigid formalistic approaches to family relationships in favor of substance over form, recognizing the realities of African family structures and the principle of ubuntu as a unifying motif of the Bill of Rights. It also addresses the content of the duty of support, holding that indigence should not confine people to previously deprived circumstances where a breadwinner has improved the family's economic position.