Sinhle Inosacia Sambo v Road Accident Fund

The appellant instituted a delictual claim for loss of support against the Road Accident Fund after her partner, Mr Nhlanhla Mnisi, died in a motor vehicle collision on 14 August 2018 caused by the negligent driving of an insured driver. She sued in her personal capacity, alleging a customary marriage with the deceased, and in her representative capacity as mother and natural guardian of the minor child SM. The Fund conceded that the deceased was the father of the minor child and that he was obliged to support the child, leaving only quantum in dispute for the child, but it denied the existence of a customary marriage and therefore any spousal duty of support to the appellant. The trial in the high court accordingly focused on whether a customary marriage existed. During her evidence, and only in response to a question from the bench, the appellant mentioned that the deceased’s informal money-lending business was ‘not registered’. The Fund did not plead that the deceased’s income was unlawful, nor was the legality of his income canvassed during the trial. However, in its heads of argument the Fund raised for the first time that both claims had to fail because the deceased earned his income from an illegal ‘loan shark’ business. The high court found that the appellant had failed to prove a customary marriage, but nevertheless proceeded to enquire whether the deceased owed her a duty of support. It then raised mero motu the issue of the legality of the deceased’s income, concluded that the unregistered money-lending business was illegal under the National Credit Act 34 of 2005, and dismissed both the appellant’s personal claim and the minor child’s claim for loss of support with costs, relying on Dhlamini v Protea Assurance Co Ltd and Santam Insurance Ltd v Ferguson.

• Whether it was permissible for the high court to raise of its own accord and decide the matter on the legality of the deceased’s source of income when the issue was neither pleaded nor canvassed at trial.
• Whether the high court erred in dismissing the minor child’s claim for loss of support despite the Fund’s concession that the child had a valid claim and that only quantum remained in issue, and despite the parties’ pretrial agreement.
• Whether the high court failed to give due consideration to the minor child’s rights to maintenance and the paramountcy of the child’s best interests under section 28 of the Constitution.
• Whether the Supreme Court of Appeal should grant the claims in the appellant’s favour or remit the matter to the high court for determination of quantum.

The appeal is upheld. The matter is remitted to the high court (differently constituted) to consider the quantum. The respondent (Road Accident Fund) is to pay the costs of the appeal.

A trial court commits a misdirection when it raises mero motu and decides a case on an issue that was neither pleaded nor canvassed at trial, thereby depriving a party of a fair hearing under section 34 of the Constitution. Where a claim concerns a minor child, a court must have regard to the child’s fundamental rights under section 28(1) and give paramountcy to the child’s best interests under section 28(2) of the Constitution; it may not dismiss a conceded claim for loss of support on the basis of an unpleaded defence without such consideration.

The pre-constitutional policy underpinnings of Dhlamini v Protea Assurance and Santam v Ferguson—which preclude dependants from claiming loss of support where the breadwinner’s income was derived from unlawful activity—may not prevail in the current constitutional dispensation, although this issue was not determined. The Fund’s acceptance of liability in a separate claim involving the deceased’s other minor child, while raising the illegality defence in the present matter, potentially implicates the right to equality before the law under section 9 of the Constitution. The factual basis before the court was insufficient to justify a definitive pronouncement on the legal status of the deceased’s money-lending business under the National Credit Act.

The judgment reaffirms the fundamental principle of fairness in civil litigation and the centrality of pleadings under section 34 of the Constitution; a court may not decide a case on an issue that was neither pleaded nor canvassed where this would prejudice a party. It also underscores that children are independent constitutional right-bearers and that in every matter concerning a child the child’s best interests are paramount under section 28(2) of the Constitution. The Court expressly cast doubt on whether pre-constitutional jurisprudence barring claims for loss of support where the breadwinner’s income was derived from unlawful activity remains valid in South Africa’s current constitutional dispensation, leaving that question open for future determination.