Court awards widow and children R3.7m RAF payout after husband's fatal motorcycle crash

A widow and her two minor children are set to receive R3.7 million from the Road Accident Fund (RAF) after the death of her husband and father to her children in a motorcycle accident.

The widow turned to the Northwest High Court, sitting in Mafikeng, to claim loss of support from the RAF, as her husband was the family’s breadwinner.

The RAF earlier accepted liability towards the woman and the children, and the matter was subsequently back in court to determine the amount with which she should be compensated.

The court confirmed the deceased’s legal duty to support both the plaintiff and the minor children in terms of the Constitution and the Children’s Act.

Despite actuarial evidence suggesting a 53% reduction in the amount the widow should receive based on remarriage statistics, the court, considering the plaintiff’s age and personal circumstances, applied a 20% remarriage contingency to the plaintiff’s future loss of support.

Acting Judge M Wessels noted that based on the uncontested evidence, the deceased supported the plaintiff and the children. “A legally enforceable right to support has been duly established for both the plaintiff and the minor children,” the judge said.

Judge Wessels pointed out that in a claim for loss of support, the primary purpose of implementing contingencies is to ensure that the award remains equitable and realistic, thereby avoiding overcompensation for future losses.

This approach aligns with the fundamental legal principle that damages should adequately compensate for material losses incurred, rather than augment the claimant’s financial position beyond the actual support loss attributable to the deceased.

Judge Wessels explained that, essentially, a contingency can be described as a discretionary and flexible adjustment to actuarial damages, intended to account for the uncertainties and risks inherent in human life or particular to the plaintiff, which may have affected income but cannot be precisely quantified.

Regarding the remarriage prospects of the widow, the judge said at 31 years old, she is relatively young and “possesses... qualities that could increase the likelihood of remarriage”.

The widow testified that her husband was involved in an extramarital affair at the time of his death. “It was clear from the plaintiff’s evidence that this left her deeply hurt, beyond the normal feelings experienced upon the death of a spouse,” the judge noted.

It was further noted that despite the existence of this extramarital affair, the relationship between the plaintiff and the deceased endured for about six years, of which they were married for nearly three years.

The plaintiff cited the existence of the extramarital affair and the fact that she had made her family the focal point of her life as factors that would render a second marriage unlikely. Another factor advanced by the plaintiff is that since the deceased's death, she has independently cared for herself and her children for nearly four years under challenging circumstances.

An expert witness told the court that, when applying the remarriage statistics for South African widows to the figures, the plaintiff’s loss of support would be reduced by 53%.

“Given the factors, there is a likelihood, although remote, that the plaintiff will remarry, and to that extent, a contingency has to be applied,” the judge said in concluding that R3.7 million is a fair amount.

Cape Times