The Road Accident Fund (RAF) is a statutory board enacted in terms of the Road Accident Fund Act 56 of 1996. The board was established to offer compensation for any death or injuries that ensue from the negligent driving of a motor vehicle on public roads. Dependents of a breadwinner can claim for loss of support when the breadwinner dies in a motor-vehicle accident. This is, however, not an absolute right, as loss of support has requirements that need to be met for a successful claim.

Firstly, the deceased must not be the sole cause of the accident. The claimant needs to prove at least the proverbial 1% negligence on the part of the insured driver to successfully prove that the RAF has liability to compensate them. Secondly, it must be proven that the deceased had a duty to support the claimant(s) financially and that he indeed supported them at the time of his death, and they have, therefore, lost this support as a result of the death. These are the simple requirements of loss of support but a lot of untold turmoil arises in loss of support claims.

The Recognition of Customary Marriages Act 120 of 1998 was promulgated in November 2000. It recognises customary marriages and also state that registration is not compulsory. A couple can get married customarily, have children, and live as husband and wife for many years without registering their marriages. The non-registration of the customary marriage will not affect its validity. However, should the breadwinner pass on, there will not be prima facie proof of the marriage in the form of a marriage certificate. To prove that the surviving spouse was indeed married to the deceased and the deceased, therefore, owed her a duty of support is where the dilemma starts. The surviving spouse needs to produce six affidavits attesting to the marriage and the number of children born of the marriage, if any. Three of the affidavits should come from the spouses’ family while the other three should come from the deceased’s family. This is a daunting scenario when the surviving spouse is not in the deceased family’s good books. Many losses of support cases are engulfed in family politics. Some families accuse the spouse of having killed the deceased for the sole purpose of claiming from the RAF and some just do not like their daughter-in-law because they would have preferred their son to marry someone else. In situations like these, the family members deliberately choose not to cooperate when it comes to deposing these locus standi affidavits. This leaves the file in abeyance and where minor children are involved, they suffer as they are the ones who mostly need the compensatory support.

Further, it is required that locus standi affidavits should include all the dependents of the deceased, as well as a disclaimer that the deceased had no other dependents. Some claimants intentionally leave out this clause. This is mostly common when the deceased had extramarital children. Some spouses tend to intentionally leave out some children from the claim. Our law found the distinction of legitimate and illegitimate children to be unconstitutional. This has also been effected by the coming into effect of the Children’s Act 38 of 2005. It would not only be unfair but also unconstitutional to leave out these dependents. Legal practitioners are often dragged into family quarrels as the claimant will – on most occasions – ask the attorney to contact the other family to obtain permission from the child’s mother, as well as get the particulars of that other minor child. On approaching the families, legal practitioners are now and again faced with resistance from the other family asking why the claimant did not call him or herself. This then again leaves the file in abeyance as all dependants should be included in the actuarial calculations.

While some issues can be solved by the appointment of an assessor, the dilemma that ensues from loss of support claims is that while it is very hard and tedious to obtain locus standi affidavits, the affidavits cannot be done away with as they are the only way to prove locus standi more specifically in cases of unregistered customary marriages. RAF claims are prone to fraud. Requiring the families of both the deceased and the claimant to be involved is the most effective way of curbing fraud.

Another prominent problem with loss of support claims is that of prospective breadwinners. Loss of support claims require that the deceased must have been supporting the claimant at the time of death. This poses a challenge where the deceased was not yet supporting the claimant but had intention to do so in the future. In some poverty-stricken homes, parents go high and low in fending for that one child they believe will one day take them out of poverty. The child successfully goes through high-school and successfully gets funding from National Student Financial Aid Scheme to study for a degree in university. A misfortune then befalls the family, and this prospective breadwinner passes on in a motor-vehicle accident. The prospective breadwinners were not yet supporting the family but there was a high possibility that they would support their parents in the future. Should there be a development of law in the future, this should be one of the aspects that might need to be revisited by the legislature. Prospective loss of support should be claimable, at least for those parents who have a low household income or who solely survive on grant money. It can be calculated including contingencies, considering the high employment rates in the country as some graduates go unemployed for years before landing their first job.

In conclusion, while the requirements of a RAF loss of support claim seem straight forward, many family feuds complicate the process behind closed doors. Families should take note of the African proverb, ‘when two elephants fight, the grass gets trampled’. Where files are kept in abeyance to try and resolve family conflicts, it is the minor children involved that suffer in the process. We can only hope that the spirit of ubuntu thrives in our family circles so that the best interests of the child as entrenched in s 28 of the Constitution prevails.

Mufaro Mushonga-Hove LLB (Unisa) is a candidate legal practitioner at Tshilamatanda Inc in Kempton Park.

This article was first published in De Rebus in 2024 (May) DR 20.