Pretoria - In a ground-breaking judgment regarding the duty of children to financially support their parents in terms of African Customary Law, the high court in Pretoria has ordered the Road Accident Fund (RAF) to pay a family R72 439 towards their maintenance.
Their daughter died when a car ploughed into her as she was walking.
The daughter and her mother, who mostly handled the household finances, had an agreement that she would contribute towards her parent’s household expenses until the day her mother received her old-age pension.
The mother from North West province, only identified as GL Selka in the judgment, turned to court after her daughter Masedi Seleka, 26, died owing to the negligence of a driver who hit her.
The mother told the court she had been a domestic worker for years, but had to resign due to health problems. She and her husband were married in terms of Tswana custom and lived in the Bafokeng area.
Her husband received a lump sum payment when he retired, but the couple used the bulk of the money to buy a house. They were subsequently reliant on her husband’s old age pension of R1 500.
Their daughter lived with them and contributed R1 300 towards the household, which helped to pay for the basic necessities. The family did not have any other means of income.
The mother also explained that her daughter entered into a verbal contract with her in terms of which she undertook to contribute to the household until her mother turned 60 and could get her pension.
Acting Judge F Diedericks said that under common law, a parent had to prove indigence in order to claim maintenance from a child.
“One fact that cannot be overlooked is that in South Africa we live in a country with much diversity with reference to its people and their languages, cultures and customs.”
The judge said the question was whether a citizen of this country should not be entitled to pursue his case on the basis of the law applicable and well known to his own race and culture group as developed by his or her forefathers.
The judge examined in detail African customary law as well as what was written on the subject. He said that according to one author who wrote about Tswana customary law, the duty to maintain parents initially vested in the male child.
But he said it was well known that times had changed and now African females were competing on the same work level as their male counterparts.
“It is therefore in this day and age no reason in law or logic that it cannot be said that a female African does not have a duty to maintain her parents if maintenance is needed by such parents.”
The judge said South African customary law placed an obligation on a child who is financially able to do so to provide maintenance to his or her needy parents.
The judge examined the household expenses and income of this family and said there was no doubt they were indigent.
It was clear there was a contract between the mother and her daughter that the latter would contribute R1 300 a month until her mother received her old-age pension, he said.
This duty could no longer be fulfilled as the daughter had died. In terms of the principles of the South African customary law, the parents were thus entitled to be compensated for the financial loss they are suffering, he said.
Pretoria News