Johannesburg - The Constitutional Court will on Thursday hear an application for leave to appeal in relation to foster care grants and the Road Accident Fund (RAF).
This followed a Supreme Court of Appeal (SCA) decision on whether foster care grants amounted to double compensation and were deductible from compensation paid by the RAF for loss of support.
Wayne Saleem Coughlan brought the application against the RAF in his capacity as a court-appointed representative of three orphaned children.
The children were orphaned when their mother was hit by a car in June 2002.
Their maternal grandparents successfully applied to be foster parents in terms of the now-repealed Child Care Act and received foster care grants of R770 per month for each child.
Prior to the death of their mother two of the children had primarily lived with the grandparents and their mother made financial contributions towards their care.
Coughlan lodged a claim with the RAF for loss of support on behalf of the children.
The RAF admitted liability and both parties agreed that the damages amounted to R112 942.
However, the RAF believed the amount the foster parents had received for the grants should have been deducted from the amount of damages awarded. A failure to do so would have amounted to double compensation.
Coughlan approached the high court and was successful in getting an order declaring that the foster care grants were not deductible from the RAF loss of support damages.
The RAF appealed against the decision in the SCA which upheld the appeal and set aside the high court judgment.
The court found that there was no evidence which showed that before the death of their daughter the grandparents needed additional funds to take care of the children. It was as a result of the mother dying that the grandparents applied for the foster care grants.
Since the amount of the foster care grants exceeded the damages agreed to be paid by the RAF, no compensation was paid.
Coughlan would argue in the Constitutional Court that the provision of the foster care grants by the state was in fulfilment of its constitutional obligations and so it could not be said that payment of damages for loss of support created double compensation.
The RAF would argue that the payment of the grants was directly linked to the death of the children's mother and so constituted double compensation which should be deducted.