Court name
High Court
Case number
1769 of 2004
Title

Van Wyk v Tshoopala (1769 of 2004) [2012] NAHC 225 (07 August 2012);

Media neutral citation
[2012] NAHC 225
Coram
Parker J





CASE NO







‘’Not
Reportable’








CASE NO.: I 1769/2004













IN THE HIGH COURT OF
NAMIBIA








MAIN DIVISION, HELD AT
WINDHOEK













In the matter between:













MARTHA CECILIA VAN WYK
….........................................................................Plaintiff



(born VAN DER WESTHUIZEN)








and








AMBATA MARTIN
TSHOOPALA
…...............................................................Defendant













CORAM:
PARKER AJ








Heard on: 2012 July 16 –
19



Delivered on: 2012 August
7



___________________________________________________________________








JUDGMENT



___________________________________________________________________


PARKER
AJ
: [1] On 29 June 2010 this Court gave judgment for the
plaintiff in an action she had instituted in her personal capacity
and in a representative capacity as mother and natural guardian on
behalf of her three children who were minors when the combined
summons was filed with the Court on 22 February 2002. The plaintiff
claimed from the defendant N$360,000-00, and later amended the claim
to read N$224,427-00, plus interest a tempore morae, costs of
suit and further and/or alternative relief. By agreement between the
parties, the issue of quantum of damages was held over for decision
in due course. This judgment concerns the quantum of damages.






[2]
The plaintiff herself gave evidence on behalf of the plaintiff, and
Mr Dirk Sauber, an actuary, also gave expert evidence on behalf of
the plaintiff. I accept Sauber as an expert; and I did not hear the
defendant to maintain otherwise. It is important to make the point
that Sauber’s computation and the method applied remained
unchallenged at the close of the plaintiff’s case, and I have
no good reason not to accept Sauber’s computation. It is
equally significant to note that when it was his turn to put his case
to the Court the defendant did not put forth any matter of substance
capable of persuading the Court not to accept the Sauber computation.
The only significant and relevant point that emerged from the
defendant’s cross-examination of Sauber was Sauber reducing the
net total loss from N$157,432-00 to N$154,980-00; as I have already
mentioned previously. The claim was then amended in accordance
therewith.






[3]
The first consideration I should look at is to ascertain whether any
loss at all has in fact been suffered by the plaintiff and the
children, namely, Glaudina, Christonette and Albertus, before coming
to computation of such loss; that is to say, the plaintiff must
establish actual patrimonial loss, accrued and prospective, as a
consequence of the death of the breadwinner, namely, the plaintiff’s
husband and the children’s father. (Santam Insurance Co Ltd
v Fourie
1997 (1) SA 611 (A), accepting Evins v Shield
Insurance Co Ltd
1980 (2) SA 814, and relied on by Shakenovsky AJ
in Lombrakis v Santam Ltd 2000 (3) SA 1098 (W)) Furthermore,
what is important is that the ascertaining whether any loss has at
all been suffered is ‘a pure question of fact’ (Santam
Insurance Co Ltd v Fourie
supra at 615D).






[4]
Having regard to the parties’ joint proposed pre-trial order
the following issues of fact are to be resolved during the trial: (1)
the quantum of the plaintiff’s and the minor children’s
damages, (2) the earnings of the deceased, (3) the deceased’s
age at the time of death, (4) the earnings of the plaintiff at the
time of the deceased’s death, and (5) the children’s ages
at the time of the deceased’s death.






[5]
From the evidence I make the following factual findings which go to
resolve the issues of fact. At the time of the deceased’s
death, Glaudina was about 18 years old, Christonette was about 15 and
Albertus was about 11. The earnings of the plaintiff was N$2,200-00
per month. The earnings of the deceased was around N$1,600-00 per
month and he was 42 years old at the time of his death.






[6]
Furthermore, both parents, that is, the deceased and the plaintiff
were under a duty to support each other and the minor children.
Consequently, the money paid into the pool of the family by the
deceased and the plaintiff must undoubtedly be taken to have been
contributed for the purpose of his or her own maintenance and also
for the maintenance of the other spouse and the children. I accept
Sauber’s method and reasoning that the deceased and the
plaintiff had put together their income into one pool from which the
joint estate was supported. The combined income of the family has
been notionally divided in such a manner that the deceased and the
plaintiff received two shares each and the children one share each of
the pool. When the deceased died, the plaintiff and the children lost
the support which the deceased provided. They are therefore entitled
to be compensated for this. On the totality of the evidence I am
satisfied that the plaintiff has established that she and the
children have suffered patrimonial loss as a consequence of the death
of a breadwinner, the deceased.






[7]
I now pass to consider the computation of loss. In doing so the
Court, as I have said more than once, has the assistance of the
Sauber expert report which in my view is not tainted with
artificialities or fallacies: it presents a sophisticated and
sustainable arguments and conclusions and so it should be supported.
Nevertheless, in assessing the compensation the Court has a large
discretion to award an amount which under the circumstances the Court
considers right and also fair, I should add. Thus, the Court may be
guided but is certainly not tied down by inexorable acturial
calculation. (See Lambrakis v Santam Ltd supra, relying on
Legal Insurance Company Ltd v Botes 1963 (1) SA 608 (A).)
Moreover, it seems to me that the Court is entitled to take into
account equitable considerations in favour, in my opinion, of the
plaintiff or the defendant. And in that regard, the Court is entitled
to take into account the element of harshness. This factor would have
been invoked in favour of the defendant but he did not place any
evidence before the Court to enable the Court to properly ascertain
in what manner the payment of the compensation might harshly affect
him. He said only that the amount claimed is more than his annual
salary, and he has some seven children to maintain. The defendant’s
ipse dixit is not enough. No evidence in that respect was
placed before the Court, as I have said, in support of his
submission, to enable the plaintiff to have challenged it. The
submission can, therefore, carry little weight.






[8]
Be that as it may, what is good for the goose must be good for the
gander in considering the two Basis underlying the Sauber report
computation. Under Basis A, the deceased would have retired at the
age of 60, but under Basis B at the age of 65. Since no credible
evidence was placed before the Court, establishing conclusively that
Basis B should apply, for equitable considerations the computation
under Basis A is taken as supported in this proceeding, and so,
therefore, the N$152,727-00 should be reduced by N$2,452-00, as was
conceded by the plaintiff in respect of Basis B, for the total amount
to come to N$150,275-00 I have also taken into account the fact that
Glaudina who was as at 1 August 2012 (the pegged – down date
for the Sauber expert report) about 29 years old and has been working
– even if as a casual employee – since 2002; and so
Glaudina must at least notionally be self-supporting. It must be
remembered that the amount claimed is in the nature of compensation,
it is not to make the plaintiff and the children rich. It is to
compensate them for their pecuniary loss, that is, loss of support of
a breadwinner.






[9]
From the above reasoning and conclusions, in my judgement the
plaintiff is entitled to recover damages from the defendant in
respect of loss of maintenance and support as a consequence of the
death of the deceased.






[10]
In the result I grant judgement for the plaintiff, and I make the
following order in respect of damages:







  1. The
    defendant must pay the plaintiff N$130,132-00, plus interest a
    tempore morae
    from the date of this judgement to the date of
    final payment.








  1. The
    defendant must pay the plaintiff’s costs, including costs of
    one instructing counsel and one instructed counsel and qualifying
    costs of Mr Dirk Sauber.


















________________



PARKER AJ


















COUNSEL ON BEHALF OF
THE PLAINTIFF:
Mr I D Titus








Instructed by: Koep
& Partners












ON BEHALF OF THE
DEFENDANT:
Mr A M Tshoopala



(In person)