IN THE COURT OF APPEAL OF LESOTHO
C OF A (CIV) 20 OF 2011
In the matter between:
LESOTHO NATIONAL GENERAL INSURANCE
COMPANY LIMITED APPELLANT
MASERABELE MAKAKOLE RESPONDENT
HEARD : 13 OCTOBER 2011
DELIVERED: 21 OCTOBER 2011
CORAM: MELUNSKY JA
Claim for damages for loss of support and funeral expenses arising out of death of deceased in motor collision. Award of M389 000 by High Court reduced to M344 400 on appeal – appellant offering M141 000 – appellant to pay costs of appeal. Although the deceased husband was not paying maintenance to his wife (the plaintiff) at the time of his death, the evidence established that he would have paid maintenance to her if she required it. Despite lack of evidence regarding the plaintiff’s requirements and her income, sufficient facts available to establish her claim.
 On 11 November 2004 and in Lancer’s Gap Road at Baruting – Thuathe, a collision occurred between a motor vehicle C2116, driven by Thabiso Khamane and a motor vehicle D5788 driven by Thabo Pius Makakole (“the deceased”). As a result of the collision the deceased, who was the plaintiff’s husband, sustained serious injuries from which he died on the same day. For the purposes of this appeal it is not disputed that the collision was due to the sole negligence of the driver of motor vehicle C2616 which was insured by the defendant (the appellant in the appeal but referred to hereinafter as the defendant) in terms of the Motor Vehicle Insurance Order 26 of 1989.
 The plaintiff and the deceased were married to each other according to civil rites on 18 July 1981. Two children were born of the marriage, a boy, Serabele, who was born on 27 November 1981 and a girl, ‘Mathabo, born on 9 October 1987. The defendant does not dispute that as a result of the deceased’s death the plaintiff and certain other dependants have suffered damages due to the support which they would have received had he not been killed. What is in issue is the quantum of damages to which the plaintiff and the other dependants – the two children and the deceased’s mother, Mrs. Palesa Makakole, - are entitled.
 The plaintiff instituted action in the High Court against the defendant on 13 September 2006. At that time the plaintiff’s son was a major and obviously had full legal capacity. He and the deceased’s mother should have joined in the action as co-plaintiffs and the plaintiff should have sued only in her personal capacity and in her capacity as mother and guardian of her daughter. What is more the claims were not itemised in the declaration: what was claimed was a globular amount of M502 096.58. The plaintiff’s lack of capacity was one of the issues raised in the defendant’s special plea but we were informed by counsel that the special plea was withdrawn after an application by the plaintiff to authorize her to represent the other dependants was granted.
 The plaintiff was the only witness to give evidence on the quantum of damages and the amount of M502 096.58, claimed by her, was contained in a written schedule. At the trial she conceded that M36 000 had been duplicated in arriving at the total and the claim was, in effect, reduced to M466 096. Mofolo AJ in the High Court awarded the plaintiff M389 000 and costs. It is against this award that the defendant appeals to this Court, the contention being, according to the notice of appeal, that the plaintiff was entitled to be awarded no more than M135 000.
 At the time of his death the deceased was a builder, with a monthly income of M15 000 from a construction business. Whether he was an employer or had an interest in or even owned the business unfortunately does not appear clearly from the evidence, but the plaintiff said that the deceased “had a building construction” Rainbow Construction (Pty) Ltd. He also owned land and was described as a farmer and he earned some income from this activity according to the plaintiff but she was not able to estimate the amount that accrued to him from this source.
 For some time before the deceased’s death the plaintiff and her children had lived in Geneva, Switzerland, where she was employed by the Lesotho Government at its embassy in that city. Serabele was a student at an institution known as the Business Management University and ‘Mathabo attended school in Geneva. The plaintiff supported herself and the children but the deceased paid Serabele’s tuition fees. ‘Mathabo’s school fees were paid by the Lesotho Government.
 It is most regrettable that nothing is known about the plaintiff’s standard of education, her qualifications and experience and the capacities in which she was employed when she worked. Moreover, apart from some evidence about her income when working in Geneva, there is nothing on record in respect of her earning capacity. The plaintiff told the trial court that she was employed by the Lesotho Government on contract and was initially posted to Egypt and later to Geneva. When her contract expired in about May 2005 she returned to Lesotho. She was unemployed until September 2006 when she commenced working for a firm known as Quantum Leap Investments in Bloemfontein. She remained with that firm until March 2010 and during the following month she started to work for a concern called Mediguard in Lesotho and she was still employed by that firm at the time of the trial. The plaintiff was uncertain as to her earnings in Switzerland. While she insisted that she earned no more than 3 000 Swiss francs (SF), presumably per month, she agreed that her earnings could have been as high as SF 4 900. The rate of exchange was not adequately proved, the only evidence in this regard being the plaintiff’s version that 1SF was the equivalent of 5.77 Maloti.
 With that background I will now specify how the plaintiff’s claims are made up, how they were dealt with by the court a quo and the attacks launched on them by the appellant’s counsel. Thereafter I will attempt to determine what amounts should be awarded by this Court, which is no easy task having regard to the paucity of evidence placed before the Court a quo. The plaintiff’s claim of M466 096 is made up as follows:
(i) M12 000 for each child and the deceased’s mother (M36 000 in all), which is calculated at the rate of M500 per month for 2 years in respect of each dependant.
(ii) M168 000 is claimed by the plaintiff personally being loss of support calculated at the rate of M1,000 per month over 14 years on the assumption that maintenance would have ceased when the deceased retired at the age of sixty.
(iii) M173 000 represents the amount claimed for Serabele’s university fees for two years after the deceased’s death. The plaintiff testified that she raised a loan of M150 000 from a Swiss bank and together with her own funds and some assistance from Serabele she was able to pay the said fees in full.
(iv) Funeral expenses amounting to M88 996.59.
 In the court a quo Mofolo AJ reduced the claim of 173 100 in respect of Serabele’s university fees to M100 000. This amount is accepted by the appellant and, there being no cross-appeal, nothing further needs to be said about it. The learned judge also reduced to claim for funeral expenses to M85 000 but allowed the claim for loss of support in full. In his able argument before us, counsel for the defendant submitted that the amounts awarded to the plaintiff’s children and, especially the plaintiff’s personal claim for loss of support, had not been established. He also submitted that the claim for funeral expenses had not been proved and, moreover, that no amount could be recovered by the plaintiff as she paid only a small and unspecified amount, the balance being contributed by members of her family.
 I first turn to consider the claim for funeral expenses. It was submitted on the appellant’s behalf that the trial Judge misdirected himself in awarding M85 000 under this heading. Mofolo AJ’s approach was to accept that funeral expenses had obviously been incurred but that the quantum had not been proved. He nevertheless went on to say:
“…..because of deceased’s standing in the community notwithstanding that expenditure is not certified [my emphasis] I have allowed M85 000 for funeral expenses.”
The learned judge’s award of M85 000 was an arbitrary assessment of the amount to which, in his view, the plaintiff was entitled. In attempting to establish the claim the plaintiff’s counsel referred to a batch of documents annexed to the further particulars which, he said, included the details of the funeral expenses. This the plaintiff confirmed. It is not clear, however, what each of these numerous documents – accounts and receipts – relate to, whether they were connected with the funeral and why they were reasonably incurred. In my view it is not sufficient to refer to a batch of documents and expect this Court to analyse each one in an attempt to relate it to a funeral expense. There are two exceptions, however. The first relates to evidence to the effect that the cost of a coffin amounted to M50 000 and this was confirmed by a receipt from MKM Funeral Services for the said amount. The second concerns a receipt of M400 signed by the cemetery master of Maseru. It follows, therefore, that I would limit the funeral expenses to M50 400.
 The fact that members of the plaintiff’s family assisted her in paying for the costs of the funeral does not mean that she cannot recover those expenses. She made it quite clear that the assistance provided were loans to her which she intended to repay. She explained that she would make repayment after she was compensated by the defendant. There seems to me to be no reason why this evidence should be rejected. On the contrary the plaintiff appeared to be a truthful and honest witness and her account of the arrangements made with members of her family is in accordance with the customs and traditions of her nation.
 The final submissions made on the defendant’s behalf concerned the quantum of damages awarded to the plaintiff personally and to her children. Counsel relied in this regard on the principles applicable to damages arising out of the death of a breadwinner as set out in Santam Insurance Company Ltd v Fourie 1997 (1) SA 611 (A). In particular counsel emphasized that the dependent must establish actual patrimonial loss; that this is not established merely because the deceased was under a duty to support the plaintiff; and whether maintenance was paid is a question of fact. I have no difficulty in accepting these principles but in deciding the factual question, the fact that the breadwinner was not paying maintenance to the plaintiff at the time of his death is not conclusive, provided that he had a legal duty to support her and that the evidence established that he would, as a matter of probability, have paid maintenance to her if her situation required it.
 The defendant’s counsel would seek to limit the plaintiff to damages for loss of support for fifteen months, i.e. while she was unemployed from May 2005 to September 2006. The assumption made by counsel – that the deceased did not maintain the plaintiff while she was in employment – seems to have been based on the fact that he did not maintain her when she was working in Geneva. It is true that the plaintiff maintained herself and the children when she lived in Geneva. However she did not have to pay for the children’s education or for accommodation. What is more the deceased paid Serabele’s university fees, amounting to M86 550 per annum or over M7 000 per month. As the plaintiff’s late husband paid almost half of his own monthly income to cover the costs of his son’s education, it is not surprising that he might not have been able to maintain his wife who, moreover, seems to have received an adequate salary at that stage. In my view, therefore, it cannot be assumed that the plaintiff’s entitlement for financial support from her husband ipso facto ceased whenever she was in employment.
 The difficulty that remains for the plaintiff is the complete lack of evidence concerning her income when she was employed in Bloemfontein and Maseru after the deceased’s death. Viewing the facts in their totality, however, it is necessary to take the following into account: the plaintiff and the deceased were married for some 24 years: he clearly was a devoted family man, which can be gathered from his payment of a considerable amount for his son’s education; the amount of M1 000 per month claimed by the plaintiff is a modest sum and would have been well within the deceased’s means; and he was a man of standing in his community and would obviously have wanted his wife to live on a reasonable scale.
 In the result, and despite the deplorable lack of detailed information about the plaintiff’s needs, requirements and earnings, sufficient has been produced to establish that had he not been killed the deceased would have continued to support his wife at a minimum amount of M1 000 per month for at least 14 years. It is also probable that had the deceased not been killed his income from Rainbow Construction (Pty) Ltd would have increased, at least to keep pace with inflation and that he would also have had some income from his farming activities. I am consequently satisfied that the plaintiff is entitled to M168 000 for loss of support. This is the amount claimed and the amount awarded by the trial court. I merely add that, in the absence of actuarial evidence, I am making no deductions in arriving at the present value of the prospective loss. This, in all events, would be counter-balanced by ignoring any increase in the deceased’s income.
 The defendant accepts that the claim of M12 000 being the loss of support for the deceased’s mother is reasonable but, quite correctly in my view, submits that the amounts claimed for loss of support for Serabele and ‘Mathabo should be reduced to M6 000 and M8 000 respectively.
 The defendant’s counsel submitted that the award of the court a quo should be reduced to M141 000 being M26 000 for loss of support for the deceased’s mother and his two children, M100 000 for the university fees for Serabele and M15 000 for the plaintiff personally. We do not agree with this submission but we are of the view that the trial court’s award, for the reasons detailed in this judgment, should be reduced by only M44 600 to M344 400. The result is that this Court’s award is more than M200 000 than the amount suggested by the defendant. The defendant, however, has succeeded in having the trial court’s award reduced substantially and it has therefore been partially successful in the appeal. In our view, therefore, there should be no order as to the costs of appeal.
 The following order is made:
1. The order of the High Court is set aside and is replaced with the following:
“1. The total amount awarded to the parties as a result of the death of the deceased is M344 400, made as follows:
(a) Loss of support sustained by the following:
(i) The deceased’s mother M12 000
(ii) Serabele Makakole M 6 000
(iii) ‘Mathabo Makakole M 8 000
(iv) ‘Maserabele Makakole
(the plaintiff) M168 000
(b) Funeral expenses M 50 400
(c) University fees for
Serabele Makakole M100 000
2. The defendant is to pay the costs of the action.”
2. Save as aforesaid the appeal is dismissed with no order as to costs.
JUSTICE OF APPEAL
ACTING JUSTICE OF APPEAL
For the Appellant : Adv P. Loubser
For the Respondent: Mr. M. Ntlhoki
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