by ChiddyDamages for loss of support
Death takes away more than just the life of one person. It ends dreams, aspirations and hopes for not only that person but in most cases, even those of his or her loved ones. Others lose the breadwinners in their family and life changes forever. Fortunately, the law has provided a remedy to enable those who lose their loved ones to receive the necessary support through what are known as ‘damages for loss of support’.
I must make it clear from the onset that the life of a loved one can never be compensated by money. The loss of a loved one is incapable of being quantified. However, the law sets in to provide compensation for the loss of support that one had been receiving from their loved one.
The main requirements that one must establish in such a claim are as follows:
1. A wrongful act by the defendant which caused the death of the deceased
2. A legal right to be supported by the deceased vested in the Plaintiff prior to the death of the deceased
3. Loss in the sense of a real deprivation or anticipated support
Each of these requirements will be examined in detail below.
1. Wrongful act by the defendant
The Plaintiff must be able to show that there was a wrongful act by the defendant which caused the death of the deceased person. In the Zimbabwean case of Joyce Mwachinduka v Minister of Home Affairs and Three Others (2006), the Plaintiff’s husband had been shot during a confrontation between law enforcement officers and workers at an industrial action. The Plaintiff argued that the Defendants had acted negligently in using excessive force to control a peaceful industrial action. Whilst the Defendants had sought to counter this argument by stating that what they did had been necessary to contain the volatile situation that had arisen at the workplace, the court found that the law enforcement officers had been unduly and unjustifiably aggressive in dealing with the workers and thus had acted unlawfully. Accordingly, the court found in favour of the Plaintiff.
It is important that the acts of the defendant must have caused the death of the deceased. Without the death of the person supporting the Plaintiff, the court will not award damages for loss of support. In a South African case of Aaron Jonathan Brooks v The Minister of Safety and Security (2008), the Plaintiff’s father had been convicted and sentenced to a lengthy imprisonment after he had shot and killed his wife and daughter. The Plaintiff then sued the Minister for damages of loss of support on the basis that the incarceration of his father had led to his loss of support. The Plaintiff in that case was unsuccessful as the court found that he had failed to establish the basic requirement for such a claim, that is, the death of the person supporting him. The court further stated that the Plaintiff’s father could not benefit from his own wrong as would have happened if the court would have awarded damages flowing from his incarceration.
2. Legal right of support
The deceased must have had a legal duty to support the Plaintiff at the time of his death. The Plaintiff must prove that he or she could not support themselves and that they were therefore dependent upon the support from the deceased. The duty to support the Plaintiff must have arisen during the deceased’s lifetime. Therefore, a parent cannot sue in the case of a minor child from whom they received no support (except in cases where the minor child was supporting the parent).
The duty to support must also be legal, that is, there must have been a legal obligation incumbent upon the deceased person. In a certain Zimbabwean case, the deceased had been maintaining his employee’s child out of his generosity and benevolence. Upon his death, the employee sought to claim maintenance on behalf of her child on the basis that the deceased had been maintaining him during his lifetime. In that case, the court declined to grant an order in favour of the employee as it found that whilst the deceased had indeed been maintaining the child, there had been no legal obligation on him to do so such as to salgen.it burden the estate. Although in that case, the issue revolved on a deceased estate, the same principle of maintenance applies as there must be a legal duty to support or maintain.
3. Loss-real deprivation or anticipated
The Plaintiff must be able to show that they indeed suffered loss of support and such support must have been financial.
The South African case of Lategan v Road Accident Fund is pertinent to illustrate the application of this principle. The facts of that case were that the Plaintiff was the sole breadwinner in their family and during the deceased’s lifetime, he had received no support from her (the deceased was his wife). However, she had been the one looking after their child. After her death, he resigned from his job to look after the child. The court declined to award him damages as he had failed to prove that he had lost any financial support arising from the death of his wife.
One who seeks to make such claim must also ensure that they have sufficient evidence to establish the income that the deceased was earning during his lifetime. It must be noted that the courts will not rely on the expenses incurred by the Plaintiff for it is a basic fact of life that expenses may often be much higher than a breadwinner’s earning capacity. See Caroline Mabaire v Shepherd Jailosi and Another).
In that case, the Plaintiff succeeded in presenting sufficient evidence to the court of her late husband’s earnings and the court awarded her damages in the sum of One Hundred and Eight Thousand United States Dollars (US$108 000.00)!!!
This remedy must never be overlooked as it provides relief to those who would have lost their loved ones through the unlawful actions of another. A case in point is that of the recent King Lion bus disaster where the negligent and reckless actions of the bus driver took the precious lives of 43 people.
There is an old adage which says vigilantus non dormientibus jura subveniunt, which simply means, the law will help the vigilant but not the sluggard. As I stated at the onset, the compensation is not for the loss of a life but for the loss of support derived from that life. Whilst the loved one’s life is irreplaceable, the lives of those remaining must not be put into perpetual turmoil.
by ChiddyA Guide to Estate Planning
The book of Isaiah, in particular Chapter 38 verse 1, the prophet Isaiah says to Hezekiah “This is what the Lord says: ‘Put your house in order because you are going to die, you will not recover.’”
It is a wise instruction that one must put their house in order before they depart from this earth. After all, death is certain amongst all people. Even Ahithopel who committed suicide simply because his advice had not been followed, still had the decency to put his house in order before committing suicide.
Sadly, a lot of us today do not plan for a tomorrow that we are absent from. Estate planning must be done by all, no matter how rich or poor. Others may wonder what estate planning is. In terms of the Blacks Dictionary, estate planning is the process of setting up instructions for estate asset disbursement to heirs at the owner/author’s death.
Another legal dictionary, Wex, states that it is the process by which an individual or family arranges the transfer of assets in anticipation of death. An estate plan aims to preserve the maximum amount of wealth possible for the intended beneficiaries and flexibility for the individual prior to death. Put simply, estate planning is preparing for the management and/distribution of one’s assets in the event of death.
Estate planning must not be confused with estate administration as the latter is mostly to do with the distribution of the assets of an estate after one has passed on. Examples of estate planning include the use of wills, family trusts and donating assets amongst others. There are many advantages associated with estate planning, some of which are listed below:
- Reduction in taxes
If done correctly, estate planning can lead to lower taxes being payable by an estate. For example, one can donate their house to their child (and retain the right to live there until their death!!) thereby avoiding paying estate duty on that property as it would have ceased to be an asset of the deceased person. Please note that there is a difference between avoiding and evading tax, the latter is illegal. • Minimises conflict and potential litigation
Where one has set out a clear estate plan, the risk of conflict amongst the beneficiaries is greatly minimised as the beneficiaries to an estate are well-defined in terms of their description and the proportion or extent to which they are to benefit would be stated. Whilst even when estate planning has been done, there may still be disputes, the magnitude of such is reduced. • Control over the management and distribution of the estate
One is able to appoint those who will manage the estate and further set out how their property is to be distributed. In instances where estate planning has not been done, the estate assets may end up falling in the wrong hands where the beneficiaries are deprived of any access to it. • Less stress for the owner
Where one’s house in order, they are generally peaceful. It is a sad situation where potential beneficiaries/heirs fight over one’s assets when they are still alive and this only stresses the owner of the estate. However, if one puts a good estate plan in place, such situations may be avoided. Generally, our culture discourages one from making arrangements in anticipation of one’s death as it is believed to invite undesirable consequences. However, estate planning is very important as outlined above. Even Ahithopel knew better when it came to estate planning!!!!
What follows is a series of the various methods of estate planning, stay tuned!!!!!