ANTHONY AND ANOTHER v CAPE TOWN MUNICIPALITY 1967 (4) SA 445 (A)
Flynote : Sleutelwoorde
Parent and child - Duty of child to support indigent parent - Scope of such duty where child a minor
- Indigence - Proof of - Failure of. Headnote : Kopnota
When small boys or girls are ordered by their parents to perform services, whether or not the
parents are indigent, they are obliged to do what they are told and thus can be said to have a
duty to do what they are told. But that duty, arising as it does, as a result of parental command,
is not a legal duty of a kind which can be said to be the subject of compensation merely
because, owing to the death of the child, the services can no longer be commanded.
The appellants had sued the respondent for damages for the loss of support arising out of the
death of their son, aged 11 years, through the negligence of the respondent. Their son had
assisted his mother in the hawking of fish. The trial Court had granted absolution on the ground
that the plaintiffs had failed to prove that they had suffered any damages. In an appeal the Court
dismissed the appeal (HOLMES, J.A., dissenting), on the ground that the appellants had failed
to prove that they were indigent or that they had sustained any damage.
The statement of TINDALL, J.A., in Oosthuizen v Stanley, 1938 AD 322 at pp. 327, 328, that a
minor child is under a duty to provide or contribute to his parents' support 'if he is able to do so'
meant, in its context, 'that he is able out of his means' so to provide or contribute. (VAN BLERK,
J.A., silente; HOLMES, J.A., dissentiente.)
The decision in the Cape Provincial Division in Anthony and Another v Cape Town Municipality,
confirmed. Case Information
Appeal from a decision in the Cape Provincial Division (VAN HEERDEN, J.). The facts appear
from the reasons for judgment.
Miss L. van den Heever, for the appellant: In the absence of rebutting evidence, it was proved
on a balance of probabilities that appellant and his family were indigent, and that the support of
the deceased was necessary. See Waterson v Maybery, 1934 T.P.D. 210 at pp. 213 - 5. The
test is not whether the father earns enough for his own support, but whether he is indigent
against the background of his duty to sustain his wife and children. See Oosthuizen v Stanley,
1938 AD 322 at p. 331; Volkenborn v Volkenborn, 1946 NPD 76 at p. 77. Alternatively, the onus
rested on defendant to prove that loss could reasonably have been mitigated. See Haziz v
Transvaal and Delgoa Bay
1967 (4) SA p446
VAN BLERK JA
Investment Co. Ltd., 1939 AD 372 at p. 388. Respondent placed no evidence before the Court
to justify such a conclusion. See 1958 S.A.L.J. pp. 75 - 6. It is trite law that a child, capable of
contributing to the maintenance of his parents, is obliged to do so where their indigence
necessitates this. See Voet, 25.3.8; Jacobs v Cape Town Municipality, 1935 CPD 474 at p. 479;
Oosthuizen v Stanley, 1938 AD 322 at pp. 327 - 8. Further, 'maintenance' only exceptionally
means a cash contribution. It is normally an obligation ad factum praestandum, not ad pecuniam
solvendam, and may be discharged in kind, or by performing services, or in other manners. See
Voet, 25.3.4; Union Government v Warneke, 1911 AD 657 at pp. 663, 668 - 9, 672 - 3; Abbott v
Bergman, 1922 AD at p. 56; Plotkin v Western Assurance Co. Ltd. and Another, 1955 (2) SA
385 at pp. 393F - 395G; Groves v Baillie, 1942 W.L.D. 34 at p. 37; Betram v C.S.A.R., 1905
T.H. 234 at p. 237. Therefore the appellants proved that they had suffered pecuniary loss as a
result of the loss of the necessary contribution made to the maintenance of the family, by the
deceased. As regards the quantum, the fact that speculative factors enter into one's calculation
does not debar appellant from recovering. The Court must do the best it can with the facts on
record. See Oosthuizen v Stanley, supra at p. 332.
D. O. Delahunt, for the respondent: The onus was upon appellant to satisfy the Court, upon a
balance of probability: (a) that appellant and his family were indigent, and (b) that the deceased
was able to contribute to the support required. See Oosthuizen v Stanley, 1938 AD 322 at pp.
327 - 8; In re Knoop, 10 S.C. 198 at p. 199; Petersen v. South British Insurance Co. Ltd., 1964
(2) SA 236 at p. 238; Jacobs v Cape Town Municipality, 1935 CPD 474 at p. 479; Ford v Allen,
1925 T.P.D. 5; Manuel v African Guarantee Ltd. and Another, 1967 (2) SA 417 at pp. 418 - 20.
The reluctance on the part of either parent, or the lack of endeavour in obtaining or continuing
an occupation which produces income, does not cast a duty upon their children to contribute
toward their support. See Oosthuizen v Stanley, supra at p. 328.
Miss van den Heever, in reply.
Cur. adv. vult.
Postea (September 14th).
VAN BLERK, J.A.: I agree with the conclusion reached by MILNE, A.J.A., and with his reasons
for holding that the appeal must be dismissed on the ground that appellant failed to prove that
he suffered damage. I do not consider it necessary to express an opinion upon the legal
question whether a boy of 11 in the situation of Noel was under a duty to contribute to the
support of his parents, if they were indigent.
HOLMES, J.A.: The appellants are husband and wife, married in community of property. In the
Cape Provincial Division they sued the Cape Town Municipality for damages for loss of support
arising out of the death of their son Noel on 15th May, 1964. He was electrocuted when he
touched a fallen high tension wire. He was then 111/2 years old.
1967 (4) SA p447
having been born on 26th November, 1952. Negligence is not in issue, for the respondent
conceded its liability to pay any resultant damage, in view of the provisions of sec. 50 (1) of the
Electricity Act, 1958. It was common cause in argument that damages for loss of support were
claimable only if, inter alia, the deceased owed the appellants a duty of support; and I shall deal
with the case on that footing. The defence was a denial that Noel was obliged to give some
support to his parents, and that they had suffered any damage. As to that, on the facts the Court
a quo granted absolution from the instance with costs. The appellants appeal in forma pauperis
against that decision.
The legal position is clear. If parents are indigent, their children, even if minors, are liable to
support them in whole or in part, according to their ability: see Oosthuizen v Stanley, 1938 AD
322, in which TINDALL, J.A., said at p. 327, in fin., to p. 328:
'The liability of children to support their parents, if these are indigent (inopes), is beyond question; see Voet,
25.3.8; van Leeuwen, Censura Forensis 1.10.4. The fact that a child is a minor does not absolve him from his
duty, if he is able to provide or contribute to the required support; see In re Knoop, 10 S.C. 198. Support
(alimenta) includes not only food and clothing in accordance with the quality and condition of the person to be
supported, but also lodging and care in sickness; See Voet, 25.3.4; van Leeuwen, Censura Forensis, 1.10.5;
Brunnemann, in Codicem, 5.25. Whether a parent is in such a state of comparative indigency or destitution that a
court of law can compel a child to supplement the parent's income is a question of fact depending on the
circumstances of each case.'
According to Voet, loc. cit., this duty to support arises ex pietate, out of the sense of dutifulness
which every child owes its parents. The question whether a duty ex pietate arises in any given
case is a factual one. Each case must turn on its own down-to-earth facts, according to the
circumstances of the particular family.
I would add that in Knoop's case, supra, DE VILLIERS, C.J., held that a person in the position of
a minor, who had means, was obliged to support his indigent father. It was not necessary to go
further than that, for in that case the minor was a person of means. But in Oosthuizen's case,
supra, TINDALL, J.A., preferred to say, in the passage cited, that a minor's duty to provide or
contribute to the required support arises 'if he is able to'. If the learned Judge had meant 'if he is
able out of his means', he would surely have said so. There is no warrant, in my view, for
restricting a minor's ex pietate duty to assist in the support of indigent parents to cases where
he is a person of means. Who would say, for example, that a penniless but able-bodied
undergraduate, whose parents suddenly become indigent and helpless, does not owe them an
ex pietate duty to buckle to and earn some money to help them? Rather would one say,
adapting the humanitarian reasoning of para. 13 of the Digest 25.3.5, that it is most unjust for a
father to remain in want, while his son is able to help him. And it is clear that the age of a minor
is relevant only in so far as it has a bearing on his ability to provide some support. This ex
pietate duty of support must not be confused with the far lesser role of children in regard to
errands and helping about the house in response to parental authority and the homely adage
that many hands make light work.
With that prelude I turn more fully to the facts of this case, The appellants are Coloureds, in their
thirties, and before Noel's death they had eight children, whose ages ranged from 14 years to 2
years. In 1961
1967 (4) SA p448
the father was substantially incapacitated as a breadwinner because he suffered from a tumour
of the brain and thereafter he underwent seven operations in half as many years. He still suffers
from severe headaches, and regularly has to take pills to relieve them and to ward off fits,
presumably of epilepsy. He cannot be left alone and is unable to speak normally. The family has
no savings. How then did they manage to eke out a livelihood? As not uncommonly happens
where the family is large and the parent poor, some of the children had to gird themselves and
lend a helping hand in the unending struggle to make ends meet.
The eldest child was Daniel, who in 1961 was nine years of age. Because of his father's
disability he was then taken away from school, although he could neither read nor write.
Thereafter, about twice a week, he and his father used to go into the bush with the family horse
and cart and bring back some wood. This they would cut into firewood logs at the house when
the father felt well enough, apparently using a two-handed saw, for the mother said that Daniel
could not saw alone. Then they would hawk the firewood in the cart once a week, with Daniel
doing the driving. In this way they earned about R10 a week. This did not suffice to feed ten
mouths; so in 1961 the mother and Noel, an intelligent boy who came after Daniel in age,
started to use the horse and cart on two mornings a week for the purpose of hawking fish
bought from a merchant. The licence was in the mother's name, but it was Noel who drove the
horse and cart. The mother said that she could not drive. It was also Noel who blew the horn.
We were told that this is the traditional way in Cape Town of letting people know that the
fishmonger draws nigh. The mother said that she could not blow the horn. She was not
challenged on this, so one need not speculate whether the blowing of the horn involves any
peculiar difficulty in the co-ordination of lips and lungs. Noel also sold the fish. In fact, one
gathers from the mother's evidence that she only accompanied him on the rounds because a
young boy could not be a licensed hawker. Nevertheless, she occasionally left him to do the
hawking on his own. This activity netted about R10 a week on the average. Noel attended
school, but it is clear that twice a week there was some irregularity about the hours of his
attendance, caused by his hawking.
At the date of Noel's death on 15th May, 1964, the next four children were at school. Of these,
one was an intelligent girl, another a rather stupid girl, and there was a boy who suffered from
fits. Nothing is said about the youngest boy at school. There were two toddlers at home. And a
further baby arrived in 1965. Daniel could not assist with the fish hawking because, apart from
his contribution as a woodcutter, he had to keep an eye on his father and the children when his
mother was out.
After Noel's death the mother did not continue with hawking of fish, not being able to drive the
horse or blow the indispensable horn. With the resultant loss of income of about R10 a week the
family fell upon hard times and had to tighten their belts. Indeed they were twice ejected for
non-payment of rent, and had to sell their horse for R24 in order to keep a roof over their heads.
Fortunately a relative lent them his horse, so the hawking of firewood was continued. The cart is
1967 (4) SA p449
R16. Two relatives are at present helping to the extent of R3 a week between them. It is plainly
a struggle for this family to keep body and soul together. The cold suggestion that these
distressed parents did not really need to sell their horse to pay the rent seems to me out of
touch with humanity and the facts.
Having regard to the circumstances of this stricken family and to the parents' indigence, Noel
was obliged to contribute to their support if he reasonably could; and he clearly did so with his
active participation in the fish hawking. However, the trial Court granted absolution from the
instance on the grounds that -
(a) it was not proved that the parents were indigent; (b) the mother could have
(c) she could without difficulty have obtained the services of Someone else to replace
(d) that it was not proved that Noel was able to or did contribute to the maintenace of the
As to (a), this is answered by what I have said above. And I reject the submission that the wife's
undisputed evidence as to her husband's disability cannot reasonably found a judgment in the
absence of medical testimony. As a wife she is surely competent to know that her husband, who
has had seven operations to his head and cannot speak normally and requires constant care at
home, is most lowly reduced in manhood's estate.
As to (b), it is plain that this humble Coloured housewife, with eight young children and an ailing
husband, already had her hands full, and would have been very hard put to hold down outside
employment, as she herself indicated. This seems to me self-evident, and needs no elaboration.
As to (c), there is nothing to gainsay the mother's evidence which is to the effect that she had to
give up the fish hawking because she could not drive the cart or blow the horn. The practicability
of hiring an assistant was not canvassed in evidence. Furthermore, certain difficulties are plain.
He would have to be a person who was (a) not in regular employment, and (b) content to do
part-time work. And the mother did say she had unsuccessfully made enquiries for someone to
stay with her ailing husband while she was out. Moreover, it seems to me probable that, in so
modest a business, the hiring of an outside assistant would have taken the gilt off the
gingerbread. Finally, it is highly unlikely that the mother would have jeopardised the roof over
the heads of her children if this risk could have been avoided by continuing the fish hawking,
with a hired assistant.
As to (d), the appellants led what evidence they reasonably could, namely that of the mother
and an actuary. The father was present in the Court a quo, but it is understandable that he was
not called, for the evidence is that his disability is such that he is unable to talk normally and
cannot be left alone. It is said that a minutely critical analysis of the mother's evidence reveals
certain flaws impairing her credibility. As to that, it is important to bear in mind, with a perceptive
discernment more compassionate than critical, that the witness was a poor and humble
Coloured woman, beset with children and unintelligent,
1967 (4) SA p450
who could hardly be expected to cope with the drift of counsel's questions with any degree of
Again, it is said that there is a divergence between her evidence and that of the headmaster and
of the teacher (Miss van Neel) on the question of Noel's absence from school. The answer is
that the evidence of the mother is very fully corroborated by that of the teacher, Miss van Neel.
The mother said that on the mornings of Mondays and Thursdays Noel worked at fish hawking.
With regard to his schooling, she said at p. 31:
'Dit het hom nie teruggesit nie want so gou die vis klaar verkoop is dan trek jy vir hom aan en gaan hy skool toe.'
She also said in answer to a question on p. 30:
'Hoe het jy reggekom om Noel in die hande te kry om jou te help as hy ook op skool was? . . . Ek het vir die
onderwyser gaan vra in die skool om vir hom twee dae af te kry.'
The teacher says corroboratively:
'U het vir haar gesê hy mag 'n bietjie laat kom? - Ja.
Twee geleenthede per week het hy laat gekom? - Ja.
Maar u kon vir die Hof sê dat hy elke week twee maal per week laat was? - Ja, dit weet ek.
U het geweet dat hy besig was om te werk? - Ja.'
The teacher added that she had on several occasions seen Noel in the horse and cart with his
mother and that sometimes she had seen him running into school late; and it is plain from the
context that this was on account of his hawking rounds.
To sum up on this aspect: the mother said that Noel was late for school twice a week and that
the teacher had granted her permission therefor. The teacher fully corroborated this.
In view of such evidence by the mother and the clear confirmation thereof, the fact that the
mother, testifying two years after Noel's death, at one stage mistakenly recollected that he was
absent from school for the whole of Mondays and Thursdays, is not a matter of any moment.
Again, in view of the foregoing evidence and its corroboration, the fact that, at one stage, the
mother thought and said that it was the school principal who had granted her the permission, is
likewise of no consequence. Moreover, the teacher's evidence was that, in accordance with her
duty under the regulations, she marked Noel present if he were at school for only one hour in
the day. Hence the irrelevance of the fact that during the first school term of 1964, i.e. from 24th
January to 26th March, the register showed that he was never once absent for the whole day.
Lastly, counsel urges that Noel did no more than help his mother, like small children responding
to parental behests in the matter of casual chores about the house, or like a farmer's son riding
off on some errand for his father. The comparisons are wholly invalid. What Noel did, week after
week, month in month out, was to play an active and important part in a cash-producing
In the result, on a fair conspectus of the mother's evidence I am satisfied that there is sufficient
proof that Noel was contributing to his parents' maintenance and that they suffered financial loss
as the result of his death.
To sum up, so far, the evidence establishes as a probability:
1967 (4) SA p451
(i) that the parents became indigent when the father fell grievously ill in 1961;
(ii) that Noel was able to and did contribute to his parents' support by his active
participation in the cash-producing activity of fish hawking;
(iii) that, in the stricken family circumstances of this case, considerations ex pietate
reasonably imposed a duty on Noel to help his parents in the way in which he did, and
which did not unduly interfere with his education;
(iv) that the parents suffered financial loss as the result of his death.
I therefore turn to the assessment of damages. When it comes to scanning the uncertain future,
the Court is virtually pondering the imponderable, but must do the best it can on the material
available, even if the result may not inappropriately be described as an informed guess, for no
better system has yet been devised for assessing general damages for future loss; see Pitt v
Economic Insurance Co. Ltd., 1957 (3) SA 284 (N) at p. 287, and Turkstra Ltd v Richards, 1926
T.P.D. 276 at p. 282 in fin to p. 283. The actuary, in the course of his evidence, referred to
mortality tables, rates of interest, currency depreciation, and certain calculations such as the
present value of various sums capitalised over a period of years. This evidence is helpful in a
general way but, as was mentioned in Legal Insurance Co. Ltd v Botes, 1963 (1) SA 608 (AD) at
p. 614, the Court is not tied down by inexorable actuarial calculations. The basic fact is that Noel
and his mother in their joint enterprise were contributing about R10 per week to the family
coffers, but against the value of Noel's contribution must be taken into account about R3 per
week as the estimated value of his keep. How long would his aid have continued? There are
various contingencies. For example, he might well have contributed more as he grew older. His
mother says he is very bright. On the other hand some of the other children might well bring in
something on obtaining employment. Again, the ailing father might, regrettably, die early, which
would terminate his requirement of maintenance but could affect that of his widow. One is
inclined to exclude any reasonable possibility of her re-marriage: it would need an heroic suitor
to plight his troth to an unendowed widow beset with a quiverful of children. And by the time that
they are off her hands, her age would, unhappily, tend to count against her. Lastly, Noel might
have married early and had a large family and been unable to continue his filial benefactions.
Giving all the relevant factors the best consideration I can, I come to the conclusion that it would
be fair to both sides to award to the parents compensation in the sum of R1,500.
In the result, I would:
(a) allow the appeal with costs;
(b) alter the order of the Court a quo to one in favour of the plaintiffs for R1,500 with costs,
including the qualifying expenses of the actuary.
MILNE, A.J.A.: This is an appeal against a judgment of absolution from the instance granted by
VAN HEERDEN, J. The appellant brought an action for damages against the respondent in the
sum of R6,577 arising
1967 (4) SA p452
out of the accidental death by electrocution of his son Noel who was 11 years old at the time.
The appellant, a coloured man who is described in the pleadings as a part-time wood-cutter, 36
years old, sued in his personal capacity and in his capacity as the husband of Rosalind
Anthony, to whom he was married in community of property. Her age was given as 33. Further
reference in this judgment to the appellant will be to the appellant in his personal capacity. The
respondent municipality admitted that in terms of sec. 50 (1) of the Electricity Act, 40 of 1958, it
was liable for any damages sustained by the appellant in consequence of Noel's death, but
denied that the appellant had suffered any damages thereby.
There were only two witnesses for the appellant, viz., Mrs. Rosalind Anthony (his wife), and an
actuary. The appellant himself did not give evidence. Mrs. Anthony's evidence was to the effect
that the appellant in consequence of some growth in his brain, which she said had necessitated
seven operations since 1961, was subject to fits unless he regularly took pills, that he could
never be left on his own, that because of his disability he was unable to work as a wood-cutter
except on two or three days a week and that the wood-cutting could be done by the appellant
only with the assistance of Noel's elder brother, Daniel, who was aged 15 at the time of the trial
in April, 1966. She said that the appellant's activities involved cutting wood in the bush, bringing
it home with a horse and cart, chopping it up at home and selling it on Saturdays. The average
income produced from this was R10 per week. An average of another R10 was earned, she
said, by a fish-hawking business carried on by herself and Noel. According to the appellant's
'The said amount of R10 per week was earned almost exclusively by the said Noel Anthony who did the actual
hawking himself. The presence of the said Rosalind Anthony was required merely because it is not permissible for
a person of the age of Noel Anthony to drive an animal drawn vehicle and to trade as a hawker on his own
In her evidence, however, Mrs. Anthony said that the hawking licence, the horse and cart and
the business of fish-hawking were hers, and that Noel assisted her in that business. Her
evidence was that Noel's services were essential because she was unable to drive the horse or
to blow the fish-hawker's horn. Immediately prior to Noel's unfortunate death, which occurred on
16th May, 1964, there were eight minor children of the appellant and his wife, the eldest being
Daniel, who was followed by Noel who, in turn, was followed by a girl who was a year younger
than he. About a year after Noel's death another baby was born and there were, once more,
eight minor children. The eldest girl was allowed by her parents to remain at school because
she was doing well there and they wished her to become educated. Mrs. Anthony testified that
Daniel, who was illiterate, had to be taken from school at the age of nine to be with and assist
the appellant and that Noel, ever since his father first had a brain growth in 1961, had assisted
her with the fishhawking business. He must have been eight years old in 1961. She said, at one
stage, that Noel, during school terms, would go to school as soon as he had finished with the
fish-hawking on the days that fishhawking was done. Almost immediately after she had said this
she proceeded to insist, more than once, that it was only on Mondays and
1967 (4) SA p453
Thursdays that he so assisted her, that on these two days he was absent from school for the
whole day, and that that was as a result of express permission given personally to her by the
principal of the school. She was quite insistent, too, that it was only on Mondays and Thursdays
that Noel was away from school in connection with the fish-hawking business. The fish-hawking
usually took from 9 a.m. to noon or from 10 a.m. to 1 p.m. on these days, she said. The school
closed at 2.30 p.m. or 3 p.m.
Mrs. Anthony said that after Noel's death she gave up the fish-hawking altogether and, because
of the family's already straitened circumstances thus becoming more difficult, the horse had to
be sold, with the result that the appellant had to borrow the horse of a relation for the purpose of
his wood-cutting operations. The true burden of the appellant's case, as made out by his wife,
was that she gave up the fish-hawking business for no other reason than that Noel's services
were no longer available to her. The appellant claims to be entitled to be compensated for
Noel's death on the basis that Noel had been contributing R10 per week towards the family's
maintenance (i.e., the entire earnings of the fishhawking business), and that he had been doing
so in consequence of a legal obligation to do so, owing to the indigency of his parents. The
actuary's figures were arrived at broadly on the basis that, until he was 17, the contribution
made by Noel, had he lived, would have been at the rate of R10 per week (from which he
suggested R3 per week should be deducted in respect of Noel's own keep whilst living with his
parents) but after that, until he was 25, his contribution could be expected to have been greater
because of a presumed increase, by that time, in his earning capacity, and that at the age of 25,
when he might marry and have children of his own, his contribution could be expected to have
become reduced to R5 per week.
In support of the appeal reliance was placed, inter alia, on Voet, 25.3.8, as applied in Waterson
v Maybery, 1934 T.P.D. 210; Jacobs v Cape Town Municipality, 1935 CPD 474 and Oosthuizen
v Stanley, 1938 A.D. 322. In the latter case, TINDALL, J.A., in giving the judgment of the Court
on an application for leave to appeal in forma pauperis said, at pp. 327, 328:
'The liability of children to support their parents, if these are indigent (inopes), is beyond question; see Voet,
25.3.8; van Leeuwen, Censura Forensis, 1.10.4. The fact that a child is a minor does not absolve him from his
duty, if he is able to provide or contribute to the required support; see In re Knoop, 10. S.C. 198. Support
(alimenta) includes not only food and clothing in accordance with the quality and condition of the persons to be
supported, but also lodging and care in sickness; see Voet, 25.3.4; van Leeuwen, Censura Forensis 1.10.5;
Brunnemann, in Codicem 5.25. Whether a parent is in such a state of comparative indigency or destitution that a
court of law can compel a child to supplement the parent's income is a question of fact depending on the
circumstances of each case.'
On p. 331 the learned Judge is reported as saying:
'The weight of Roman - Dutch authority is in favour of the view that an indigent brother or sister is entitled to claim
support from a brother if the parents are unable to provide it. Voet, 25.3.8; van Leeuwen, Roman - Dutch Law,
1.13.7; Censura Forensis, 1.10.4; Sande, Decis. Fris. 2.8.2. According to Voet the same liability rests on a sister;
see also Kersteman, Aanhangsel, s.v. onderhoud, p. 973. In my judgment the fact that an indigent child might
have a separate claim for support from a brother is not sufficient reason for testing a father's need of support by
the amount that he needs for himself alone. The father has a duty to sustain his wife and children and it would be
wholly artificial to consider the question on the footing that the father is entitled to provide for himself in priority to
his wife and children under his roof.'
1967 (4) SA p454
In that case a father had claimed £360 in respect of the patrimonial loss alleged to have been
suffered by him as a result of the death of a son, aged 21, who had been contributing £10 per
month to the support of the plaintiff and his family, and he claimed £135 in respect of the death
of his daughter, aged 16, who had been contributing £2 5s. per month. In Waterson v Maybery,
supra, the son in respect of whose death damages were claimed had been contributing £5 per
month, out of his earnings, towards the support of his parents and had promised, not only to
maintain the payment during his mother's lifetime, but to increase the payment to £8 per month
after a certain date. In Jacobs' case, supra, the son was 20 years old, had been employed as a
labourer and had, from time to time, made contributions towards the maintenance of his
parents. In the case of In re Knoop, referred to in the passage from the judgment in Oosthuizen
v Stanley which I have quoted, it was held that a lunatic son, aged 47, with means more than
sufficient for his own maintenance, was obliged to assist in the maintenance of his aged father
who was unable to earn a livelihood. The Court proceeded on the footing that a lunatic son, with
means, could be held liable because a minor, with means, could be held liable. In the course of
his judgment DE VILLIERS, C.J., said:
'If a father or mother is in distress and unable to work, his or her children who have the means can be compelled
to contribute towards their parents' support (Voet, 25.3.8). It would make no difference that the children are
minors, for the obligation does not arise out of any implied contract, but out of the sense of dutifulness which
every child is presumed to entertain towards his parents. An instructive case is to be found in the Dutch
Consultations (2.279), where it was laid down that children are not bound to support their parents if the former
have only just sufficient means to support themselves, but that, failing either of these conditions, the tutor of a
minor child is bound to maintain his ward's indigent parents out of the funds belonging to the minor. If this duty
rests upon a minor child it must, in my opinion, be held equally to rest on a child who has been declared to be
insane. In the case before us there exists no doubt whatever that Knoop, junior, has an income considerably in
excess of his requirements, and that his father is reduced to extreme poverty.'
I suggest that the statement by TINDALL, J.A., in Oosthuizen v Stanley, that a minor child is
under a duty to do so 'if he is able' to provide or contribute to his parents' support meant, in the
context, 'if he is able out of his means' so to provide or contribute. I am far from being
persuaded that it was intended in any of the cases to which I have referred to lay down any rule
of law which would make it correct to say that a boy of eleven who had no means of his own,
whether by way of capital or by way of earned or unearned income, is legally liable to contribute
to the maintenance of his indigent parents merely because, by virtue of his services to one or
other or both of them, he is able to help them or one or other or both of them to earn a living.
Nor does my sense of disquiet with respect to this proposition become subdued when I look at
the text of the Digest, 25.3.5, which, it seems, was unconditionally adopted by Voet, upon
whose statement of the Roman - Dutch Law considerable reliance was placed in the cases I
have mentioned. I content myself with quoting paras. 13 and 15 of Digest, 25.3.5. (Scott's
'(13) Where a son has been emancipated before arriving at puberty, he can be compelled to support his father,
if the latter is in poverty; for anyone would say with reason that it is most unjust for a father to remain in
want, while his son was in prosperous circumstances.
1967 (4) SA p455
(15) Filial affection requires that parents should be supported by a son who is in the military service, provided
he has the means to do so.'
These paragraphs appear to contemplate something different in notion from the facts relied
upon in this case. Here, it does seem that what Noel was doing in connection with the
fish-hawking was something which, if he was obliged to do it, he was obliged to do only because
he was required, in the exercise of parental authority, to do it. As I see the matter, he was
merely doing what any small boy would do because he was commanded to do it. When so
required by their parents small boys (or girls) are known to help, from time to time, in their
parents' house or shop or on their parents' farm, for example. When they are ordered by their
parents to perform services, whether or not the parents are indigent, they are, no doubt, obliged
to do what they are told and thus can be said to have a duty to do what they are told. But that
duty, arising, as it does, as a result of parental command, is not, I should be disposed to think, a
legal duty of a kind which can be said to be the subject of compensation merely because, owing
to the death of the child, the services can no longer be commanded. It was not suggested that,
in our law, the mere loss of a son's services, regardless of the financial status of the parents, is
sufficient to give rise to a claim for compensation.
It is, however, unnecessary to express any definite opinion upon the question whether a boy of
eleven, in the situation of Noel, had such a legal obligation to contribute to the support of his
parents, if they were indigent, as would give rise to a claim for damages against someone
responsible for causing his death, because I am persuaded that the appellant failed to establish,
on a balance of probabilities, that he was indigent.
In the course of Mrs. Anthony's evidence she said that on R20 per week the family could,
though with difficulty, make ends meet and I do not think that her evidence was sufficient to
prove that she and the appellant, between them, were unable to provide this amount after
Noel's death. In the first place, her evidence as to her husband's health is not supported by any
other evidence, medical or otherwise. It is true that she says that the appellant cannot speak
normally but she does not say that his speech is not intelligible and there seems to be no
sufficient reason for not calling him as a witness nor for not calling a medical expert to testify
with respect to his healty. I quote the following passages from the record when she was being
cross-examined about her husband's wood-cutting operations:
'En as hy wil kan hy hout elke dag kap? - Hy kan nie.
Waarom nie? - As sy kop hom baie pla kan hy nie gaan werk nie.
Hoeveel dae per week kap hy hout? - Vir die meeste drie dae.
Waarom kan hy net vir drie dae hout kap? - Die ander dae is sy kop nie gesond nie.
Is jou getuienis dat elke week sy kop seer is vir vier dae maar vir drie dae is hy heeltemal gesond. Is dit jou
getuienis? - Ja.
Is dit reg? - Saterdae en Sondae kap hy nie hout nie . . . . . . . .
Werk hy op Maandae? - Maandae werk hy.
En Dinsdae? - Dit is net as hy gesond is. As hy nie gesond is nie dan werk hy nie.
Woensdae? - Hy het nie eintlik sekere dae wat hy werk nie, net as hy gesond is.
Met ander woorde dit is nie dat hy net drie maal per week dan werk nie? -
Deur die Hof: Het dit al gebeur dat hy die heel week werk? - Nog nie. Som weke dan werk hy net twee dae.
1967 (4) SA p456
Het dit al gebeur dat hy meer as drie dae werk? - Nog nie meer as drie dae.
Partykeer net twee? - Net twee.
Deur mnr. Delahunt (verv.): Maar elke Saterdag verkoop hy hout? - Ja.
Het hy nooit versuim om Saterdae hout te verkoop nie? - Som keer is sy kop seer op Saterdae ook dan is die
meisie kinders by die huis om na die kinders te kyk, dan gaan ek om die hout te verkoop . . .
En waar word dit opgesny in stompies? - By die huis.
Wie doen dit by die huis? - My man en my seun.
Wanneer doen hulle dit? - As hulle terugkom van die hout af, dan kom sit hulle dit neer by die huis, dan kap hulle
Op dieselfde dag? - As hy gesond voel dan doen hy dit op dieselfde dag; as hy nie gesond voel nie, dan gaan hy
lê, en dan doen hy dit maar die ander dag . . .
Werk Daniel alleen of werk hy net wanneer jou man werk? - Hy werk nie alleen nie.
Daniel werk net wanneer jou man werk? - Ja.
Is jy seker daarvan? Met ander woorde, Daniel werk net twee of drie dae per weg - reg? - Ja.
Is dit al? - Ja . . .
Dit is net wat ek wil vra. Ek wil net uitvind. Jy het vir Sy Edelagbare vertel dat jou man kan nie meer as drie dae
per week werk nie? - Nee.
Want hy is sieklik? - Ja.
Jy sê elke Saterdag verkoop hulle hout. Wat van die ander dae, van Maandag tot Vrydag? Hoe werk hulle dan? -
Hulle gaan kap die hout in die bos en dan bring hulle dit huis toe.
Dan kap hulle die hout op by die huis? - Ja.
Werk hulle elke dag? - Dit is as hy gesond is. Hy is nie heel week wat hy gesond is wat hy al dag kan werk nie.
Is hy siek elke week? - Hy is elke week - soos hy nou daar gesit het, sê hy sy kop is al weer seer.'
In a case of this kind, where it is conceded to be essential (for success) to establish the
indigence of the parents, and it is established that both are capable of earning money and
continue to be so capable, one must, I think, have better evidence of the appellant's indigence
than what was given here. The actual soreness of or the pain in his head was not something
which Mrs. Anthony could speak about herself, except at second hand: she could validly testify,
of course, that the appellant complained about it. As I have said, the appellant gave no evidence
that he actually did have the pains, and medical evidence might have been able to show that it
was likely that he would have had pains that were not only not continuous but would recur every
so often, and do so every week. In the absence of any medical evidence and of any evidence
from the appellant, I do not think that it can be said that a reasonable court ought to have given
judgment for the appellant, even if Mrs. Anthony could be regarded as telling the truth about the
nature and frequency of the appellant's complaints about the soreness of his head and as to his
not feeling well enough to work. She was, in any event, an unsatisfactory witness. The trial
Court found her to be so 'in certain respects' which, however, were not specified. Her evidence
that she obtained express permission from the principal of the school for Noel to absent himself
on two days per week, was denied by the principal, who impressed the trial Judge. The latter
was also impressed by the teacher, Miss van Neel, whose evidence was very clear that in the
15 months or so preceding Noel's death there was no regular pattern of absences from school
on his part. She produced the school register and testified, inter alia, that during the first school
term of 1964, i.e., from 24th January to 26th March, he was never once absent for the whole
day. The custom was to mark a pupil as being present if he attended school for any part of a
day. Yet Mrs. Anthony, as I have indicated, was insistent that on Mondays and Thursdays Noel
1967 (4) SA p457
absent from school for the whole day. I quote from the relevant portion of her evidence when
'Ek stel dit aan jou dat mnr. van der Merwe nooit so gesê het nie, nooit sy toestemming gegee nie. Wat sê jy
daaromtrent? - Ek het hom persoonlik gaan sien en hy het gesê op Maandae en Donderdae.
Daar is geen fout wat jy daaromtrent maak né? Jy is seker daarvan? - Ja.
En het Noel elke Maandag en elke Donderdag uit die skool uitgebly? - Ja.
Nooit skool toe gegaan nie op 'n Maandag en 'n Donderdag nie? - Nee.
Is jy seker daarvan? - Ja.
Jy moet my mooi verstaan. Is dit reg? - Ja.
Het hy self met jou gegaan elke Maandag en elke Donderdag - vis gesmous? - Ja.
En het dit geduur totdat hy gesterf het? - Ja.
En was hy nooit op skool nie vir enige tyd op 'n Maandag en 'n Donderdag? - Nooit op skool op 'n Maandag en 'n
Die hele tyd van die skool af? - Ja.
Hy was afwesig die hele dag? - Ja.
Op 'n Maandag en Donderdag? - Ja.
Jy is seker daarvan? - Ja.'
It is, I think, clear that she was quite deliberately saying what she did in order to support her
statement that she had obtained specific permission from the principal for Noel to be absent on
Mondays and Thursdays.
I have dealt with the inadequacy of the evidence to establish that the appellant could not have
earned the R20 per week required for the family's necessaries, and there remains only to
consider the effect of the undisputed fact that Mrs. Anthony gave up the fish-hawking business,
though it was bringing in R10 per week, merely because Noel was no longer there to help with
it. It was conceded on behalf of the appellant that a mother, when able to do so, has a duty, in
common with the father, to maintain the family. (See Spiro on Parent and Child, 2nd ed., p. 260,
and the authorities there cited). She said in her evidence in chief that the cost of Noel's
maintenance was R2 to R3 per week. I propose to assume, however, that it would be no more
than R2 per week in view of the fact that R20 per week was sufficient for the maintence of the
whole family. The trial Judge in the course of his judgment said:
'To my mind she should not have had any difficulty in obtaining somebody to help her in this business. Even if she
had to pay him to do so, I cannot foresee that it would have cost her more than it cost her to maintain the
deceased per week. The net income from her business into the family coffers would have been exactly the same.'
The burden of proving patrimonial loss lay, throughout, upon the appellant and that involved his
proving, as I see it (assuming that the appellant himself could earn no more than an average of
R10 per week), that the fish-hawking business could no longer be carried on because Noel's
assistance was not forthcoming. There was no evidence at all that Mrs. Anthony was unable to
find someone else to drive the horse and blow the horn, for only three hours in the morning on
two days per week. She acknowledged that the illiterate Daniel could have done all that Noel
did, had he been available to do so on Monday and Thursday mornings. Even if she had had to
pay to someone outside the family as much as R2 for such services every week, i.e., at the rate
of R1 per three-hour day for two mornings per week, the family coffers would, on the evidence,
have been equal to the task of furnishing what was required for its maintenance, there being no
longer any need to provide for Noel at the time of whose death the new baby, it would appear,
1967 (4) SA p458
not even been conceived. (I might mention, here, that the alleged necessity for the appellant to
have Daniel constantly with him, even when he was at home, depends upon the sole and, as
has been indicated, not very satisfactory evidence of Mrs. Anthony). In the absence of some
evidence to show that the successful fish-hawking business had to be discontinued merely
because of Noel's death I find myself obliged to say that his death was not shown to have been
the cause of the cessation of income from that source. I would add, here, that I think that it will
be clear from what I have said that it was not shown that there was any need to sell the horse.
As regards what has been called in this case 'prospective damages', i.e., those which it is
claimed flow from a presumed ability on Noel's part, had he lived, to earn money on his own
when he had become older, and thus have become able to contribute to the family's
maintenance, as it has not been satisfactorily shown that the appellant and his wife were not
able when Noel died adequately to provide for themselves and their family, there is,
correspondingly, no satisfactory proof that in the relevant and foreseeable future they will not be
able to provide for themselves and their family. I do not think that any adequate basis exists for
saying that the judgment of absolution from the instance was wrong.
In my view, accordingly, the appeal falls to be dismissed with costs.
WILLIAMSON, J.A., and POTGIETER, J.A., concurred in the judgment of VAN BLERK, JA.
Appellant's Attorneys: Manuel Kahn, Gurland & Kaplan, Cape Town; Lovius, Block, Meltz &
Cowan, Bloemfontein. Respondent's Attorneys: Reilly, Reilly & Tucker, Cape Town; Fred S.
Webber & Son, Bloemfontein.