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Article by listed attorney: Fawzia Khan

In June 2002 a woman was killed on the road when a driver of a motor vehicle knocked her down. At the time of her death, the woman’s children lived with their maternal grandparents but the woman contributed towards the financial needs of the children. The children were orphaned when their mother died, as their father had already passed away. The grandparents then applied to the State to become the children’s foster parents. Coughlan, on behalf of the woman’s minor children, lodged a claim for loss of support against the Road Accident Fund (“RAF”). The RAF admitted it was 100 per cent to blame for the collision and agreed on the amount of R 112 942,00 being the damages due to the minor children, for loss of support.

However the RAF refused to pay out the claim to the children saying that since the children were the beneficiaries of the child foster grants, they were not entitled to receive any loss of support claim, saying that this would amount to double compensation. The RAF’s view was that the State had already paid out the sum of R146 790 in foster grants to the grandparents and this amount was in excess of the loss of support claim. Consequently they refused to pay any compensation. The children’s representative took the RAF to court arguing that the child foster grants were gratuitous payments, made by the State to the foster parents, and not to the children themselves. Their position was that these grants could not be considered to be compensation for the loss of support claim. The High Court agreed that the foster child grants paid to the grandparents did not qualify as double compensation and ordered the RAF to pay the children their loss of support agreed claim. The RAF then took the matter to the Supreme Court of Appeal who overturned the High Court’s decision. Undeterred the applicant then approached the Constitutional Court for relief on the basis that it was unconstitutional to refuse the children their loss of support claim. The arguments raised by the applicant was that foster-child grants were used “to encourage and facilitate caring for children who are in need, by people who are willing to take on the responsibility of caring for a child in the context of their family”. In these instances the child had no claim to the money. On 20 April 2015, the Constitutional Court delivered its judgment on the matter.  The Constitutional Court found that Section 27 and 28 of our constitution actually created an obligation on the State for children in need of care. The Constitutional Court found that our constitution compels the State to “take reasonable legislative measures, within its available resources, to provide everyone with access to social security, including, if they are unable to support themselves and their dependents, appropriate social assistance.

The Court also held that foster care was unrelated to the damages for loss of support. Using the Children’s Act as a reference, it held that the purpose of foster care was to “protect and nurture children by providing a safe, healthy environment with positive support”. The Constitutional Court also found that that the foster child grant was a payment made to the foster parent and not to the child. Regarding the loss of support claim, the Constitutional Court found that this was a separate claim which was payable to the child “to compensate the child for the patrimonial loss suffered by the loss of the monetary contribution that the deceased parent would have made towards the support of the child.  It forms part of the patrimony of the child.”  The Court’s view was that “ a child may have a living parent, but nevertheless be in need of care even if the parent has not died” and said that to suggest that the payments made by foster grants would amount to double compensation would lead to “intolerable anomalies” and to results that “are illogical, unjustifiable and inconsistent with the Constitution”. Consequently the Constitutional Court set aside the decision of the Supreme Court of Appeal.

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