Tuesday 19 February 2019
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iol - 8 days ago

Widow wins appeal against RAF in Western Cape High Court ruling

Cape Town - A widow has won her appeal against the Road Accident Fund (RAF) for compensation in the Western Cape High Court after her common law husband was fatally injured after being knocked over by a container being conveyed by a so-called “reach stacker” at the Multipurpose Terminal at Cape Town Harbour nearly nine years ago. This is according to the widow’s lawyer Chris Smit from DSC Attorneys, who says that the judgment will bring the widow and her children much needed compensation for the death of her husband. On 20 February 2010, the late Simpiwe Robert Makutoana, Thandiswa Linah Mbele’s common law husband, was fatally injured leaving Thandiswa, then 35-years-old, alone to raise their 4 children, ranging in age from just 5 months to 9 years. Despite submitting Mbele’s claim for her lost financial support suffered as a consequence of Mr Makutoana’s tragic passing that same year, Smit says that the RAF has resisted her claim to date on a technical point, namely that the “reach stacker” was not a motor vehicle as contemplated in the Road Accident Fund Act. “Ms Mbele had to go to court to challenge the RAF’s rejection of the claim on this basis, with the initial trial having started as long ago as June 2016,” he explains. “In November 2017 judgment was given in the RAF’S favour, which was a huge blow to Ms Mbele and could have nullified any chances she had at receiving compensation for herself and her children.” However, now that the Full Bench of the Western Cape High Court has overturned that earlier decision – finding that the vehicle was indeed a “motor vehicle” as contemplated in the Act - Smit says that Ms Mbele is a massive step closer to achieving that end. “The children are at this stage aged between 9 and 18 years old and have had to survive without their father for 9 long years,” he says. “It is to be hoped that having overcome this technical hurdle, they can receive what is due to them without further delay.” However, Smit says that the RAF, which fought the claim on this technicality has not yet relented even following this clear and unequivocal judgment, and are currently threatening to approach the Supreme Court of Appeal for leave to appeal to the SCA, something which would inevitably take some time – and money - and which would further delay Ms Mbele and her children’s access to much-needed compensation. Smit adds that the judgment stresses that each case of this nature has to be determined on its’ own merit, although it is now clear that in these particular circumstances the vehicle in question is indeed one which is “covered” as it were, for purposes of access to compensation from the RAF. With regard to the compensation will they receive, Smit says that the late Mr Makutoana was employed as a stevedore at the time of his passing, earning a very modest salary, meaning that the financial losses suffered by Ms Mbele and her children are limited. “It’s frustrating to consider that the legal expenses incurred by the RAF to date in contesting this modest claim, in all probability exceeds the compensation which is recoverable,” Smit concludes. SUPPLIED CONTENT Cape Argus

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