Developing the law in relation to the transferability of general damages to a deceased estate

  • Legal Development 08 June 2022 08 June 2022
  • Africa

  • Healthcare

In the matter of Simphiwe Bongayiphi Ngubane v Road Accident Fund (Ngubane v Road Accident Fund), the Gauteng Division of the High Court, Johannesburg, recently dismissed a claim for general damages arising from motor vehicle collision, in accordance with the common law principle that a general damages claim is not transmitted to a deceased estate if the deceased passes away before litis contestatio is reached.

In doing so, the court distinguished its approach from that adopted by the majority ruling in the well-known case of Nkala and Others v Harmony Gold Mining Company Limited and Others (in which it was ruled that general damages can transfer into a deceased estate where a claimant has demised at the same procedural stage of litigation).

Background of the Ngubane v Road Accident Fund case

On 27 February 2019 a pedestrian, Mr Simphiwe Ngubane, was crossing the intersection of Koma Road and Masingafi Street, Soweto. After observing his surroundings and potential oncoming traffic, he proceeded to cross the road. While crossing, a silver VW Polo travelling at a high speed collided with the Mr Ngubane, despite his attempt to run out of the approaching vehicle’s path. As a result, he suffered injuries which, according to expert reports, included memory loss, amongst others.

Action was instituted against the Road Accident Fund (RAF) on 11 August 2020, and on 14 August 2020, summons was served. The Mr Ngubane passed away on 25 February 2021 and was lawfully substituted as plaintiff in the action by the executor of his estate. Throughout the process, the RAF failed to enter an appearance to defend, and resultantly litis contestatio was never reached. An application for default judgment against the RAF was launched on 26 July 2021, and later set down.

Finding on liability

The court highlighted that there appeared to be incompetencies in the plaintiff’s evidence, but since this remained uncontradicted, the court was given no reason not to accept the plaintiff’s version of events which set out a prima facie case against the RAF. Based on this, the RAF was found to be liable for the damages that may be proved by the plaintiff.

Transferability of a claim for general damages to the plaintiff’s deceased estate

The court queried whether the plaintiff’s claim for general damages had been transferred to his deceased estate. It should be noted that the plaintiff did not make submissions on this point.

As a point of departure, the court reiterated the common law rule that prevents a claim for general damages being transferred to a deceased estate where litis contestatio is reached after the plaintiff passes away. Typically, litis contestatio is represented by the close of pleadings when all issues between the parties have been joined. The common law, however, synonymises litis contestatio with a joinder of issue, and in the case where a party forgoes his right to ‘join’ legal proceedings, a ‘fictitious’ joinder of issue becomes relevant. Since this fictitious joinder takes the form of an application for default judgment, it may well be a notable tool for a tenacious Counsel with a will to change the court’s perspective. In this case though, it wasn’t so.

While judgments like that of Mahlangu N.O. obo Mahlangu v RAF (67880/14) [2020] ZAGPPHC 7 provide precedence for the enforcement of the common law principle concerning transferability of a general damages claim, it has not gone unchallenged. Here, the case of Nkala (which related to a class action) becomes relevant.

Court’s dissent from points raised in Nkala

The majority and minority judgments in Nkala agreed that the common law should be developed to allow for the transfer of general damages after litis contestatio. The difference between the two judgments, was that the majority felt that the common law ought to be developed across the spectrum of competent claims for general damages regardless of the cause of action, whilst the minority took the stance that the development should be incremental and limited to the class action before it.

There is no denying that the Constitution encourages development of the common law in places where it may not align with the Bill of Rights. The court in Ngubane pointed out, however, that this development is restricted to rectification of direct infringements of provisions in the Bill of Rights. Ultimately, unbridled development thereof poses a threat to the ‘fine web’ that is the common law, and for which consequences could be widespread and unforeseen. The court thus felt that the conservative approach of the minority in Nkala ought to be preferred in the circumstances.

The court also noted that a claim for general damages is a claim in personam and affects a specific person alone. Accordingly, it should be the specific person who suffered the harm that benefits from the claim, and no one else. In this case it was the executor of the deceased estate who pursued the claim for the advantage of potential heirs who hold merely a hope of inheriting. On this basis, the court found it difficult to identify any violation of the right to freedom of security or bodily integrity that the parties argued existed in Nkala. Further to this, the court reasoned that the right of a person (who can claim general damages) to ensure that their beneficiaries receive the compensation that the injured party is entitled to is not a given right.

Finally, the argument of inequality raised in Nkala on the basis that the common law principle resulted in the arbitrary differentiation between survivors pre- and post-litis contestatio, was considered by the court. In short, the court discounted the argument on the grounds that it should be the person who suffered the damages, and himself alone, that should reap the benefits of the claim. Should it be that a deceased passes after litis contestatio, then it is because of the deceased’s timeous diligence that such claim was instituted, and resultantly, his estate should benefit. Without limiting this transferability right, the spectrum surrounding those who qualify to institute claims of general damages in respect of the deceased is endless and will stretch beyond the means of a judiciary to regulate.

The court opposed the notion that the common law requires development in general terms to allow for the transmission of claims for general damages into a deceased estate where a claimant dies before litis contestatio. The executor’s claim for general damages was therefore dismissed, in spite of the court having ruled in his favour on the issue of liability.


It ought to be noted that, despite its deviation from the reasoning of the majority in Nkala, the court in Ngubane has merely suggested a contextual, case-by-case analysis of the circumstances presented when a deceased dies after litis contestatio.

Clients are advised to adopt a cautious approach when estimating the value of personal injury claims including general damages, particularly in class action litigation.

If you require advice on the assessment of liability and quantum for personal injury claims in South Africa, please reach out to Athol Gordon and Hickley Hamman.

View a copy of the judgement


Additional authors:

Rebecca Fernandes, Candidate Attornrey

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