Case Note: Coughlan NO v Road Accident Fund 2015 (4) SA 1 (CC)

/ / 2016, Estates and Trusts, Family Law


Three minor children lived with their maternal grandparents, while their mother lived separately but supported them financially. The children’s father had died and the mother was the sole breadwinner of the family. The mother was killed as a result of a motor vehicle collision and the children’s grandparents applied to the Children’s Court to be appointed as their foster parents and in turn, receive foster child grants (“the grants”) in terms of the Social Assistance Act.

The children’s curator ad litem instituted a claim against the Road Accident Fund (“the Fund”) on behalf of the children for damages arising from the death of the mother, more specifically for the loss of support. The Fund conceded liability to compensate the children for 100% of the proven damages arising from the death of the mother.

The Western Cape Division of the High Court, Cape Town was required to determine whether the foster child grants paid to the grandparents fell to be deducted from the agreed amount for the loss of support, or whether those payments were to be considered res inter alios acta, and therefore undeductible.

The High Court concurred with the decision of the Gauteng Local Division of the High Court, Johannesburg in Makhuvela on behalf of H v the Road Accident Fund 2010 (1) SA 29 (GSJ) which held that the primary purpose of foster child grants is the realisation of the constitutional rights of the child through the intervention of the foster parent. And that the grant is not payable to the child but to the foster parent who may spend the whole or part of it on the foster child.

The High Court held that the death of the mother did not cause the grandparents to take care of the children, but that the need for the children to be cared for was there even before the mother’s death”. The High Court went on further to say that “the later formalisation and appointment of the grandparents as foster parents and the subsequent grants were to enable them [the grandparents] to comply with the obligations they already had prior to their mother’s death. It was on this basis that the High Court concluded that the grants were not deductible.

The Supreme Court of Appeal, however, overturned the decision of the court a quo and preferred the opinion that foster child grants were deductible from the damages. The Supreme Court of Appeal concluded that as the grandparents were appointed as foster parents after the death of their daughter, but for the death, the foster parents would not have claimed the foster grants.

The Constitutional Court was petitioned by the Plaintiff on the basis that the question of whether foster child grants are deductible from compensation for loss of support payable to foster children concerns the support of vulnerable children, whose rights are enshrined in the Constitution, including in terms of sections 27 and 28.


The Constitutional Court held that the grants did not need to be deducted from the damages.

In this regard, it was held that:

1. The grants were materially different in nature to the damages for loss of support, such that the grants did not in fact constitute compensation (and their award would not constitute double compensation);

2. The grants were the property of the grandparents as foster parents, and the damages were the patrimony of the children – as such there was no basis on which to deduct the grandparents’ grant from the children’s damages;

3. The deduction of the grants from the damages would lead to unjustifiable consequences, such as the inequality that would exist when comparing a child whose parents died as a result a motor vehicle accident and one whose parents had died as a result of any other delict; and

4. The materially similar child support grants should also not be deducted from damages for loss of support.


This case has brought clarity on the question of whether foster child grants and similar grants, such as child support grants, can be deducted from the computation of damages that can be claimed from the Road Accident Fund.

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