The children’s father died in August 2000. In June 2002, their mother, the deceased, was killed on the road when, as a pedestrian, she was hit by a driver whom the RAF admitted was 100 per cent to blame for the collision such that it was liable for damages suffered by the children for loss of support.

The children had lived with their grandparents prior to their mother’s death for a period. The mother had been in prison for a period, and after the left prison she had obtained some work and contributed to the support of the children. After the death of her daughter the children’s grandmother applied to the Children’s Court to be appointed as a foster parent to her grandchildren and was so appointed in August 2002 in terms of the Child Care Act 74 of 1983. As a result she was entitled to receive foster child grants in terms of the Social Assistance Act 59 of 1992, replaced by the Social Assistance Act 13 of 2004.

The RAF contended that the children were not entitled to compensation for loss of support as the foster child grants had been paid as a result of the death of their mother and that they had therefore already been compensated for loss of support. But for the collision and her ensuing death, for which the RAF admitted liability for damages, the grandmother would not have received grants for the children. It argued that payments of foster child grants and of damages for loss of support amounted to double compensation for the death of the mother.

The applicant contended, on the other hand, that the payments of the grants were acts of gratuity by the State: they were paid to people who elected to become foster parents, and were not compensation for losses sustained by accident victims.

The High Court held that the grants should not be deducted from the damages for loss of support as they served a different purpose and were unrelated to the lost support.

The Supreme Court of Appeal, however, agreed with the arguments put by the RAF. In essence finding that, on the facts of this case, the foster child grants served the same purpose as compensation for loss of support and therefore would amount to double compensation if not taken into account in determining the amount to paid for loss of support. The SCA did say that there could be instances when the foster child grants would not amount to double compensation and could be awarded, but that this was not such a case.

The Supreme Court’s decision is now before the Constitutional Court on appeal.