Loss of someone who assists you financially is one of the most difficult things a family can experience. In South Africa, the law offers a safety net to individuals in this case. This is known as a Loss of Maintenance claim. It is meant to ensure that children, spouses and at times even parents are not left out of poverty as long as the provider is unable to support them any more.
The legal system of South Africa is complicated, so such claims demand a Medico-Legal approach. This involves an integration between medical facts and legal rules. This is an in-depth guide that will cover all you need to know with regards to loss of maintenance, including what the Road Accident Fund (RAF) does to who calculates your future and how an Industrial Psychologist does it.
What Exactly is “Maintenance” in South Africa?
Simply put, maintenance is the capital needed to sustain one in the basic aspects. The South African law, namely, the Maintenance Act 99 of 1998, establishes a duty of support on the part of some people towards others.
Maintenance covers more than just bread and milk. It includes:
- Housing: Rent or bond payments, electricity, and water.
- Education: School fees, uniforms, books, and university costs.
- Healthcare: Medical aid, doctor visits, and medicine.
- Clothing: Essential clothes for all seasons.
- General Living: Transport, food, and basic household items.
A Loss of Maintenance claim will occur when an individual who has been supplying these things is no longer able to do so due to an injury or death resulting to them by another.
When Can You Claim for Loss of Maintenance?
There are several scenarios in South Africa where this claim becomes very important:
The Road Accident Fund (RAF)
This is the most prevalent kind of claim. In the case of a breadwinner being killed or crippled in a car accident the dependents (wife, husband, or children) may sue the RAF. The aim is to recover the amount of money that they would have gotten had the accident not occurred.
Medical Malpractice
In some cases, a doctor or a hospital commits an error that will cause an individual to be disabled or even die. In case the individual was the primary earner in the family, then the family is eligible to claim the loss of income.
Injuries on Duty (COID)
When one is injured in the workplace and is no longer able to work to earn a living to support his or her family, then the Compensation for Occupational Injuries and Diseases Act (COIDA) comes in. Although this is not like a typical court case, it also concerns the loss of earning capacity.
Public Liability
Suppose a father goes to the ground in an unmarked hole on a sidewalk and is paralyzed. Since the municipality was careless, the father (and his family) can assert the loss of his capacity to sustain his family.
The Crucial Role of the Industrial Psychologist (IOP)
It is here that the Medico-Legal aspect comes in very handy. Neither a lawyer nor a judge is a career expert. They do not know the amount that a plumber or a bank manager will earn in the year 2040. It is due to this that they employ an Industrial Psychologist.
What does an IOP do?
The Industrial Psychologist acts as a “career detective.” They examine the man or woman who has been injured or killed and say to him: What was his profession?
To answer this, they look at:
- Education: Did the person have a Grade 12? Did they have a degree?
- Work History: How much were they earning? Were they a hard worker?
- Potential: Could they have been promoted to a manager one day?
- The Economy: Are there jobs available in that sector in South Africa?
Why is this report vital?
The claim is a mere speculation without an IOP report. The IOP gives scientific evidence. They take South African labor market information to demonstrate that Person A would have been most likely to retire at the age of 65 as a Senior Clerk. This information is then computed to get the precise Rand value of loss.
How the Money is Calculated (The Math Part)
Loss of maintenance is a calculation similar to looking into a crystal ball, except that it involves math rather than magic.
Past Loss
This is the amount of money that the family has lost since the accident on the day of the accident till the day that the case will be in court. This is normally more straightforward to compute since we possess the old payslips.
Future Loss
This is the difficult part. We will have to compute the lost money up to the date the individual would have retired. This may be after 20 or 30 years.
The “Two-Portion” Rule
We frequently have a formula of families in the South African law. Typically, it is assumed that the breadwinner spends:
- Two parts of the income on themselves.
- Two parts on the spouse.
- One part on each child.
Therefore, in case a breadwinner passes away, the court does not award the family 100 percent of the salary. They deduce the two portions that the breadwinner would otherwise have used in buying their own food and clothing.
Contingencies
The court always applies “contingencies.” It is a percentage (such as 10% or 15%), which is deducted on the total amount. Why? Things happen in the real world, so why not in the simulation? Either the individual may have lost his/her employment or he/she may have fallen ill. The payout is modified by the court to explain these unexpected risks.
The Legal Process in South Africa
If you are a family member looking to claim, here is the journey you will take:
Finding a Medico-Legal Attorney
You need a lawyer who specializes in personal injury or RAF claims. They usually work on a “no win, no fee” basis (Contingency Fee).
Gathering the Proof
You will need birth certificates, marriage certificates, death certificates (if applicable), and every payslip or bank statement you can find.
Expert Assessments
Your lawyer will send you to experts. You will see an Industrial Psychologist at The IOP to talk about work. You might also see an Actuary, who is a master of math, to turn the psychologist’s report into a final number.
The Summons
Your lawyer sends a legal document to the person or organization that caused the harm (like the RAF or a hospital).
Settlement or Trial
Most cases in South Africa are settled outside of court. This means the two sides agree on a number. If they can’t agree, a Judge in the High Court will listen to the experts and make a final decision.
Challenges in South African Claims
Claiming for loss of maintenance in SA is not always easy. There are several challenges:
- RAF Backlogs: The Road Accident Fund often takes a long time to pay out.
- Informal Sector Work: Many South Africans work as street vendors or gardeners without payslips. It is much harder for an Industrial Psychologist to prove their income, but it is not impossible. We use “collateral information” (talking to neighbors or bosses) to build a case.
- Inflation: Because the cost of living in SA goes up so fast, the math must be very careful to ensure the money lasts for many years.
Why Choose The IOP for These Claims?
We have a history of more than 40 years at The IOP. We know better than anyone the job market in South Africa. We are aware that a miner claim in Rustenburg is not the same as a claim of a software developer in Sandton.
We provide:
- Thorough Assessments: We don’t just look at papers; we look at the human being.
- Expert Testimony: We are ready to stand in the High Court and defend our findings.
- Fast Turnaround: We know that families are waiting for this money to survive, so we work quickly.
Frequently Asked Questions (FAQs)
What is a loss of maintenance claim?
It is a legal demand for money to replace financial support lost when a breadwinner dies or gets injured.
Who can claim for loss of maintenance?
Spouses, children, and any legal dependent who relied on the person for survival can claim.
How long do I have to start a claim?
Usually, you have 3 years from the date of the accident, but for RAF claims against unknown drivers, it is only 2 years.
Do I need an Industrial Psychologist for my case?
Yes, because only an Industrial Psychologist can legally prove how much the person would have earned in the future.
Will the money be paid in one big sum?
In South Africa, most loss of maintenance claims are paid as a “lump sum,” which is one large payment.
Summary for Dependents
If you have lost your provider, remember:
- The law is on your side.
- You are entitled to the same standard of living you had before.
- Professional reports from Industrial Psychologists are the key to a successful claim.