Wrongful Death Claims in South Africa

Losing a loved one is always hard. When the death is caused by someone else’s negligence or wrongdoing, the pain is even greater.

A wrongful death claim can be made when a person dies as a result of someone else’s negligence or wrongdoing. The death could have been prevented if the person or parties responsible had taken reasonable care and attention.

Wrongful death claims are civil cases, not criminal prosecutions. The defendant is not held criminally liable.

Types of wrongful death claims

There are numerous circumstances that can lead to wrongful death claims. The following list covers the most common types.

Road Accident Fund claims

A claim can be made against the Road Accident Fund (RAF) when someone dies as a result of an accident on a South African road that wasn’t wholly their fault. This includes drivers, passengers, cyclists and pedestrians.

A claim against the RAF must be lodged within three years of the accident – or within two if the identity of the driver or owner of the vehicle who caused the accident is unknown.

Medical malpractice claims

A wrongful death claim can be made when a negligent act or omission by a medical professional causes a patient’s death. The action must have failed to meet the accepted professional standards of care.

Negligence by all medical professionals, from doctors and nurses, to dentists, osteopaths and those responsible for conditions in healthcare facilities like nursing homes and hospitals, can result in wrongful death claims.

The claimant’s legal team must prove that medical malpractice occurred and it caused the wrongful death.

Product liability claims

In South Africa, product liability claims are governed by the Consumer Protection Act. A wrongful death claim can be made if someone dies as a result of a defective or hazardous product. A claim can be made against a product’s designer, manufacturer, importer, distributor or retailer.

The claimant doesn’t have to prove that the defendant was negligent. To establish liability, the claimant’s legal team has to prove that the death was caused, wholly or partly, as a consequence of:

• the supply of an unsafe product
• a product failure, defect or hazard in the product
• inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from, or associated with, the use of the product.

Compensation for wrongful death: what can you claim?

The type of case and the facts of each case determine what compensation can be claimed. The two main types of damages are loss of support and funeral costs.

Family members who are financially dependent on the deceased can make a claim for compensation to the value of what they would ordinarily have received from the deceased.

Some funeral costs can be claimed, including transportation of the body, the coffin or burial shroud, storage and preparation of the body (including embalming), burial or cremation, hiring of equipment to lower the coffin into the grave and grave fees.

Expenses such as catering, flowers, transport for attendees, programmes or tombstones are not covered.

In some cases, compensation may be awarded for mental and emotional suffering. However, normal grief is not included in this category.

In cases of psychiatric injury, compensation may also be awarded for loss of earnings or reduced earning capacity.

Who can sue for wrongful death?

A wrongful death claim can be made by close relatives who were financially dependent on the deceased. A spouse and children, sometimes siblings and parents, can claim compensation. Children can claim up until they’re self-supporting or have finished education.

South African cases have established the right of common-law partners to compensation for loss of support. Fiancés and unmarried life partners are eligible to claim if they can show they lived like a married couple or were leading up to marriage.

How is the compensation amount determined?

In the event of a successful outcome to your wrongful death claim, the amount awarded is determined based on various factors.

These include the financial losses incurred, the age and earning capacity of the deceased, and the degree of negligence or misconduct of the defendant.

There is a limit to the annual loss of support in a RAF wrongful death claim in South Africa. The annual limit currently stands at R365,814 (July 2024) and is subject to quarterly inflation adjustments.

The total loss of support is limited to the annual cap. Each dependant’s claim is allocated proportionally to bring the total within the limit.

How long do you have to file a wrongful death claim?

Typically, a wrongful death claim must be made within three years of the date of the person’s death.

However, there are exceptions. It’s best to consult an attorney to verify the time period in which a claim has to be made.