Should the Motor Vehicle Accident Fund be liable to compensate dependants who suffer loss where the deceased breadwinner was the sole cause of the accident

Abstract

Abstract provided author

The Motor Vehicle Accident Fund is a statutory body established in terms of the Motor Accident Fund Act, 4 of 2001. The MVA Fund in terms of section 10 of the Act is obliged to compensate motor vehicle victims for bodily injuries arising out of the negligent driving of a motor vehicle and/or any unlawful act on the part of the driver or owner of the motor vehicle that caused the damage or loss

Over a period of two years the MVA Fund has compensated dependants of deceased breadwinners who were the drivers and sole cause of the accident. Hon Chris Greenland who was the MVA Fund's Technical advisor at the time took full responsibility for the settlement of such claims as he changed the operational mode of the MVA Fund at the time in search for a legal basis for this public institution to compensate "innocent and mostly disadvantaged of societal motor vehicle accident victims" as he termed them

In search for the legal position regarding this issue, the MVA Fund approached Senior Counsel AP de Bourbon in Cape Town, South Africa and Senior Counsel Dave Smuts at the Law Society in Namibia. Both Counsels submitted their legal opinion after perusing the conflicting position of Hon. Greenland who approached the issue from a constitutional point and concluded that dependants of guilty drivers must be compensated by the MVA Fund. Both Senior Counsels on the other hand went the route of the common law principle that the dependants of guilty driver do not have a claim against the MVA Fund as they cannot benefit from their father/mother's wrong doing

The legal question this research sets to answer is whether dependants who suffered a loss on the account of the death of a breadwinner in a motor vehicle accident where the breadwinner was the sole cause of the accident would have a claim against the MVA Fund?

Due to the fact that there is no judicial pronouncement and academic comment in neither the Namibian nor South African jurisprudence on this matter; great reference will be made to the opinions of the counsels mentioned above and the constitution of Namibia.