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[2016] ZAGPJHC 349
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Ngubeni v Road Accident Fund (18275/2015) [2016] ZAGPJHC 349 (24 November 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
18275/2015
Reportable: NO
Of interest to other judges: NO
Revised.24/11/2016
In the matter
between:
NGUBENI L obo
S
V
NGUBENI
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
MAHALELO,
AJ
:
[1] On 3 September 2014 at
approximately 07:30 am an accident occurred along Elias Motswaledi
Road and Corner Nxumalo Street, Soweto,
between a motor vehicle
bearing registration letters [...] GP, hereinafter referred to as the
insured motor vehicle and driven
by Mr Raymond More, hereinafter
referred to as the insured driver and the minor child who was 13
years old and riding a bicycle
at that time.
[2] The plaintiff in her
representative capacity as the natural mother and guardian of the
aforesaid minor child instituted action
against the defendant as a
statutory insurer in terms of the
Road Accident Fund Act 56 of 1996
for damages arising from the injuries suffered by the minor as a
result of the accident.
[3] The defendant has conceded
liability for 90% of the plaintiff’s proven damages. The court
was left with the task of
inter alia
, finding whether the
minor child’s scholastic performance pre and post-accident is
the same and whether the injuries sustained
in the accident directly
influenced his intellectual ability to learn. Consequently the
court was required to make a finding
on the minor child’s
future loss of income, general damages and contingencies to be
applied.
COMMON CAUSE FACTORS
[4] It is common cause, or at least
not disputed that:
4.1 The motor vehicle accident
occurred on 3 September 2014.
4.2 The minor sustained the following
injuries in the accident:
4.2.1 A brain injury of a mild degree,
with loss of consciousness of approximately 15 minutes.
4.2.2 Right shoulder/elbow injury.
4.2.3 Right knee/lower leg injury
(proximal tibia fracture).
4.3 The
sequelae
of the
injuries the minor child suffered in the accident has been admitted.
4.4 There is no reported developmental
history or psychiatric condition that would affect neuropsychological
functioning or neurological
insult prior to the accident.
4.5 The minor child did his Grade 1 to
Grade 3 during 2008 to 2010 at Vuvyo Primary School. From 2011 to
2013 he attended Grade
4 to 6 at Makola Primary School. The minor
child passed Grade 1 to 6. As a result of the injuries and the
sequelae
thereof he failed Grade 7 in 2014 and repeated it in
2015 and failed, but was promoted and is currently in Grade 8.
4.6 The school reports of the minor
child were admitted.
THE JOINT MINUTES
[5] In their joint minutes, the
Orthopaedic Surgeons, Professor Scheepers and Dr Dybala are agreed
that the minor sustained a minor
head injury, right shoulder/elbow
injury and right knee/lower leg injury (proximal tibia fracture).
Both doctors are further agreed
that the minor should be treated
conservatively for his aches and pains and attend physiotherapy
sessions. They agree that
the tibia fracture has united.
Professor Scheepers opined that surgery was not indicated for the
patient whereas Dr Dybala’s
view was that due to the rotator
cuff and tendon injury surgery might be necessary. They
deferred to the relevant experts
with regard to the non-orthopaedic
injuries.
[6] With regard to productivity and
working ability Professor Scheepers opined that those have not been
affected by the injuries
the minor child sustained in the accident
whereas Dr Dybala was of the view that they were affected. In this
regard Dr Dybala deferred
to the Educational Psychologist and
Occupational Therapist. Both doctors are agreed that the minor
child did not reach a
Whole Person Impairment of 30% from an
orthopaedic point of view.
[7] According to B Mosadi and J W
Earle, the Neurosurgeons, the minor child had fractured his right
tibia and the right elbow and
the injuries were treated
conservatively by plaster cast and bandaging. As to the effects of
these injuries they deferred to the
Orthopaedic Surgeon. Both
doctors are agreed that although the injury the minor child sustained
on the head is regarded as
a mild brain injury, he has been having
difficulty in school especially with his memory and must accordingly
be assessed by an
educational psychologist.
[8] They further agreed that this
injury is unlikely to lead to post-manic epilepsy but provision
should be made for a slight risk
of it occurring nevertheless.
They expressed the view that the minor child’s funds need to be
protected until
he comes of age.
[9] The Clinical Psychologists, Mr
Sampson and Ms Healy are agreed that pre-accident there was no
reported developmental history
of or psychiatric condition that could
affect neuropsychological functioning or neurological insult as a
result the minor’s
pre-morbid intellectual potential was
estimated to have been in the average range based on his scores on
the language subtests,
which provided an estimate of his pre-morbid
intellectual functioning.
[10] Mr Sampson opined that, based on
the available information which indicated loss of consciousness and a
short period of anterograde
amnesia, the minor child appeared to have
sustained at least a mild traumatic brain injury. Ms Healy
believes that he sustained
a mild to moderate brain injury.
However, deference is given to the Neurosurgeon to confirm the
presence and severity of
the head injury.
[11] According to Mr Sampson, the
minor has mild deficits in attention for complex tasks, unstructured
auditory-verbal information
and poor post-accident adjustment with
significant depressive symptoms. In addition Ms Healy found
psychomotor slowing, difficulties
with visual attention, impaired
verbal reasoning and mild executive dysfunction. Ms Healy was
of the opinion that these results
were subject to the combined impact
of the brain injury, as well as the experience of pain and anxiety on
the day of assessment
which contributed to the minor’s
performance. Ms Healy and Mr Sampson are agreed that in light
of the neuropsychological
findings, the minor’s future
scholastic, psychological and interpersonal functioning have been
negatively impacted.
Both are further agreed that the minor has
suffered a temporary loss of amenities whilst hospitalised and
continues to have a reduced
quality and enjoyment of life. They
deferred to the Industrial Psychologist for further comment on the
impact of the injuries
on the minor’s future workplace
functioning, employability and loss of earnings.
[12] The Occupational Therapists, Ms
Siweya and Ms Molemi are agreed that the minor will benefit from
50-80 hours of occupational
therapy as well as 4 hours of physical
therapy. With regard to other intervention, they recommended
physiotherapy, biokinetics
as well as remedial intervention. They are
further agreed that the minor child demonstrated shortfalls in his
cognitive perceptual
skills and these are expected to have a negative
effect on his academic progression, for this he will benefit from
occupational
therapy intervention. They noted that he is more
likely to continue to fail to meet the demands of the higher grades
as the
complexity and volumes of learning increases. According
to Ms Siweya the minor has poor frustration tolerance, is easily
irritable and withdrawn.
[13] They further agreed that the
minor has remaining neurocognitive impairments which may influence
his future employment prospects
and that he will benefit from
remedial inputs to address his current developmental delays. With
regard to securing gainful employment,
they are agreed that that
would depend on his academic achievement following recommended
intervention. However, they are
agreed that the accident has
curtailed his residual ability with reduction in his scope and choice
of employment as an adult.
[14] The Industrial Psychologists Mrs
Roets and Mrs Du Toit, are in agreement that the minor child started
his Grade 1 in 2008 and
progressed through to higher grades without
any repeats. Mrs Roets was of the view that the fact that the minor
had positive role
models in his family would probably have influenced
him to carve a career for himself in the corporate sector of the
formal labour
market. Both are agreed that the minor was still
young at the time of the accident, making it difficult to postulate a
clear
career path for him, as a result they are agreed that a “
broad
brush
” approach should be utilised in determining his
pre-accident potential. They deferred the minor’s
pre-morbid
scholastic ability to the Educational Psychologists. Based
on the disagreement between the Educational Psychologists, they have
postulated two scenarios: They are agreed that in the first
pre-accident scenario and following the opinion of Ms Sepenyane,
the
minor would have entered the open labour market with a university
degree. This entails that he would have completed matric
and
studied towards a university degree on a full time basis. As a result
he would have entered the open labour market in a position
on B4
Paterson level (Median Annual Guaranteed Package). He may have
progressed to a Paterson D1 level.
[15] In the second pre-accident
scenario, following the opinion of Ms Moller, they are agreed that
the minor would have entered
the open labour market with a Grade 12
qualification only. He would have completed matric with educational
and remedial support.
Further tertiary education would have
been an unrealistic option. He would have entered the labour
market on the Paterson
A3-level (Median Basic Salary) and progressing
to the B3/B4-levels where after the usual inflationary increases
until retirement
would apply. They are agreed that the minor would
probably have been able to work until the retirement age of 65 years.
[16] With regard to the minor child’s
post-accident ability, Mrs Roets and Mrs Du Toit are agreed that two
scenarios can also
be postulated. With the first post-accident
scenario, following the opinions of Ms Sepenyane, Ms Hofmeyr, Dr
Wynand Ndlovu, Mr
Sampson, Ms Healy, Dr Visser, Dr Dybala, Ms Simeya
and Ms Molemi, the minor would probably be able to work in temporary
or contract
positions for a period of two to three years, earning on
Paterson A1- level (lower quartile – Basic Salary).
Thereafter
he will be able to secure permanent employment in the
formal labour market earning within the B3 Paterson level. He
would
be able to progress to the C1/C2 Paterson level by the age 45.
This will represent his career ceiling. From this point onwards he
will earn inflationary increases until retirement.
[17] They are further agreed that,
whilst accepting the opinions of Ms Moller and Dr Earle,
post-accident, the minor will enter
the open labour market with a
Grade 12 qualification only. According to them, in this
scenario the minor child retains his
pre-morbid scholastic potential
and thus will, with support, obtain a Grade 12 qualification.
However, he may be a more vulnerable
and less competitive employee on
the open labour market. His career ceiling may be at a lower level.
He may find himself stagnating
in his career. Both are agreed
that a higher than usual pre- and post-accident contingency deduction
should be applied.
THE PLAINTIFF’S CASE
[18] The defendant admitted the
following unopposed reports of the plaintiff’s experts:
18.1 Dr Visser (Psychiatrist).
18.2 Dr Wynand Ndlovu (Neurologist).
18.3 Dr Koning (Ophthalmologist).
[19] According to Dr Visser’s
report the minor child sustained a mild traumatic brain injury with
concussion and resultant
neurocognitive impairments, post-traumatic
vascular headaches and symptomatic epilepsy. He diagnosed him
to be suffering
from Adjustment Disorder with Emotional, Behavioural
and Intellectual Disturbances, compounded by concussion.
According to
him, the minor child’s future scholastic
performance and employability have been greatly affected by the
injury. Dr
Koning, in his report, stated that the minor
suffered no ophthalmological injury due to the accident.
[20] The plaintiff also led the
evidence of L Ngubeni, the minor child’s mother and of the
following experts: Ms Sepenyane
(Educational Psychologist) and
Dr Visser (Psychiatrist).
[21] L Ngubeni (“
Ms Ngubeni
”)
testified that:
The biological father of her minor
child was a pharmacist. He passed ON in 2001. Her own brother is a
health inspector, he obtained
a degree and an honours. Prior to
the accident the minor child actively participated in school
activities such as chess and
soccer. After the accident the school
which the minor child attended contacted her to inform her that he
could no longer participate
in chess as he was thinking slower and
could no longer play fast. According to her, the minor child could
also no longer participate
in soccer as a result of the pain in his
right knee. She testified further that after the accident, the
minor child became
forgetful, prior to the accident he was talkative,
would play with his siblings and was neat. After the accident he
became withdrawn,
no longer had many friends and was unhappy most of
the time. He played less frequently with his siblings and did so only
when he
wanted to. Ms Ngubeni testified furthermore that ever since
the accident the minor suffered nightmares, daily headaches, frequent
nose bleeding and wetted his bed.
[22] She testified further that from
Grade 4 to mid-Grade 6 the minor child resided with his step-aunt.
He was unhappy as
the children of the step-aunt were not treating him
well, he did not perform well in Grade 6 and as a result he had to
return home
to stay with her again. In term 3 of Grade 6 his
scholastic performance started to improve and he received an award in
mathematics.
In 2014, during term 1 and 2 of Grade 7 there was a
remarkable improvement in his school performance. After the accident
which
occurred on 3 September 2014 he failed Grade 7 and repeated it
in 2015. He was condoned and promoted to Grade 8 in 2016.
[23] Ms Sepenyane testified that the
minor child’s school performance was pre-morbidly above
average. Post-morbid, he tested
at an average level. She acknowledged
a significant difference between his Grade 6 report and the report
for the first and second
terms in Grade 7. According to her the
problems experienced by the minor child in Grade 6 could not have
been cognitive.
She explained that they could have been as a
result of emotional challenges.
[24] Ms Sepenyane testified further
that from the school reports, the minor child’s scholastic
performance drastically declined
after the accident. She attributed
this directly to the accident. She concurred with the findings of the
defendant’s Neuropsychologist
that the minor child’s
tests results revealed mainly moderate to severe neurocognitive
difficulties as set out in paragraph
11.12 on page 39 of Exhibit “B”.
She testified further that but for the accident, the minor child
would have completed
matric and studied towards a University degree.
Her opinion was based on the following: pre-accident the minor child
was of high
average intellect, the minor’s mother obtained a
Grade 12 and further training, his father was a pharmacist, his uncle
has
an honours degree and is a role model.
[25] She furthermore testified that
post-accident, with intensive remedial action the minor child will
only obtain a low level Grade
12. She disagreed with the defendant’s
Educational Psychologist that the minor child had pre-existing
learning difficulties.
According to her any problem which might have
included emotional challenges was overcome as evidenced in the
minor’s school
report of the first and second terms of Grade 7.
She agreed with Ms Moller on the post-morbid scenario in that, the
minor would
have obtained a Grade 12 having regard to the accident.
[26] Dr Visser testified that
according to his assessment, the minor child’s functioning was
impaired to a modern degree affecting
domains of scholastic, social,
interpersonal and leisure functioning. His quality of life has eroded
substantially and that was
accident-related. Dr Visser explained that
where a child enters into puberty at a disadvantage as in the present
case (as a result
of the accident) the child will be more prone to
temper outbursts, irritability, defiance by authority, depression and
deviant
behaviour. The transition through puberty would be more
traumatic than in an ordinary person. According to Dr Visser the most
appropriate time to start remedial treatment is immediately after the
accident. In the present case, if the minor had immediately
received
psychological remedial treatment, given the fact that he has an above
average intellect, he would have negotiated school
and his prognosis
would have been good. However, due to the lapse of time, the
prognosis is not too good, but with very aggressive
and intensive
therapy the minor would be able to obtain a Grade 12 qualification.
[27] Dr Visser testified further that
the minor suffered from anxiety and that resulted in variable erratic
responses. According
to him, the minor was well adapted before the
accident, the accident resulted in significant emotional trauma which
occurred at
a critical phase of his neuro-development and if he could
have been treated immediately, there would have been a more
favourable
outcome. As a result the delay in administering treatment
made the prognosis worse as it resulted in scholastic failure and
made
it more difficult for the minor to catch up. According to Dr
Visser there was no improvement on the minor’s scholastic
performance.
THE DEFENDANT’S CASE
[28] The plaintiff admitted the report
of the defendant’s Neurosurgeon (Dr B Mosadi). According
to the report the minor
developed memory problems after the accident.
His recent memory appears to be impaired.
[29] The defendant called only one
witness to testify.
[30] Ms Erika Alida Moller, the
Educational Psychologist testified that, during the compilation of
her report on 12 April 2016 she
was not in possession of all of the
minor child’s school reports. She only had a Grade 8 report.
She was asked to comment
on the minor’s scholastic performance
from Grade 1 to 3. Her comment was that the minor’s
performance was “
very very average
” and the child
was barely making it. She was of the view that the minor child’s
scholastic performance pre- and post-accident
was the same. She
testified that it was improbable that the minor’s injuries
sustained in the accident would have directly
influenced his
intellectual potential or his ability to learn. She however
conceded that he was now a vulnerable learner
and his post-accident
performance and learning was exaggerated due to the accident.
[31] According to Ms Moller the
minor’s pre-accident scholastic performance was moderate and he
still needed support even
pre-accident to complete matric. She was of
the view that with high demand in university entrance and the
requirement for matric
exemption, the minor child would not have
achieved university entrance. This is so, according to her, when
regard is had to the
fact that the minor child still had unresolved
emotional problems during assessment.
[32] Ms Moller testified further that
the minor still needed remedial therapy to complete matric even
though it was going to be
at late stages. According to her,
with extensive remedial assistance, it was possible to get the minor
to university.
EVALUATION OF THE EVIDENCE
[33] The injuries sustained by the
minor child in the accident are common cause. The physical
injuries have all healed although
it was indicated by the experts
that still complained of pains from some of the injuries he
sustained in the accident .The
sequelae
of his injuries is set
out in the joint minutes of the Industrial Psychologists is that the
minor sustained a traumatic head injury
with resultant neurocognitive
impairment, post-traumatic vascular headaches and symptomatic
epilepsy.
[34] Dr Mosadi and Dr Earle stated in
their joint minute that the
sequelae
of the injuries from a
neuropsychological view was that the minor was having difficulty with
his memory at school post-accident.
According to Dr Mosadi the minor
suffered severe long term mental and behavioural disturbance disorder
as a result of the injuries
he sustained in the accident.
[35] Almost all the experts are agreed
that although the injury on the brain was of a mild degree, the
sequelae
thereof negatively impacted on the minor child’s
scholastic, interpersonal and psychological functioning.
[36] The crucial issue in quantifying
the minor child’s damages for future loss of earnings is to
consider the effects of
his physical as well as psychological
deficits on his scholastic performance and therefore future earning
capacity. His pre and
post scholastic performance has been described
in the joint minute of the Educational Psychologists and their
reports. A
contentious issue arising concerned the fact whether
the minor had pre-existing learning problems and whether the pre and
post
morbid scholastic performance was the same. Ms Sepenyane was of
the view that whatever problems the minor had pre- accident, were
not
cognitive. She opined that the minor’s performance from all his
school reports demonstrated an above average performance.
According
to her the minor would have been able to complete matric and attain a
University Degree.
[37] This brings me to the evidence of
Ms Möller, the Defendant’s Educational Psychologist. She
disagreed with the views
expressed by Ms Sepenyane. She was of the
view that the minor child’s underlying scholastic skills raised
concerns pre-accident
already. According to her, from the reports
made available, the minor already presented with problems in terms of
his progress
prior to the accident and his performance was below
average. She was of the view that he would have been able to complete
grade
12 with educational and remedial support to bridge the gaps in
his learning. According to her, tertiary studies would have
been unrealistic if one considers his below average pre-accident
performance and significant learning problems. Iam inclined
to
accept the evidence of Ms Sepenyane in preference to that of Ms
Moller., as it is in all respects in accordance with the evidence
and
the views expressed by other experts. Ms Moller conceded that at the
time of compiling her report she did not have all the
school reports
of the minor child, she was in possession of his grade 8 report only.
This is so despite the school reports being
furnished to the
defendant long before trial. Furthermore the report of Ms Moller
contained patent errors on scoring and determining
whether the minor
child was average or above average as can be seen from pages 86 to 87
of her report. No less than three patent
errors were pointed to her
during cross examination which errors were conceded. No explanation
was given as to why according to
her those errors would not affect
the net result of the tests.
[38] The defendant admitted the
assumptions used by the plaintiff’s actuary, Munro Forensics in
their report dated 11 August
2016. The defendant further
admitted that the calculations in this report were correct.
[39] Based on the calculations of the
actuary and the previous finding that the minor would have studied
towards a University degree,
regard must be had to the second
scenario referred to in Exhibit “B1”. With respect to the
post-morbid scenario it
seems to be the overall opinion that with
intense remedial action the minor would be able to obtain a Grade
12. I have accepted
these opinions.
[40] On this scenario the minor
child’s future uninjured earnings amounts to R8 478 400,00 and
his injured earnings to R3
626 900,00. This is before any
contingencies are applied.
[41] As far as appropriate contingency
deduction to be applied, I was referred to the following comparable
cases:
41.1
De Jongh v Du Pisane
2004
5 QOD J2-103 (SCA). The plaintiff was 35 years old at the time of
collision. The Supreme Court of Appeal found that contingency
factors
cannot be determined with mathematical precision. The court found
further that contingency deductions are discretionary.
The court
confirmed the 10% contingency deduction applied by the trial court.
41.2
Van der Plaats v South African
Mutual Fire and General Insurance Company Limited
1980 (3) SA 105
(A). The plaintiff was 33 years old at the time of collision.
10% contingency deduction was applied.
41.3
Southern Insurance Association
Limited v Bailey NO
1984 (1) SA 98
(A). The injured person had
been 2 years old at the time of collision. 25% contingency
deduction was applied.
[42] Having regard to these and other
authorities and the fact that the minor child is at present 15 years
old I consider a contingency
deduction of 30% to be appropriate in
respect of the “
But for
” scenario .
[43] Having regard to the accident I
have taken into consideration the following: That it would only
be with intensive therapy
and remedial actions that the minor child
will achieve matric, he will deteriorate in future, he has already
failed Grade 7 twice,
the neurocognitive
sequelae
suffered by
the minor is of a moderate to severe nature and that he is more
likely to continue to fail to meet the demands of higher
grades as
the complexity and volume of learning increases. I am of the view
that 50% contingency deduction should be allowed.
[44] With regard to general damages,
the uncontested evidence is that he suffered a mild to moderate brain
injury and orthopaedic
injuries.
[45] Although described as mild, the
sequelae
of the brain injury is of a moderate to severe
nature. The orthopaedic injuries have resulted in the minor child not
being able
to play soccer or ride his bicycle anymore. The
medico-legal reports and joint minutes clearly spells out the
problems and
difficulties the minor child will experience in future
and what he had been through since the accident. I believe that
an
award of R600 000,00 for general damages will be fair and
reasonable.
[46] In the result I believe that the
plaintiff’s claim for loss of earnings should be computed as
follows:
Future loss
(uninjured)
R8 478 400,00
Less
30%
R2 543 520,00
R5 934 880,00
Future loss
(injured)
R3 626 900,00
Less
50%
R1 813 450,00
Sub-total
R1 813 450,00
Uninjured
earnings
R5 934 880,00
Less injured
earnings
R1 813 450,00
Sub-total
R4 121 430,00
Less
10%
R3 709 287,00
TOTAL
LOSS
R3 709 287,00
ORDER
[47] In the result I make the
following order:
47.1 The defendant shall pay to the
plaintiff the amount of R4 309 287,00 in full and final settlement of
the claim.
47.2 The defendant shall furnish the
plaintiff with an undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund Act, No 56 of 1996
, for 90% of the costs of S
Ngubeni’s (“
the minor
”) future accommodation
in a hospital or nursing home or treatment of or rendering of a
service or supplying of goods to the
minor, arising out of the
injuries sustained by him in the motor vehicle collision, after such
costs have been incurred and upon
proof thereof and as set out in the
Plaintiff’s medico-legal reports. Such undertaking shall
include:
47.2.1 the reasonable costs incurred
in the establishment of a trust as contemplated herein below and the
appointment of trustee(s);
47.2.2 the reasonable costs incurred
in the administration of the award;
47.2.3 the reasonable costs incurred
in providing security to the satisfaction of the Master of the High
Court of South Africa for
the administration of the award and the
annual retention of such security to meet the requirements of the
Master in terms of section
77 of the Administration of Estates Act,
provided that the costs contemplated hereinabove shall be limited to
the costs equivalent
to those incidental to that which could be
claimed by a
curator bonis
.
47.3 The defendant shall make payment
of the Plaintiff’s agreed or taxed High Court costs of the
action to date of this order,
such costs to include the cost of two
counsel and the costs of the reports and the qualifying and
reservation fees, if any, of
the following experts:
47.3.1 Dr Lisa Roets (Industrial
Psychologist);
47.3.2 T A Sepenyane (Educational
Psychologist);
47.3.3 Dr J Earl (Neurosurgeon);
47.3.4 C M Siweya (Occupational Therapist);
47.3.5 Dr Wynand Ndlovu (Neurologist);
47.3.6 Dr H Konig (Ophthalmologist);
47.3.7 Dr C Visser (Psychiatrist);
47.3.8 Dr D E Mashigo (Medical
Practitioner);
47.3.9 Dr A Dybala (Orthopaedic
Surgeon);
47.3.10 C Sampson (Clinical
Psychologist);
47.3.11 A Hofmeyr (Neuropsychologist);
47.3.12 A Munro (Actuary).
47.4 Cost for attending on trial from
12 to 17 August 2016.
47.5 The attorneys for the plaintiff
are ordered to cause a trust (hereinafter referred to as “
the
trust
”) to be established in accordance with the Trust
Property Control Act, 57 of 1988, to pay all monies held in trust by
them
for the benefit of the minor to the trust.
47.6 The trust instrument contemplated
in paragraph 5 above shall make provision for the following:
47.6.1 That Marisca de Beer of Enonix
(Pty) Ltd be appointed as the trustee;
47.6.2 That the minor is to be the
sole beneficiary of the trust;
47.6.3 That the trustee is to provide
security to the satisfaction of the Master;
47.6.4 That the ownership of the trust
property vests in the trustee of the trust in the capacity as
trustee;
47.6.5 Procedures to resolve any
potential disputes, subject to the review of any decision made in
accordance therewith by this
Honourable Court;
47.6.6 That the trustee be authorised
to recover the remuneration of and costs incurred by the trustee in
administering the undertaking
in terms of section 17(4)(a) of Act 56
of 1996 in accordance with the certificate of undertaking to be
provided by the defendant;
47.6.7 The suspension of the minor’s
contingent rights in the event of cession, attachment or insolvency,
prior to the distribution
or payment thereof by the trustee to the
minor;
47.6.8 That the amendment of this
trust instrument be subject to the leave of the above Honourable
Court;
47.6.9 The termination of the trust
upon the death of the minor, in which event the trust assets shall
pass to the assets of the
minor;
47.6.10 That the trust property and
the administration thereof be subject to an annual audit.
47.7 The Plaintiff’s attorneys
shall be entitled to make payment of expenses incurred in respect of
accounts rendered by:
47.7.1 the expert witnesses set out
supra
; and
47.7.2 counsel employed on behalf of
the Plaintiff;
from the aforesaid funds held by them
for the benefit of the patient.
47.8 The Plaintiff’s attorneys
shall be entitled to payment from the aforesaid funds held by them
for the benefit of the minor,
of their fees in accordance with their
fee agreement.
47.9 The trustee will ensure that the
payment in terms of such agreement will be fair and reasonable and
the Master of the High
Court and/or the trustee may insist on the
taxation of an attorney and client bill of costs.
47.10 The order must be served
by the Plaintiff’s attorney on the Master of the High Court
within 30 (thirty) days of
the making hereof.
47.11 The Plaintiff’s
attorney of record shall serve the notice of taxation on the
Defendant’s attorney of record
and allow the Defendant 14
(fourteen) days to make payment of the taxed costs after service of
the taxed bill.
_________________________________________________
M
B MAHALELO
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
APPEARANCES
For Plaintiff :
Adv Combrink
Instructed by: S
Twala Attorneys
For Defendant:
Adv L
Nkosi
Instructed by:
Jassat Dhlamini Inc
Date of Hearing: 19
August 2016