About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2023
>>
[2023] ZAGPJHC 665
|

|

Burger N.O (as curator ad litem obo N.L) v Road Accident Fund (1678/19) [2023] ZAGPJHC 665 (8 June 2023)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number: 1678/19
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
DATE:
8 JUNE 2023
SIGNATURE:
In
the matter between:
ADV
W BURGER N.O
Plaintiff
(As
curator
ad litem
Obo
N[...]: L[...])
and
ROAD
ACCIDENT
FUND
Defendant
Neutral
Citation:
Adv W Burger N.O (As curator ad litem obo N[...]:
L[...]) v Road Accident Fund
(Case No: 1678/19) [2023] ZAGPJHC
665 (8 June 2023)
Summary:
Default trial against the Road Accident Fund. The determination
of an appropriate award of loss of earnings in circumstances where

actuarial report rejected on account of cognitive fallout not being
established.
JUDGMENT
AYAYEE AJ:
[1]
On 9 March 2018 at about 15h30 the plaintiff, then a
10-year-old boy
and a pedestrian, was a victim of a motor vehicle accident.  So
effective has the regime introduced by the
Road Accident Fund Act No.
56 of 1996 (“
the Act”
) become in compensating
victims who suffer such needless injury that at no point was the
negligent insured driver so much as identified
during the Court
proceedings.
[2]
On 20 April 2023 the plaintiff assisted by a curator,
approached this
Court flagged by various experts, as has become the norm, to advance
a claim for compensation for:
(i)
General damages;
(ii)
Past hospital, medical and related expenses;
(iii)
Future hospital and medical expenses; and
(iv)
Future loss of income.
Postponement
Application
[3]
At the
commencement of the proceedings, the Court was advised of the
presence of a legal representative acting on the instructions
of the
Road Accident Fund (“
the
Fund”
)
a Mr Daniel Coetzee from the State Attorney, Johannesburg, who
advised that the he held concrete instructions to seek a postponement

of the plaintiff’s claim for past hospital, medical and related
expenses.
[4]
It must be
observed that this action proceeded by default, the Court having
struck out the Fund’s defence on 24 February 2022.
On 8
June 2022 a notice of set down for default judgment was served upon
the Fund.  In those circumstances it would in this
Court’s
view be inimical to the interests of justice for a Court to entertain
an informal postponement application brought
at the dearth.  As
held by the Constitutional Court in the matter of
Shilubana
and Others v Nwamitwa (National Movement of Rural Women and
Commission for Gender Equality as amici curiae)
[1]
there are a non-exhaustive list of considerations which must
influence a Court in determining whether or not a postponement should

be granted.  Paraphrasing aspects of the judgment, these factors
are
inter
alia
:
4.1
Keeping in mind the significance of
the underlying issues and
context;
4.2
Bearing in mind that a postponement
cannot be claimed as of right and
in determining if good cause has been shown for granting that
indulgence, the Court may have
regard to whether:
4.2.1
the application was timeously made;
4.2.2
the explanation given by the applicant is full
and satisfactory;
4.2.3
the prejudice to the other parties;
4.2.4
whether
the application is opposed.
[2]
[5]
In
eThekwini
Municipality v Ingonyama Trust
[3]
t
he
Constitutional Court also stated:
“
The conduct of
litigants in failing to observe the Rules of this Court is
unfortunate and must be brought to a halt. … It
is
unacceptable that this is the position in spite of the warnings
issued by this Court in the past. …”
[4]
[6]
The judgment goes on to record:
“
The Court
cannot continue issuing warnings that are disregarded by litigants.
It must find a way of bringing this unacceptable behaviour
to a stop.
One way that readily presents itself is for the Court to require
proper compliance with the Rules and refuse condonation
where these
requirements are not met. Compliance must be demanded even in
relation to Rules regulating applications for condonation.
…”
[5]
[7]
This Court sees no reason why the plaintiff as a victim
of a road
accident must be made to suffer further inconvenience and prejudice
as a result of the Fund’s administrative bungling.
It
would in any event be irregular for orders by the interlocutory Court
on application by undoubtedly frustrated litigants that
a trial may
proceed on default, to be frustrated by informal applications for
postponement at the dearth.
[8]
For that reason, this Court determined to refuse the
postponement
application.
[9]
The Court however in the exercise of its discretion,
permitted Mr
Coetzee to ask clarifying questions of certain of the plaintiff’s
witnesses insofar as it determined that this
would prove useful to
the Court.
The
trial
[10]
During the course of the trial, the plaintiff pursued damages under
the
heads of:
(i)
Past hospital and medical expenses in the sum of R597 038,74;
(ii)
Future hospital and medical expenses in the sum of R896 683,00;
(iii)
Future loss of earnings in the sum of R5 540 731,00;
(iv)
General damages in the sum of R1 500 000,00.
[11]
The plaintiff thus cumulatively seeks compensation in the amount of
R8 534 552,74
said to flow naturally in consequence of the
motor vehicle accident.
[12]
The Court was advised that the Fund has given a general undertaking
to
qualifying persons in terms of section 17(4)(a) of the Act, with
the result that the claim for future hospital and medical expenses

was obviated.  The trial proceeded on the balance of the heads
of damages sought.
[13]
Insofar as the plaintiff’s claim for general damages is
concerned,
the evidence led at trial established that post the motor
vehicle collision, the plaintiff was airlifted to the Sunshine
Hospital
where he spent two weeks in the Intensive Care Unit in an
induced coma as a result of his injuries.  He thereafter spent
close
to two months in High Care.
[14]
The evidence reveals that the plaintiff suffered serious injuries,
including
the degloving of his right leg, abrasions to his right arm
and back, a head injury, and underwent an above knee amputation of
his
right leg. As a result, he continues to experience physical pain
in the form of headaches, constant fatigue, phantom pains in his

right leg as well as pain in his knee, shoulders and back which
impacts his daily activities and mood.  He has limited capacity

to participate in sporting activities that he used to enjoy, has
become withdrawn from friends due to bullying, embarrassment and

depression arising out of his circumstances which significantly
impact his quality of life.
[15]
The evidence of Dr Van den Bout, an orthopaedic surgeon, reflects
that
the plaintiff was in severe pain for about a period of two weeks
post the accident and in moderate pain for a period of six weeks

thereafter consequent the amputation.
[16]
The evidence of Dr
Kritzinger, a neurologist, was that the nerve endings in the
plaintiff’s amputated leg would continue to
grow causing a
clumping of the nerves which would be extremely painful and would
have to be excised with future surgery.
[17]
This Court is of no doubt that the plaintiff has proven bodily
impairment,
has suffered greatly and has established his cause of
action on the merits for general damages.
[18]
The more controversial
aspect of the plaintiff’s claim, is that for future loss of
earnings.  It was advanced at trial
based on various expert
reports that beyond the physical and psychological impact of the
accident, which were convincingly established,
that the plaintiff
further presented with certain cognitive deficits in the area of
attention, working memory, memory, visual memory,
concentration,
mental tracking, rote teaming, inferential reasoning and information
processing speed.  Consequently, so it
was argued this would
impede the plaintiff’s further academic development and affect
his future earning capacity.  It
was advanced that the
plaintiff’s educational potential has been restricted to that
of a national diploma or a similar NQF5
qualification in
circumstances where based on his family history he was likely to have
achieved pre-accident an NQF8 qualification.
[19]
It became increasingly
evident during the course of the trial, that while the plaintiff’s
experts were in all instances well
qualified, their opinions as to
the existence of cognitive deficits were premised on the unproven
assumption that the plaintiff
had suffered a “
moderate
closed head injury”
[20]
The evidence led at trial,
by the neurologist, Dr Kritzinger, was that he was unable to classify
the nature of the head injury suffered
by the plaintiff but leaned
more towards to it being a “
mild
closed head injury”
.
He gave evidence that 90% of children with such injuries achieve a
full recovery and that in the case of the plaintiff,
he was of the
opinion that his intellectual capacity presented as normal although
the plaintiff showed signs of hyperactivity with
an attention deficit
disorder.  Dr Kritzinger stated that he did not believe that the
plaintiff suffered severe cognitive
deficits and that his
hyperactivity could be treated by the employment of medication such
as Concerta.[21]
Questioned as to why his
addendum report stated that the plaintiff had suffered a “
moderate
head injury”
, Dr
Kritzinger indicated that this was because he assumed the presence of
cerebral edema but immediately also conceded that there
was no direct
evidence of this, save for a report of a radiologist who was not
called to give evidence.
[22]
Ms Marina Genis, a clinical
psychologist, also gave evidence on the plaintiff’s
neuro-cognitive functioning and psychological
functioning post the
accident.  Her evidence was that the plaintiff had suffered
cognitive decline and certain psychiatric
disorders consequent on the
motor vehicle collision, that he had lower concentration than the
norm, as well as memory problems
which would affect his future
education.  She further opined that the plaintiff exhibited
symptoms of depression and post
traumatic stress disorder and had
become very self-aware of his disability, thus affecting his
amenities of life.  She concluded
that his test results could be
accounted by either a mild or moderate brain injury and was
irreversible due to its organic etymology.
When clarification
questions were put to her by the Fund’s representative, she
conceded that at the time her tests were carried
out the plaintiff
was not on medication which could bring about some improvement.
[23]
The evidence of Dr Joseph
Seabi, educational psychologist, was that the plaintiff’s IQ
was borderline and presented in the
low average range at the first
assessment.  His stated that the plaintiff struggled with memory
and number problems although
he fared better on language tests.
He was of the opinion that some medication could be employed to
assist the plaintiff and
that this would have short-term benefits.
[24]
It became apparent during his evidence, that Dr Seabi had based much
of his conclusions on the fact that the plaintiff had suffered a
“
moderate head injury”
, a conclusion he had
obtained from Dr Kritzinger’s report.  This of course
presents a difficulty, as Dr Kritzinger had
recanted such position,
being of the view that the plaintiff presented with a mild head
injury.  A further difficulty with
Dr Seabi’s evidence was
that he gave evidence that no educational interventions, such as
remedial classes had been employed
to improve the plaintiff’s
performance, which contradicted later evidence by both the plaintiff
and the plaintiff’s
father.  The plaintiff’s father
testified that after the accident the plaintiff has been attending
extra classes at
“
McGraff”
.  The plaintiff
himself testified that he was attending remedial classes provided by
“
Black Child Tutoring Services”
.  Lastly, Dr
Seabi could not convincingly explain why this Court could not take
into account the improvement in the plaintiff’s
Grade 9
results, post these interventions, as evidence that the poor
performance observed were an anomaly, attributable to the
plaintiff
having missed out on several classes. Dr Seabi ultimately conceded
that the plaintiff’s Grade 9 results were in
the normal margin.
[25]
Dr Seabi’s lack of
knowledge of the fact that the plaintiff was undergoing remedial
interventions to improve his grades, is
a cause for concern.  As
an educational psychologist it would ordinarily be expected that
these would be matters that he should
have specifically canvassed in
his two assessments of the plaintiff.  It lends a generalised
taint to his opinion, and accordingly
the Court is of the view that
his conclusions that the plaintiff has suffered a cognitive fallout
caused by the accident, cannot
be accepted.
[26]
Barring the difficulties of the expert witnesses to establish a
cognitive
deficiency arising from the accident, the evidence
concerning the physical impairment and the psychological impact of
the motor
vehicle collision, were all well-established.
Assessing
quantum
[27]
The first aspect this Court turns to, is the plaintiff’s claim
for past hospital and medical expenses in the sum of R597 138,74.
These damages are of course a natural consequence,
incurred to treat
the various injuries sustained by the plaintiff during the accident.
The evidence of Mr N[...], the plaintiff’s
father, was that
interventions such as the continuous need to adjust the plaintiff’s
prosthesis uses up virtually all of
the family’s medical
savings.  Some issue was raised by the representative of the
Fund, Mr Coetzee, that the plaintiff
had failed to adduce any
evidence concerning the past hospital and medical expenses incurred
and further that since the evidence
of Mr N[...] establishes that the
plaintiff had received the benefit of being on medical aid, that none
of these expenses claimed
under this head of damages, was in fact
incurred and could not constitute a loss.
[28]
This Court disagrees with the Fund’s contention that no
evidence
of past hospital and medical expenses was adduced.  In
the context of a trial being proceeded with by default it is typical

that certain issues which are not in themselves contentious will not
attract focused attention.  A reference however to the

plaintiff’s indexed medical schedule and supporting vouchers
bundle, at CaseLines section 23 reflects that a full schedule
of
medical costs incurred with supporting vouchers had been provided.
It is further observed that the plaintiff had given
notice in terms
of Uniform Rule 35(9) that the schedule and the attached documents be
admitted as what they purport to be.
The Fund was forewarned
that if it did not provide such admission the plaintiff would be
entitled to produce the said documents
at trial without proof.
Attached to the notice, was a further confirmatory affidavit provided
by a person in the employ of
the Third Party Recovery Department of
Discovery Health attesting to having perused the vouchers and
schedules and confirming that
these past medical expenses are related
to the claims paid for by the medical scheme for the treatment of the
injuries sustained
by the plaintiff in the motor vehicle accident.
[29]
It is further important to observe that at the commencement of
argument,
the Fund had sought a postponement so as to afford it a
further opportunity to investigate these costs said to have been
incurred.
That postponement application was refused.  In
those circumstances it must be accepted that the Fund was at all
times aware
of the evidence relied upon by the plaintiff to establish
the quantum of past medical expenses incurred.  The cumulative
expenses
incurred are in any event referred to in the written
submissions of the plaintiff’s counsel.  It would be
inappropriate
in this Court’s view to permit a party who is
debarred from participating in the proceedings to simply snipe from
the side
lines and upon such basis seek to exclude an entire head of
damages.  That said the observations of Mr Coetzee that the
plaintiff
has inappropriately sought to claim the costs of male
circumcision in the sum of R1 808,60 is correct.  This
amount must
be excluded.  Despite the Fund having been provided
an opportunity to participate to a limited extend in the proceedings,
it advanced no basis for the exclusion of other medical costs
claimed.  These expenses must accordingly be accepted as having

been incurred.
[30]
The
next point of contention under this head of damage, was the Fund’s
contention that it would be inappropriate to award
the plaintiff
damages in respect of past medical expenses incurred, in
circumstances where such expenses were borne by the medical
scheme.
Advocate Barreiro appearing for the plaintiff made short work of this
argument by referring to the yet unreported
decision of
Discovery
Health (Pty) Ltd v Road Accident Fund and Another
[6]
which confirms the legal principle that “
a
plaintiff’s insurance, her indemnification in terms of it, and
the subsequent subrogation of her insurer are all matters
of no
concern to the third party defendant”
.
[7]
With reference to the aforementioned decision, the authorities
therein cited of longstanding nature and the fact this Court
was
advised from the bar, that a petition to the Supreme Court of Appeal
against this judgment has been dismissed, this Court must
accept that
the present legal position to which it is bound is that the Fund
cannot seek to free itself of the obligation to pay
full compensation
to victims of motor vehicle accidents by adducing evidence that these
costs were borne by a private medical scheme.
[31]
Concerning the plaintiff’s
claim for future hospital and medical expenses in the sum of
R896 683,00, counsel for the
plaintiff in argument and in her
written submissions conceded that should an undertaking be provided
in terms of section 17(4)(a)
of the Act the need to pursue this head
of damage would be obviated.
[32]
The
matter of
Knoetze
obo M B Malinga v Road Accident Fund
[8]
records a blanket election by the Fund to furnish an undertaking to
every claimant who is entitled to a claim for payment for future

medical and ancillary expenses in terms of section 17(4)(a) of the
Act.  This Court is accordingly satisfied that this is
a case
where an order compelling the provisioning of such an undertaking may
appropriately be granted.  The uncontested evidence
is that the
plaintiff suffered a serious injury and a whole bodily impairment of
41%.
[33]
The
Court also holds that the plaintiff has proved an entitlement to be
awarded general damages.  General damages by their
nature are
designed to compensate a victim for damages which cannot be
quantified with reference to actual patrimonial loss.
In
Smit
v Road Accident Fund
[9]
Makgoka J held:
“
In determining
the award of damages to be made under the heading general damages
there are of course no scales upon which one can
weigh things like
pain and suffering and loss of amenities of life, nor is there a
relationship between either of them and money
which makes it possible
to express that in terms of money with any approach to certainty. The
broadest general consideration and
the figure arrived at must
necessarily be uncertain, depending upon the judge’s view of
what is fair in all circumstances
of the case.”
[34]
Ultimately a Court confronted with a claim for general damages, must
do the best it can on the evidence available by assessing damages
with regard to all the relevant facts and by applying a general

discretion.
[35]
On the
facts of the present matter, the plaintiff has been through an
extremely traumatic experience which has resulted in significant

bodily impairment as well as psychological damage. The plaintiff will
continue to experience pain as a result of neuroma and due
to his
permanent disability, his ability to freely enjoy the amenities of
life have been permanently compromised.  Taking
note of these
factors and the acute pain suffered by the plaintiff during
hospitalisation it is this Court’s view that a
significant
amount in general damages may appropriately be awarded.
[36]
In
the case of
Mthethwa
v Road Accident Fund
[10]
an award of general damages in the present sum of R1 549 000,00
was made in circumstances where the victim of the motor
vehicle
collision had similarly had an above knee amputation.  Yet in
that case the victim’s extensive injuries also
led to the
amputation of her arm shortly after the collision.  That victim
like the plaintiff
in
casu
pre-accident, partook in sports.  Accordingly in an application
of its general discretion to determine the quantum to be awarded
for
general damages, this Court is of the view that an award in the sum
of R1 200 000,00 would be appropriate compensation
for the
general damages suffered by the plaintiff.  This Court’s
assessment is informed by the observations it made
of the plaintiff
during his evidence, and its impression that the injuries sustained
by the plaintiff do not entirely exclude the
possibility of the
plaintiff leading an active lifestyle.  Indeed, the evidence of
the plaintiff’s father was that under
certain conditions, the
plaintiff is still able to participate in sporting activities.
[37]
A more
contentious issue is whether the plaintiff has proved his case to be
awarded the sum of R5 540 731,00 in compensation
for future
loss of earnings.  The industrial psychologist, Jeannie van Zyl,
gave evidence that as a result of the motor vehicle
collision, and
reliant on the opinions of the educational psychologist Dr Seabi, she
was of the opinion that the plaintiff post-accident
would likely only
achieve an NQF5 standard of education and thus would be employable at
the Paterson B3 job grade.  Her opinion
was heavily influenced
by the assumption that the plaintiff had suffered a moderate head
injury and further that there had been
a cognitive fallout as
proposed by Dr Seabi.  As indicated above, the evidence of Dr
Kritzinger was of a mild closed head
injury as opposed to a moderate
head injury.  Further the evidence of Dr Seabi of a cognitive
fallout and the extent of such
fallout must be treated with
circumspection for the reasons addressed above.  This Court’s
assessment of the plaintiff
as well as the evidence of the
improvement of his grades is that a cognitive fallout as a result of
the motor vehicle collision
has not been sufficiently demonstrated.
This necessarily impacts upon an assessment of an appropriate award
for loss of future
earnings.
[38]
A further
area of concern in the assessment of loss of future income, is the
contingency deduction applied by Mr Ryan Immermann,
the actuary for
the plaintiff.  His calculation was premised on information
provided by the industrial psychologist.
Notably no specific
contingency was made arising out of the plaintiff’s
pre-existing diagnosis for Type 1 Diabetes.
This was a curious
aspect, as the evidence of Mr N[...] was that the plaintiff had been
diagnosed with Type 1 Diabetes in 2013
which was being treated
through the use of insulin.  Type 1 Diabetes is a chronic
condition which can have a profound impact
on the plaintiff’s
life expectancy.  It is concerning that such matter which was to
the knowledge of Mr N[...] as well
as the industrial psychologist,
was not brought to the attention of the actuary.
[39]
Ultimately as this action
proceeded by default, no evidence was led by the Fund concerning the
impact of the plaintiff’s Type
1 Diabetes diagnosis on the
actuarial assessment provided.  This Court is thus constrained
to exclude the impact of diabetes
in its assessment of this head of
damages.
[40]
The plaintiff’s
failure however to establish a cognitive fallout resulting from the
motor vehicle collision is on a different
footing.  A reference
to the plaintiff’s actuarial bundle, reflects that the first
actuarial report prepared by the
firm Gerard Jacobson Consulting
Actuaries calculated the plaintiff’s net future loss at
R3 486 458,00 with a 25%
post-accident contingency
deduction.  This report was premised on the industrial
psychologist’s opinion that post-accident
the plaintiff’s
career progression would plateau in line with the Paterson C4 Median
Package. That assumes that the plaintiff
could still achieve a job
grading in upper junior management.  In a revised actuarial
report prepared on 6 March 2023 the
plaintiff’s net future loss
is calculated in the amount of R5 540 731,00.
Similarly, a contingency deduction
of 25% was applied.  This
further report is based on the revised views of the industrial
psychologist which postulate that
the plaintiff’s job
progression would plateau at an earning range in line with the
Paterson C2 Median Package i.e., a lower
junior management position.
[41]
This revised view of the
plaintiff’s loss of earnings is in turn based on an addendum
report provided by the industrial psychologist.
A consideration of
the industrial psychologist’s addendum report dated 1 March
2023 reflects that it is based on the assumption
that there was a
moderate closed head injury with the
sequelae
of cognitive fallouts as opined by Dr Seabi.  As aforestated, it
is this Court’s assessment that it has not been sufficiently

demonstrated that the plaintiff’s highest level of education
will in all likelihood be an NQF5 as proposed by Dr Seabi. The

Court’s impression of the plaintiff, who testified during the
hearing, is that he is not only confident but is further evidently

intelligent, a conclusion supported by his Grade 9 results, which Dr
Seabi appears to have overlooked. For that reason, the findings
of
the initial actuarial report of 13 September 2021 better accords in
this Court’s view to the plaintiff’s potential
future
loss of earnings.
[42]
Accordingly having regard to the facts of the matter, the evidence
submitted
and the submissions of the representatives of the parties,
I make the order set out hereinbelow:
IT IS ORDERED THAT:
[1]
The defendant shall pay the
plaintiff:
1.1
The amount of R5 181 788,74
(five million one hundred and
eighty-one thousand seven hundred and eighty-eight rand and
seventy-four cents) (“
the compensation sum”
):
1.1.1
comprising of the amount of:
1.1.1.1
R1 200 000,00 in respect of general damages;
1.1.1.2
R595 330,74 in respect of past medical and hospital
expenses;
1.1.1.3
R3 486 458,00 in respect of loss of earnings
and earning
capacity;
within 180 (one hundred
and eighty) days from the date of this order (“
the payment
date”
);
1.2
Interest on the compensation sum at
the rate of 9.75% per annum,
calculated:
1.2.1
from the date of judgment;
1.2.2
to the date of final payment;
In the event of the
defendant failing to pay the compensation sum by the payment date by
electronic fund transfer into Sonya Meistre
Attorneys Incorporated
Trust Cheque Account (0[...]) maintained at Standard Bank South
Africa, Alberton Branch (Branch Code 0[...]);
[2]
The compensation payment shall be made:
2.1
into the attorney’s trust account,
which trust account shall be
one envisaged in terms of section 86(4) of the Legal Practice Act, 28
of 2014;
2.2
for the sole benefit of the plaintiff,
pending the establishment of a
trust in accordance with the provisions of the Trust Property Control
Act, Act 57 of 1998 (as amended)
for the benefit of the patient; and
2.3
the plaintiff shall be the sole beneficiary
of the Trust.
[3]
The attorneys for the plaintiff (Sonya Meistre Attorneys)
are
ordered:
3.1
to cause a trust (“
the Trust”
), as envisaged in
paragraph 2 above, to be established in accordance with the
provisions of the Trust Property Control Act, Act
7 of 1998; and
3.2
to pay all monies held in trust by
them for the benefit of the
plaintiff to the Trust.
[4]
A trust instrument of the Trust, shall make provision
that:
4.1
The plaintiff is the sole capital and
interest beneficiary of the
Trust;
4.2
The appointed trustees are to provide
security to the satisfaction of
the Master, however, should Mr S[...] N[...] (the biological father
of the plaintiff) or Mrs L[...]
N[...] (the biological mother of the
plaintiff) be nominated to act as trustees, they be absolved from
providing security;
4.3
The trustees are to query and satisfy
themselves within 6 (six)
months of appointment that necessary steps have been engaged to
recover the legal costs associated with
this action, subject to
taxation, which are due to the Trust;
4.4
The ownership of the Trust property
vests in the trustees for the
Trust in their capacity as trustees;
4.5
At least 2 (two) but no more than 3
(three) trustees must be
appointed of which at least 1 (one) must be an independent
professional trustee.  Trustees are to
be nominated jointly by
Mr S[...] N[...] and Mrs L[...] N[...], the parents of the plaintiff;
4.6
The primary purpose of the Trust is
to administer the funds in a
manner which best takes into account the ongoing interests of the
plaintiff;
4.7
The powers of the trustees shall specifically
include the power to
make payment from the capital and income of the Trust for the
reasonable maintenance of the plaintiff, or
for any other purpose
which the trustees may decide to be in the plaintiff’s
interests, and if the income is not sufficient
for the aforesaid
purpose, the trustees shall have the power, for the purpose of this
Trust, in their sole and absolute discretion,
to:
4.7.1
acquire any shares, unit trusts, debentures,
stocks, negotiable
instruments, mortgage bonds, notarial bonds, securities, certificates
and any movable or immovable property
or any incorporeal rights and
to invest in such assets and to lend funds to any party or make a
deposit or investment with any
institution, such investment to be of
such nature and on such terms and conditions as the trustees may deem
fit;
4.7.2
exchange, replace, re-invest, sell, let, insure,
manage, modify,
develop, improve, convert to cash or deal in any other manner with
any asset which from time-to-time form part
of the Trust fund;
4.7.3
borrow money;
4.7.4
pledge any trust assets, incumber such assets
with mortgage bonds or
notarial bonds to utilise same as security in any manner whatsoever;
4.7.5
institute or defend any legal proceedings or
otherwise or take any
other steps in any Court of law or other tribunal and to subject
controversies and disagreements to arbitration;
4.7.6
call up and/or collect any amounts that may from
time to time become
due to the Trust fund;
4.7.7
settle or waive any claim in favour of the Trust;
4.7.8
exercise any rights or to incur any obligation
and with any shares,
stocks, debentures, mortgage bonds or other securities or investments
held by this Trust;
4.7.9
open accounts at any bank or other financial
institution and to
manage such accounts and if necessary to overdraw such accounts;
4.7.10
draw any cheques or promissory notes, to execute or endorse same;
4.7.11
take advice from any attorney or advocate or any other expert
for the
account of the relevant Trust account;
4.7.12
lodge and prove claims against companies in liquidation or under

judicial management and against insolvent or deceased estates;
4.7.13
appoint professional or
other persons in a temporary or permanent basis to conduct the whole
or any portion of the business of the
Trust under the supervision of
the trustees or to manage the investment of part of or the entirety
of the funds of the Trust and
to remunerate such persons for their
services out of the funds of the Trust;
4.7.14
form any company and to hold any interest in any company and to
form
any other trusts, to hold an interest in any other trust or
partnership or undertaking for the purpose of this Trust or in
the
interests of the patient;
4.7.15
commence any business or continue such business or to acquire
an
interest therein and for such purpose to acquire assets or to incur
expenses and to partake in the management, supervision and
control of
any business and to conclude any partnership or joint venture;
4.7.16
to accept any disposal in favour of the Trust and to comply with
any
conditions regarding such disposal;
4.7.17
in general to do all things and to sign all documents required
to
give effect to the aims of the Trust.
4.8
The trustees shall determine procedures
to resolve any potential
disputes, subject to the review of any decision made in accordance
therewith by this Honourable Court;
4.9
That in the event of the minor’s
marriage, his estate be
excluded from any community of property;
4.10
The suspension of the patient’s contingent rights
in the event
of cession, attachment or insolvency, prior to the distribution of
payment thereof by the trustees to the plaintiff;
4.11
That the amendment of the
trust instrument be subject to the leave of this Honourable Court;
4.12
In the event of the death of
the plaintiff before reaching the age of majority, the trust funds
devolve upon his estate;
4.13
That the trust property and the administration thereof
is subject to
an annual audit;
4.14
The Trust shall terminate when the plaintiff reaches
the age of 18
(eighteen), whereupon the trust property shall in its entirety pass
to the plaintiff.
[5]
The first trustee is required to furnish security to
the satisfaction
of the Master of the High Court.  Mr S[...] N[...] and Mrs
L[...] N[...] (should they be nominated as trustees)
are not required
to provide security to the Master of the High Court.
[6]
The Master of the High Court may exercise a discretion
to appoint an
alternative person as a trustee, should an appointed trustee refuse
or be unable to fulfil his or her obligations
as trustee.
[7]
The defendant is ordered to pay the costs of the appointment
of the
trustees as well as the costs of the administration of the estate of
the patient by the trustees at the end of each financial
year and
subject to the provisions of section 22 of the Trust Property Control
Act 7 of 1998 (as amended), until such time as the
Trust is
terminated.
[8]
The defendant is further ordered to furnish the plaintiff
with an
undertaking in terms of section 17(4)(a) of the Road Accident Fund
Act 56 of 1996, wherein the defendant undertakes to
pay the costs of
future accommodation of the patient in a hospital or a nursing home
or treatment of or rendering of a service
or supplying of goods
including the costs of remedial school to the patient to compensate
the patient in respect of 100% of the
said costs after the costs have
been incurred and on proof thereof, pursuant to the injuries
sustained by the patient in the motor
vehicle accident of 9 March
2018.
[9]
The defendant shall pay the plaintiff’s taxed or
agreed party
and party costs on the High Court scale, such costs to include the
costs reserved on 20 April 2023.
[10]
The aforementioned costs are to be paid directly by the defendant to
the plaintiff’s attorneys, which shall include:
10.1
Attendant upon obtaining the order of compensation;
10.2
Occasioned by the employment of counsel inclusive of
the costs of
preparing heads of argument;
10.3
Arising from:
10.3.1
the creation of the Trust;
10.3.2
provision of security by the trustees of the Trust;
10.3.3
the management of the Trust;
10.4
Occasioned by the preparation of the expert reports
of:
10.4.1
Dr Van den Bout (orthopaedic surgeon);
10.4.2
Dr Kritzinger (neurologist);
10.4.3
Dr Joseph Seabi (educational psychologist);
10.4.4
Marina Genis (clinical psychologist);
10.4.5
Rosalind McNab (educational therapist);
10.4.6
Maria Georgiou (occupational therapist);
10.4.7
Jeannie van Zyl (industrial psychologist);
10.4.8
Gerard Jacobson (actuary).
10.5
The reasonable taxed or agreed fees and reservation
fee for the
curator ad litem
.
[11]
This order must be served by the plaintiff’s attorneys on the
Master
of the High Court, Gauteng Division (Johannesburg) within a
period of 30 (thirty) days of the making thereof.
A E AYAYEE
Acting Judge of the
High Court of South Africa
Gauteng
Division, Johannesburg
This judgment was
handed down electronically by circulation to the parties’
representatives via e-mail, by being uploaded
to CaseLines and by
release to SAFLII. The date and time for hand- down is deemed to be
10h00 on 8 June 2023
Appearances:
On
behalf of the plaintiff:
Adv.
S. Barreiro
Instructed
by:
Sonya
Meistre Attorneys Inc.
On
behalf of the respondent:
Mr
Daniel Coetzee
Instructed
by:
State
Attorney, Johannesburg
Date
Heard:
20, 21
April 2023
Handed
down Judgment:
8
June 2023
[1]
[2007] ZACC 14
;
2007 (5) SA 620
CC.
[2]
Ibid
p
622-624.
[3]
(CCT 80/12) [2013] ZACC 7.
[4]
Ibid, para 26.
[5]
Ibid, para 27.
[6]
(2022/016179) [2022] ZAGPPHC 768 (26 October 2022).
[7]
Ibid
para
22.
[8]
Knoetze
obo Malinga and Another v Road Accident Fund
[2023]
1 All SA 708
(GP) (2 November 2022).
[9]
2013 (6A4) QOD 188 (GNP).
[10]
Mthethwa
v Road Accident Fund
(08/15751)
[2010] ZAGPJHC 538 (23 September 2010).