About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 211
|
|
Bouwer obo M.G v Road Accident Fund (36075/2018) [2021] ZAGPPHC 211; 2021 (5) SA 233 (GP) (26 March 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: 36075/2018
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
DATE:26/03/2021
In
the matter between:
Adv.
APJ Bouwer obo M G[…]
Plaintiff
and
The
Road Accident Fund
Defendant
JUDGMENT
VAN DER
WESTHUIZEN, J
[1]
The plaintiff,
nomine officio,
is the appointed
curator
ad litem
for one, M G[…], who
was a minor when a collision occurred on 14 March 2014. At the time
of the incident, the minor was a
passenger in a motor vehicle driven
by her great grandmother, E J M G[…] (Mrs G[…]). The
vehicle in which the two
were driving, collided with another vehicle
that had skipped a stop street whilst the G[…] were in the
intersection that
was controlled by traffic signs. As a result of the
collision, the minor sustained bodily injuries that resulted in
certain
sequelae
thereof.
A claim against the defendant, the Road Accident Fund, was instituted
in respect of damages suffered by the minor as a
result of the
injuries sustained by the minor during the said collision. At the
time of the incident, the minor was in Grade 1.
Mrs Greyling
instituted a separate claim in respect of the damages suffered by her
as a result of the injuries she sustained in
the said collision,
[2]
The minor sustained the following injuries that are common cause:
(a)
Head injury;
(b)
C6 bony vertebra compression fracture with C5/6
flexion instability;
(c)
Soft tissue injury of the skull;
(d)
Soft tissue injury of the right leg.
[3]
The issue of liability on the part of the defendant for damages
suffered as a result
of the said collision, remained in issue until
17 August 2017 when the defendant conceded liability in the matter
between Mrs G[…]
and the defendant. An order in that matter
was granted by agreement between Mrs G[…] and the defendant in
terms of which
the defendant conceded a 100% liability for any
damages that may be proven or agreed upon by Mrs G[…].
[4]
However, inexplicably the issue of liability in respect of the minor
remained in issue.
That issue was only finalised shortly before this
matter came to trial before me on 26 January 2021. The defendant, and
rightly
so, conceded 100% liability for damages suffered by the minor
as a result of the said collision that may be proven or agreed upon.
The defendant further provided an undertaking in respect of future
medical expenses that the minor may incur in respect of the
injuries
sustained. The issue of General Damages was to be postponed,
liability for such damages had been denied and refused by
the
defendant. The only issue before me was that of loss of future
earnings or earning capacity of the minor.
[5]
In view thereof, as has become the custom, the defendant did not file
any expert reports
and only those provided by the plaintiff were to
be considered.
[6]
Mr Fourie, who appeared on behalf of the plaintiff, submitted that
the relevant expert
reports clearly established a need for an award
of damages. He further submitted what a reasonable and equitable
amount of loss
of future earnings would be. The issue of
contingencies to be applied in respect of the amount to be awarded is
reasonable and
well explained. I accept the percentages to be applied
as reasonable and fair. I further accept his submissions in that
regard
and agree therewith.
[7]
Mr Bouwer, who was the appointed
curator
ad litem
, filed a thorough report for
which he is thanked. His oral submissions were of further assistance
to me. He indicated his acceptance
of the reasonableness of the
amount of the award requested.
[8]
In further assistance to the court, Mr Fourie prepared a draft order
relating
inter alia
to
the amount to be awarded. That draft order also encapsulates the
protection to be offered in respect of the quantum of the damages
to
be awarded. In that regard, a trust is to be established and a
proposed trust deed was attached. The incumbent trustee also
indicated the acceptance of such appointment and that acceptance was
attached to the
curator ad litem
report.
[9]
I agree with the proposed order, but for one issue. That issue
relates to contingency
fee agreements that were entered into by Mrs
G[…] on the minor’s behalf. I requested additional
written submissions
to be filed by counsel. Consequently, I reserved
judgment.
[10]
Contingency fee agreements between clients and their respective
attorneys are usually entered
into where the client is either
indigent or does not have the resources to finance litigation entered
into by them and would thus
be denied access to justice.
[1]
There is much merit for such procedure and it is regulated by
Statute, namely the Contingency Fee Agreement Act, No. 66 of 1997.
[11]
In terms of such contingency fee agreement, the client agrees and
undertakes to pay his or her
attorney a so-called success fee from
the capital received from the claim instituted by the client. The
attorney would in such
event “fund” the litigation and
recoup a “success fee” if the litigation is finalised in
his or her client’s
favour. At the base of such “success
fee” agreement, lies the sweetener of such arrangement in
favour of the attorney
to charge a higher fee than normal. There is
however a proviso: not more than a 100% of the normal fees may be
recovered and it
may not exceed 25% (inclusive of VAT) of any capital
amount awarded to the client and only the lesser of the two amounts
may be
so recovered. The true purpose of such arrangement lies in the
uncertainty of the possible outcome of litigation and the risks
involved in such litigation entered into by the client.
[12]
In the present matter, two contingency fee agreements were entered
into on behalf of the minor.
The minor was represented in both
instances by her great grandmother, Mrs G[…]. The first
contingency fee agreement was
entered into on 28 June 2016 with
Attorney Christo Botha from Christo Botha Attorneys. When Mr Botha
passed away, this matter was
taken over by Messrs Gouse van Aarde
INC, the present attorneys of record. A second contingency fee
agreement was entered into
with this firm of attorneys on 5 May 2017.
[13]
Mr Bouwer indicated that he had considered the agreements and has
ratified those in so far as
that might be required. Mr Bouwer
submitted that he was satisfied with the concluding of the two
agreements in view thereof that
the minor was represented by her
great grandmother in whose care the minor was at the time.
[14]
It was submitted by Mr Fourie that he was satisfied with Mrs G[…]
representing the minor
as she, Mrs G[…], was the
de
facto
guardian of the minor at all
relevant times. The minor was resident with Mrs G[…] prior to,
at the time of the incident,
and at the time that the two agreements
were entered into. It was only recently that the minor returned to
her biological mother
and resided with her. It appears that the minor
endured a troubled time since her birth and for the greater part
thereafter, until
she took up residence with her biological mother
very recently.
[15]
Mr Fourie, in his oral submissions, further indicated that he was
aware of the concluding of
one of the contingency fee agreements
which he considered with reference to the prescribed requirements for
such an agreement.
He had one concern. It related to a specific
paragraph therein that appeared to be ambiguous or confusing. More
recently, Mr Fourie
became aware of the existence of a second
contingency fee agreement which he subsequently considered. He
further submitted that
as
de facto
guardian of the minor, Mrs G[…] was
acceptable at representing the minor in concluding the said
agreements on the minor’s
behalf. That was also the submission
of Mr Bouwer.
[16]
In his oral submissions that Mrs G[…], as
de
facto
guardian, was legally qualified
to sign contingency fee agreements on behalf of the minor, Mr Fourie
referred to the unreported
judgment in this Division in the matter of
Constant Wilsnach N.O. v Thabo Motaung
et al
(Case No. 22553/2019 dated 16
November 2020). However, he drew my attention to paragraph [54]
thereof. That paragraph dealt with
the issue whether South African
Law would recognise a
de facto
adoption with specific reference by the court to a
reported judgment in the Western Cape High Court, namely
Flynn
v Farr NO et al
2009(1) SA 584 (C).
Both those matters concerned adoption and the effect on intestate
succession. Those judgments are of no real
assistance in the present
matter.
[17]
My attention has further been drawn to a judgment in this Division
that is yet to be reported.
It is a judgment by Tuchten, J.
[2]
That matter related to
ex
parte
applications
for the appointment of a
curator
ad litem
to
act on behalf of minors who have instituted actions against the
defendant for the recovery of damages suffered, as provided for
in
the
Road Accident Fund Act, No.56 of 1996
. The gist of that judgment
relates to whether it is necessary for the appointment of a
curator
ad litem
to
act on behalf of minors in matters against the defendant for the
recovery of damages suffered as provided for in the
Road Accident
Fund Act. It
was held in that judgment that the appointment of a
curator
ad litem
would
depend on the merits of each matter. That judgment does not assist in
determining the vexed question in the present matter,
namely that of
guardianship of a minor and the concluding of a contingency fee
agreement on behalf of a minor.
[18]
Although the
Molantoa
-matter
is not in point, I find useful directions in that judgment. Those
relate to the right of minors to have assistance in vindicating
their
constitutional rights in court.
[3]
In that regard, the function of a
curator
ad litem
in
protecting the interests of a minor would be the same as those
undertaken by a good and prudent parent. The essential purpose
of
such appointment of a
curator
ad litem
is
to avoid any conflict of interest.
[4]
The intention being to act in the best interest of the child/minor.
[19]
The present matter relates to the issue of guardians and in
particular the content of the term
“guardianship” and the
scope thereof in the context of concluding a contract on behalf of
the minor.
[20]
The common law recognised guardianship in a broad sense. The concept
“guardianship”,
has as content the lawful authority or,
traditionally, parental power which the parent or guardian has over
the person and/or the
property of the child or ward who was a
minor.
[5]
Traditionally, the
term “minor” included
infantes
who
were under the age of 7 and
pupilli
who
were between the ages of 7 and 21, and once the Children’s Act
came into force, 18 years. In terms of the Children’s
Act, the
age of majority, traditionally 21 years, has been lowered to 18
years.
[21]
Once the Children’s Act came into force, it acknowledged the
common law concept of guardianship,
traditionally that of parental
authority or power, as a component of parental responsibilities and
rights.
[6]
[22]
In South African Law there are five kinds of guardians:
[7]
(a)
Natural guardians – these include the
biological and adoptive parents who have full parental
responsibilities and rights of
their children under the age of
majority;
(b)
Testamentary guardian – where both parents
(natural or adoptive) have guardianship over the minor, the first
dying cannot
deprive the surviving spouse of guardianship of the
minor in the former’s will. A parent who has sole guardianship
or care
of the minor is entitled to appoint by will a fit and proper
person as guardian upon his or her death;
(c)
Assigned guardian – a High Court may on
application by any person who has an interest in the well-being, care
and development
of a minor, appoint a person as a guardian of the
minor;
(d)
Testamentary
tutor
–
a sole guardian of a minor may appoint or
nominate a
tutor
by
will or other deed to administer and manage the estate. The
tutor
’
s
responsibilities are limited to administering and managing the
minor’s property and does not have any parental
responsibilities
and rights as in the case of a testamentary
appointed guardian;
(e)
Tutor dative
–
under
the common law, where a minor has no natural guardian or testamentary
tutor
, a
tutor
may
under certain circumstances be appointed by the Court or the Master
of the High Court.
[23]
From the foregoing, there are three types of guardianship that relate
to the parental responsibilities
and rights of a minor, namely,
natural, testamentary and assigned guardians. The latter are those
appointed by the court.
[24]
It is against this background that the provisions of the Children’s
Act in respect of the
content of parental responsibilities and rights
of minors are to be considered.
[25]
On a purposive reading of the Children’s Act, and in particular
Chapter 3 thereof, it deals
with the parental responsibilities and
rights in respect of children (minors). In the broad sense, the
aforementioned types of
guardians acknowledged in South African Law,
are dealt with and their rights and responsibilities are
stipulated.
[8]
[26]
Mr Fourie, at my request, submitted further written submissions in
respect of the concluding
of the said contingency fee agreements. In
those, he made submissions with reference to the general types of
guardians under the
common law and in that regard he referred to the
passage in Wille.
[9]
He
submitted that under the common law, the term “guardianship”
had both a narrow and a broader content and context.
[10]
He further referred to provisions in the Children’s Act, 38 of
2005, dealing with the guardianship of a minor.
[11]
Mr Fourie further submitted that in respect of the definition in the
Children’s Act of the word “guardianship”,
a broad
interpretation should be afforded to the phrase “guardianship”.
[27]
The Children’s Act defines the word “guardian” as
follows:
“’
Guardian’
means a parent or other person who has guardianship of a child”
The
word guardianship is defined as:
“’
Guardianship’,
in relation to a child, means guardianship as contemplated in
section
18.
,”
[28]
In general,
section 18
of the Children’s Act relates to
parental responsibilities and rights.
Section 18(1)
clearly provides
that a person may have either full or specific parental
responsibilities and rights in respect of a child. It
is stipulated
in
section 18(2)
that the parental responsibilities and rights that a
person may have in respect of a child include certain
responsibilities and
rights:
(a)
To care for the child;
(b)
To maintain contact with the child;
(c)
To act as guardian of the child; and
(d)
To contribute to the maintenance of the child.
[29]
Furthermore,
section 18(3)
stipulates the duty of the guardian. That
section reads as follows:
“
(3)
Subject to subsections (4) and (5), a parent or other person who acts
as guardian of a child must –
(a) administer and
safeguard the child’s property and property interests;
(b) assist or
represent the child in administrative, contractual and other legal
matters; or
(c) give or refuse any
consent required by law in respect of the child, including –
(i) consent to the
child’s marriage;
(ii) consent to the
child’s adoption;
(iii) consent to the
child’s departure or removal from the Republic;
(iv) consent of the
child’s application for a passport; and
(v) consent to the
alienation or incumbrance of any immovable property of a child.”
[30]
Subsections (4) and (5) of
section 18
provide for specific instances
where more than one person has guardianship of a child. Those are not
of any relevance in the present
instance.
[31]
With reference to the above quoted
section 18(3)
of the Children’s
Act, Mr Fourie submitted that the phrase “
other
person who acts as guardian of a child”
,
as contained in that section should be “
afforded
a broad interpretation”
. In
furtherance of his submission, Mr Fourie submitted that the said
phrase would include a person that is indeed not “legally”
a guardian. Thus, and so submitted Mr Fourie, the said phrase
includes a so-called
de facto
guardian. There is no merit in those submissions
for what follows.
[32]
It is trite that when interpreting a statute, like any other
document, the context is important.
[12]
Not only is a word or phrase to be construed in the particular
sentence or section or paragraph, but also the context thereof within
the whole Act.
[33]
The definition of the word “guardian” in section 1 of the
Children’s Act is
clear and unambiguous. The content and
context of that word is to be understood within the ambit of the
South African Law as recorded
above. There are specific types or
kinds of guardians. The concept of “guardianship” as
defined in section 1 of the
Children’s Act is to be understood
against the context and content of the concept “guardian”.
[34]
The phrase, “
other person who acts
as guardian of a child”,
has as
antecedent the provisions of section 18(2), read with section 18(1)
of the Children’s Act. It is derived from the “parental
responsibilities and rights that a person may have in respect of a
child. Those are defined in the provisions of the whole section
18 of
the Children’s Act. The phrase is further to be considered
within the context of the whole of Chapter 3 of Children’s
Act,
i.e. sections 19 through to 41 thereof.
[35]
So considered, section 18(3) of the Children’s Act does not
create a further kind or type
of guardian, the so-called
de
facto
guardian.
At best, the so-called
de
facto
guardian
would be a person that is contemplated in section 23 of the
Children’s Act. In terms of the provisions of that section,
no
guardianship is awarded to such a person,
[13]
only specific responsibilities and rights can be afforded to such
person on application to the court. Such responsibilities and
rights
do not merely befall such a person. Those are awarded by the court,
who is obliged to consider various factors as contained
in that
section.
[36]
Section 24 of the Children’s Act provides specifically for an
award of guardianship on
application. That section stipulates who may
so apply and the factors that are to be considered in respect of such
application.
That section echoes the common-law court-appointed
guardian as recorded above.
[37]
The testamentary appointed guardian acknowledged in the common law is
contemplated in the provisions
of section 27 of the Children’s
Act.
[38]
The true position of Mrs G[…]
vis-à-vis
the
minor at that time, is contemplated in the provisions of section 32
of the Children’s Act. That section clearly and unambiguously
does not grant any guardianship to the person contemplated
therein.
[14]
Mrs G[…],
furthermore, never applied to court for an assignment of guardianship
over the minor. At best, she was an informal
care-giver to the minor
due to the particular circumstances existing at the time.
[39]
It is common cause that the minor’s biological mother is still
alive. She has the parental
responsibilities and rights as provided
in sections 18 and 19 of the Children’s Act. She is obliged to
act in the best interests
of the child/minor. She did not participate
in these proceedings. No explanation was provided.
[40]
At the time that either of the two contingency fee agreements were
concluded, Mrs G[…]
had no authority, nor any court, or
otherwise awarded rights, to act on behalf of the minor in that
regard. In particular, Mrs
G[…] could not usurp the rights
contemplated in section 18(3)(b) of the Children’s Act.
[41]
There is a further reason why Mrs G[…] could not conclude the
said contingency fee agreements
on the minor’s behalf. The
clear and unambiguous intention of the Children’s Act has at
its core the best interests
of the child. The concluding of an
onerous agreement to the estate of a child, can never be in the best
interests of a child. A
contingency fee agreement can never be in the
best interests of a child. The content of such agreement is in the
best interests
of the legal practitioner who is to represent the
child. It is for that reason that strict requirements are stipulated
in the Contingency
Fee Agreement Act as to its content and purpose.
[42]
When considering a contingency fee agreement, an important factor
concerns the risks involved
in entering into potential litigation on
behalf of a client. Where the risk is minimal, or so far removed that
the necessity of
concluding a contingency fee agreement with a client
is questionable, it may not muster the test.
[43]
Mr Fourie further submitted that, in the present instance, the issue
of liability was only settled
by the court long after the concluding
of the second contingency fee agreement on behalf of the minor. Thus,
Mr Fourie submitted
that the risk of not proving liability on the
part of the defendant remained in issue. Hence, it was in the best
interests of the
minor to conclude a contingency fee agreement on
behalf of the minor. There is no merit in that submission.
[44]
In the present instance, the minor was barely 7 years old. She was a
passenger in a motor vehicle
involved in a collision and thus no
contributory negligence could befall the minor. It is the so-called
1% matter to prove liability
for damages successfully. There was, and
there could be, no risk in claiming damages that arose from the
collision from the defendant.
The concluding of a contingency fee
agreement was not required, nor necessary.
[45]
In my opinion, the concluding of either of the two contingency fee
agreements on behalf of the
minor was a voidable transaction, if not
void.
[15]
Neither of the two
contingency fee agreements can be accepted. The mere fact that the
curator
ad litem
appeared
to have ratified the concluding of the two contingency fee
agreements, is of no consequence. There is no valid agreement
to
ratify and furthermore, it is not in the minor’s best interests
to slice away a sizable portion of the award to be allowed.
[46]
It follows that the draft order provided by Mr Fourie cannot be
granted in its entirety.
[47]
The proposed Trust Deed appears to be acceptable, but for one issue.
In paragraph [6] thereof,
it is stipulated that the Trust would
endure until the minor attains the age of 21 years. There is no magic
in attaining that age.
In my view, a person of 21 years of age is not
necessarily sufficiently mature to be capable of handling a large
amount sensibly.
In contrast, a person who has attained the age of 25
years would, due to life experiences, be more mature and capable of
handling
a large amount sensibly. I would amend the
pro
forma
Trust Deed to read 25 years.
I grant the following
order:
1.
The Defendant is causably liable for 100% of the
plaintiff’s proven or agreed damages.
2.
The Defendant is ordered to pay the amount of
R 3 531 486-00
(THREE MILLION FIVE HUNDRED AND THIRTY-ONE THOUSAND FOUR HUNDRED AND
EIGHTY-SIX RAND)
in respect of loss of earnings to the Plaintiff
into the following trust cheque bank account of
GOUSE VAN AARDE
INCORPORATED:
GOUSE
VAN AARDE INGELYF
ABSA
BANK
BRANCH
CODE :
632 005
TRUST
ACCOUNT :
[…]
REF
NO
:
ALG/5683
who
will hold the said funds in trust for a trust to be created in terms
of clause 6 of this order.
2.1
Should the Defendant fail to pay the
above-mentioned amount on/or before 14 days from date of this court
order the
Defendant will be liable to pay
interest on the said amount at the rate of 7% per annum calculated
from date of this order to date
of payment.
3.
UNDERTAKING IN TERMS OF RULE 17(4)(a) OF ACT 56 OF 1996
3.1
The Defendant is ordered to furnish an undertaking in terms of the
provisions of
section 17(4)(a)
of the
Road Accident Fund Act, 56 of
1996
, in respect of 100% of the future accommodation in a hospital or
nursing home or treatment of/or rendering of a service or the supply
of goods to M G[…] (“the minor child”), arising
from injuries sustained in a motor vehicle collision which occurred
on 14 March 2014.
3.2
The aforesaid undertaking will include:
(a)
The costs of the trustee who is to be appointed in
terms of paragraph 6 hereof and which costs will be limited to the
fees prescribed
in respect of a
curator
appointed in terms of the
Administration of Estates Act, 66 of 1965 (as amended);
(b)
The costs in respect of the furnishing of security
by the trustee of the trust to be created as aforesaid and the annual
administration
costs;
4.
The Defendant will pay the Plaintiff’s taxed
or agreed party and party costs on a High Court scale, subject to the
discretion
of the Taxing Master, including reasonable costs of all
consultations with the Plaintiff to consider the offer made by the
Defendant,
the costs incurred to accept the offer and to obtain
payment of the amount and/or the undertaking mentioned above as well
as any
costs reserved.
5.
The costs referred to herein above in paragraph 4 shall also include
the Plaintiff’s
costs and expenses as far as experts and
counsel are concerned, including the following:
5.1
The fees of Senior-Junior Counsel on the High
Court Scale, inclusive but not limited to Counsel’s full,
reasonable day fee
and fees for preparation;
5.2
The reasonable fees for the
Curator
ad Litem
;
5.3
The costs of the trial day of 26 January 2021;
5.4
The reasonable, taxable costs of obtaining all
medico-legal / expert reports including RAF4 Serious Injury
Assessment and actuarial
reports from the Plaintiff’s experts
which were furnished to the Defendant, specifically in respect of the
following experts:
5.4.1 Dr MM
Malan (RAF4);
5.4.2 Dr MM
Malan (Medico-legal Report);
5.4.3 Dr AM
Pillay
5.4.4
Madelien Mills
5.4.5 Mr.
Pieter Marais
5.4.6 Dr U
Kunzmann
5.4.7 Dr C
Visser
5.4.8 Ingrid
Kleynhans;
5.4.9 Lise
van Gass; and
5.4.10 Johan
Sauer.
5.5
The reasonable consultation, preparation,
qualification, travelling and reservation fees, if any, of the
experts of whom notice
have been given, in terms of rule 36;
5.6
The costs of all consultations between the
Plaintiff, her attorney and/or counsel in preparation for hearing of
the action to discuss
the terms of this order;
5.7
The costs related to the creation of the trust
referred to in paragraph 6
of
this order.
5.8
The reasonable, taxable accommodation and
transportation costs (including Toll and E-Toll charges) incurred on
behalf of or by the
Plaintiff in attending medico-legal consultations
with the parties’ experts, consultations with the Plaintiff’s
legal
representatives and the court proceedings, subject to the
discretion of the Taxing Master;
6.
CREATION OF A TRUST:
6.1
The Plaintiff’s attorneys,
GOUSE
VAN AARDE INCORPORATED
(hereinafter
referred to as “the Plaintiff’s attorneys”) shall
attend to the creation of a trust, which trust:
(a)
Will incorporate in its trust deed the provisions more fully set out
in the draft trust
deed annexed hereto as annexure “A”;
(b)
Will as its main aim administer the capital amount on behalf of M
G[…].
6.2
The trustee of the trust so created shall furnish security to the
satisfaction of the Master
of the High Court.
6.3
The undertaking issued in terms of the provisions of section 17(4)(a)
of the Road Accident
Act, 56 of 1996, as set out in paragraph 2
above, will be administered by the trustee, and the trustees will be
entitled to the
prescribed remuneration for the administration of the
undertaking.
6.4
The Plaintiff’s attorneys shall keep the monies received as set
out in clause 1 of
this order in an interest bearing trust account
for the benefit of M G[…] in terms of the provisions of
section 86(4) Legal
Practice Act 28 of 2014 (as amended) and shall
pay such monies over to the trustees of the trust to be created in
terms of clause
4.1 of this order, immediately once the Master of the
High Court has issued the trustees with the necessary letters of
authority
and immediately after the trustees have informed the
Plaintiff’s attorneys that a bank account for the trust has
been opened.
6.5
The Plaintiff’s attorneys are, however, authorized to pay all
disbursements reasonably
incurred in respect of this action on behalf
of the Plaintiff from the aforementioned funds held in trust and
shall submit to the
trustees to be appointed a complete schedule of
such disbursements paid as well as proof of payment thereof.
6.6
The Plaintiff’s attorneys are further authorized to pay from
the aforementioned funds held
in trust, the costs of provision of
security to the Master of the High Court by the trustees of the trust
to be created, which
costs in turn must be refunded by the Defendant
to the Plaintiff.
6.7
The Plaintiff’s aforementioned attorneys shall submit an
attorney and own client bill of
costs to the said trustees to be
appointed who shall authorize payment thereof. After such
authorization the Plaintiff’s
attorneys shall be entitled to
subtract their fees and disbursements in terms of such attorney and
own client bill of costs from
the funds referred to in clause 2
above, alternatively and in the event of such funds having been paid
to the trustees by the Plaintiff’s
attorneys, the trustees
shall make payment of such amount to the Plaintiff’s
attorneys. In the event of a dispute in
respect of the said
bill of costs, same will be submitted for taxation.
7.
The Plaintiff agrees to the following:
7.1
In the event that the costs referred to above are
not agreed upon, the Plaintiff agrees to serve a notice of taxation
on the Defendant’s
attorneys of record;
7.2
The Plaintiff shall allow the Defendant 14 court
days to make payment of the taxed costs from date of settlement of
taxation thereof.
8.
The trustee is authorized to pay the reasonable
costs in respect of the formation of the trust from the
capital amount aforesaid.
9.
The trustee shall furnish security to the
satisfaction of the Master of the High Court.
10.
Should the trust not be formed within six months
from date hereof, the Plaintiff is ordered to approach this
Honourable Court within
six months thereafter, to obtain instructions
in respect of the manner in which the capital amount should be dealt
with for the
benefit of M G[…].
11.
The costs referred to above shall be paid into the
aforementioned trust account of
GOUSE
VAN AARDE INCORPORATED.
12.
All amounts shall bear interest at a rate of 7%
per annum from the date that they are due and payable.
13.
It is declared that the contingency fee agreements
signed respectively on 27 June 2016 and 5 May 2017 are invalid.
C
J VAN DER WESTHUIZEN
JUDGE
OF THE HIGH COURT
Date
of Hearing:
26
January 2021
On
behalf of Applicant: M J
Fourie
Instructed
by:
Gouse van Aarde Inc.
On
behalf of Respondent: No representation
Instructed
by:
Judgment
delivered:
26 March 2021
[1]
Bradfield
G B,
Christie’s
Law of Contract,
2016,
p 411-413.
[2]
Ex
parte Thithi Rebecca Molantoa et al
(Case
No. 3198/18 dated 26/9/2018).
[3]
See
section 14 of the Children’s Act read with section 28 of the
Constitution.
[4]
Martin
NO v Road Accident Fund
2000(2)
SA1023 (W) at 1034I-1037I.
[5]
Du
Bois F (ed.),
Wille’s
Principles
of South African Law,
2007,
VI Parental Responsibilities and Rights, p 204.
[6]
Ibid.
[7]
Wille
,
pp 208 - 211
[8]
Sections
18 – 41, in particular sections 19, 20, 24 and 27; see also
Clark B (ed.),
Family
Law Service
,
E37-E43
[9]
Wille,
pp
208-211.
[10]
See
the discussion under section 18 of the Children’s Act in Davel
C J
et
Skelton
A M,
Commentary
on the Children’s Act
,
p 3-5.
[11]
Section
18(3).
[12]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012(4)
SA 593 (SCA)
[13]
Boezaart
T (ed.),
Child
Law in South Africa
,
2017, p 197
[14]
See
Family
Law Service
,
supra,
at
E46-E54
[15]
See
in general,
Breytenbach
v Frankel et al
1913
AD 390.