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[2021] ZAGPPHC 334
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Van Rooyen obo M.G.N v Road Accident Fund (77303/2018) [2021] ZAGPPHC 334 (17 May 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:
77303/2018
REPORTABLE: YES / NO
OF INTEREST TO OTHER
JUDGES: YES/NO
REVISED.
DATE: 17/05/2021
In
the matter between:
ADV
M VAN ROOYEN obo M G[…]
N[…]
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
K. STRYDOM (AJ):
1. This
matter was placed on the Settlement Roll on the 15
th
of
April 2021.
2. M
N[...] sustained severe injuries as a result of a motor vehicle
collision which occurred on the 14
th
of February 2010.
M N[...] had an unfortunate childhood, having lost his caregivers,
being his paternal grandmother and father,
after which he was left in
the care of his paternal aunt, who does not have any parental rights
and/or responsibilities.
Having been born on the […], M
N[...] was […] at the date upon which the matter appeared on
the Settlement Roll.
3. Adv
Van Rooyen was appointed as his
curator ad litem
on the 31
st
of January 2019.
4. M
N[...] sustained a fracture of his right tibia which has healed as
well as a concussive head injury.
The Neuropsychologists differ
with the regards to the severity of the concussive brain injury, with
Doctor Olivier stating that
it is a severe concussive injury and Mrs
Peta suggesting that the outcome is more in keeping with a mild brain
injury.
5.
However, the common thread is that he does suffer from neurocognitive
deficits and behavioural changes which
is confirmed by poor school
performance. It is also not in dispute that he suffers from
Post-Traumatic Stress Disorder as
well as Major Depressive Disorder.
6. The
Educational Psychologist Mrs Bubb (having no counterpart as an
expert) notes that the deficits found tie
in with a more severe
concussive brain injury in a young child at a vulnerable age of brain
development. She regards M N[...]
as significantly compromised.
7. The
Psychiatrist Dr Shevel is of the view that M N[...] is not educable
but is trainable.
8. The
Industrial Psychologist is of the view that M N[...] will obtain a
grade 12 qualification but has many
problems and suggested a higher
post morbid contingency deduction to account for this.
9.
Despite the aforementioned findings, none of the experts gave any
indication as to M N[...]’s legal capacity
or his ability to
manage his own affairs.
10. In the submission
documents in support of settlement, however, it is stated that the
experts are
ad idem
that the award needs to be protected. The
Plaintiff and curatrix ad litem argue that that M N[...] is not
someone who can be declared
of unsound mind under Uniform Rule 57.
As such, the reasoning goes, that in accordance with the views of the
curatrix ad litem
, the award must be protected by a Trust.
11. It was brought to my
attention that the Road Accident Fund objects to the creation of the
Trust and refers to the wording of
the Rule 57 (13) which states:
“
Save to such
extent as the court may on application otherwise direct, the
provisions of sub rules 1 to 11 shall, mutatis mutandis,
apply to
every application for the appointment of a curator bonis to any
person on the ground he is by some disability, mental
or physical,
incapable of managing his own affairs.”
12. The Road Accident
Fund reasons that:
“
T
here is no way
that the attorney can allege that they do not have to bring an
application in terms of Rule 57 for the creation of
a trust to
protect the claimant’s compensation amount to be paid by the
RAF. The application in terms of the rule enables
the court to
make an informed finding whether this is necessary or not and which
method of protection is more appropriate in the
circumstances”
.
13. It is interesting to
note that the same correspondence from the Road Accident Fund states
that they would appoint legal representatives
to argue this point.
The correspondence is dated the 22
nd
of September 2020,
however as at the 15
th
of April 2021 when the matter
appeared before me there was no legal representation by the Road
Accident Fund. Their submissions
as raised above are
accordingly not formally before this Court. It should also be
noted that, even if the submissions were
before Court, given the
appointment of Adv Van Rooyen, it is uncertain how the Road Accident
Fund avers that Rule 57 was not complied
with. Adv Van Rooyen
has provided a comprehensive report with her findings and
recommendations as required by Rule 57 and
this Court is in a
position to evaluate those submissions and findings.
14. Having accepted that
the settlement amount is fair and in line with the evidence, I
queried the curatrix ad litem regarding
the proposed trust and
specifically what authority the Court has to bind M N[...] to the
terms of the trust once he reached age
of majority as no finding of
incapability has been made. Supplementary submissions and heads of
arguments were delivered by Ms
Marx (Counsel for the Plaintiff) and
Ms Van Rooyen.
Issues to be
decided:
15. Naturally, for the
period of minority, the Court as the upper guardian of minors is
entitled to
mero motu
make any decision to safeguard the
interests of the minor and the curatrix ad litem, as guardian, is
entitled to act on his behalf.
16. The main issue
therefore to be decided is whether the Court, on recommendation of
the
curatrix ad litem,
can bind a minor to a disposition of
his estate (the award being managed by a trust) for a period that
continues into majority,
without a finding of inability to manage his
own affairs.
Principles
applicable to adult patient’s vis a vis inability and trusts:
17. The curatrix ad litem
argued that in the M N[...]’s case, it would not be appropriate
to declare him of “unsound
mind”
18. It is important to
distinguish between
of
Rule 57(13) of the Uniform Rules of Court, which related to a
declaration of inability to manage own affairs due to some mental
or
physical impediment and Rule 57(1), which relates to a declaration
that the person is of unsound mind or mentally disordered,
which is
not the position
in
casu
.
These are two separate types of declarations with different
consequences. The query raised during the settlement hearing
pertained
to Rule 57(13) and not Rule 57(1).
19.
There
is authority for the fact that a curator bonis (and by implication a
trust) may be appointed even where a person is compus
mentis under
Rule 57(13). As was stated in Ex Parte Wilson: In Re Morison
1991 (4)
SA 774
(T)
“
The
condition of the respondent appears to fall within the ambit of Rule
57(13) of the Uniform Rules of Court rather than Rule 57(1),
which
relates to a declaration that the person is of unsound mind or
mentally disordered, which is not the position in casu.
It
can be accepted that although curator bonis are not usually
appointed to persons who are compos mentis, yet a curator may
be appointed to a person
if
he desires it, provided the facts establish an incapacity to manage
his affairs due to some defect of body or mind
.
(See Ex parte Berman NO: In re Estate
Dhlamini
1954 (2) SA 386
(W)
at 387. See also Ex parte De Villiers and Another
1943
WLD 56
at
58
and Ex
parte Bell
1953 (2) SA 702
(O)
at 703-4, where reference is made to the various Roman-Dutch
authorities pertaining to such a situation.) It is, however,
important to note that in De Villiers' case supra Millin
J at 59, in referring to three earlier decisions,
said it was very
likely that the Court in those last-mentioned cases would have been
unwilling to appoint a curator had
it not appeared that
this was the desire of the person concerned. Furthermore Millin J, in
the case before him, said emphatically
at 59 that he would certainly
not take the management of her money out of the patient's hands were
it not clear that she wished
it. (See also Nkosi v Minister of
Justice
1964 (4) SA 365
(W)
at 367H.)
It
is of course well known that each case must be decided on its own set
of facts, but as a general proposition it can be accepted
that the
Court does not usually interfere to appoint a curator where
the person concerned is compos mentis and
furthermore
actively opposes any such appointment, as is the position in
casu.”
[Underlining
my own]
20. That the requirement
of consent (in the absence of a declaration of inability) forms part
of South African has been established.
For instance, in the matter of
Modiba obo Ruca; in re: Ruca v Road Accident Fund
(1261/2013; 63012/13) [2014] ZAGPPHC 1071 (27 January 2014) it was
stated that:
“
The curator’s
report must deal with all relevant facts that may impact upon the
question whether the patient is of unsound
mind or not and is
therefore of great importance to the court faced with the question
whether the patient should be declared to
be incapable of managing
all or part of his affairs
and be placed under
curatorship”
44. Another
potentially grave problem that may raise its head is the proposal
presently under discussion were to be accepted, is
the
express
disavowal
of any intention to seek a declaration that the
patient is unable to deal with his personal affairs, or is unable to
deal with
funds that are about to be awarded to him. The
proposed trust is paraded as the answer to the problems the patient
is alleged
to experience in dealing with large sums of money…
Whether the trustees are instructed to deal with the funds in a
particular
fashion or for a particular purpose only or not,
without
a declaration of inability to manage these funds or all of his
belongings, a trust can only be created with the patient’s
express prior consent validly given
. Should this
consent later be held to have been of no force and effect the cause
of the patient’s mental impairment,
the consequences may be
dire. It is difficult to discern what benefit the failure to
issue a declaration of inability may
render to the patient, whose
incapacity to deal with funds is the only reason the trust is being
created.”
[Underlining my own]
“
45. The
preferable practice must in the light of the aforegoing
considerations surely be that a patient who suffers from a mental
disability resulting in the inability to manage
all or some
of his own affairs
should be declared to be unable to do
so. Such an order protects the patient and those who interact with
him. It forms the
basis upon which the appointment of a curator
bonis or bonis et personae is justified in law, as the patient’s
fundamental
rights to dignity and freedom to decide how she or he
would prefer to live his or her life are compromised by granting to a
curator
the right to take decisions on behalf of the patient…
These considerations do not necessarily apply in all instances in
which
the patient is able to consent
to the
appointment of a curator bonis as discussed above.”
[Underlining my own]
21. The principles as set
out in the
Ruca
matter are underscored by the
constitutional values of freedom and dignity. As stated in
Barkhuizen v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC) “
Self
autonomy, or the ability to regulate one’s own affairs, even to
one’s own detriment, is the very essence of freedom
and a vital
part of dignity the extent to which the contract was freely and
voluntarily concluded is clearly a vital factor as
it will determine
the weight that should be afforded to the values of freedom and
dignity
”.
22. It is a fundamental
rule of Roman-Dutch law that: “
Without legal authority, no
man should be deprived of the free administration of his own
affairs
.” (Quoted from Sande: “Treatise upon
restraints upon the alienation of things”, Webber’s
translation, part
1 cap 1 sec 1 nr 5)
23. Accordingly, where
adults are concerned, without a finding of an inability to manage his
own affairs, funds can only be protected
with the express consent of
the adult. This naturally assumes that the
curator ad litem
in those instances has properly discharged him or her of their duties
in investigating the competency of the patient.
The Authority of
the
curatrix ad litem
to bind a minor to a trust that will
continue into adulthood:
24. It was submitted by
the Plaintiff that, as the curatrix at litem currently has the
authority to bind M N[...] (by virtue of
his minority), such actions
taken will also bind him once he reaches majority. Counsel for the
Plaintiff referred me to 3 (three)
cases as authority for the
submission that a guardian may bind a minor to a contract that
extends into majority.
25. In
Du Toit v
Lotriet
(1918 OPD 99)
Justice Ward, agreeing with the
majority decision stated:
“
The power given
to guardians in respect of the wards is intended for the protection
of the latter during minority, and, in the absence
of special
circumstances
should not be exercised so as to deprive the
ward of the power to deal freely with his property upon attaining
majority
. Voet lays down that “tutors ought to
regulate their proceedings so that leases granted by them shall
terminate when
their own curatorial administration terminates.”
[Underlining my own]
“
There are many
cases, however, in which a rigid adherence to this Rule would prevent
a minor’s property being let, and it
is to such cases that the
passage from Voet (19, 2, 17) cited during the argument seems to
apply. That passage reads: Pupils
are bound to ratify after
puberty leases made by tutor in good faith and for such a moderate
time as the custom of the distinct
sanctions beyond the period of
puberty.”
26. The majority held
that:
“
Now the rule of
law applicable to a case of this sort is that as a general rule the
power of a guardian to deal with a property
or affairs of his ward is
limited to the period of his guardianship and ceases with the
termination thereof. If, however
an order to proper utilisation
of such property and the beneficial administration of such affairs it
is necessary to enter into
a contract which while commencing during
such guardianship
unavoidably extends to a moderate period
beyond in accordance with the customs of the country… the ward
will be bound by such contract until the termination thereof.”
[Underlining my own]
“
I do not
think that a hard and fast rule can be laid down. Each case
must depend upon its particular circumstances.
In the above
case the court upheld a contract of insurance which imposed
liabilities upon a minor after he obtained his majority”.
(This
is in reference to the matter of
Skead v Colonial Banking and
Trust Co. Ltd
1924 TPD 497
at page 503)
.
The Court upheld a
contract upheld a contract of insurance which imposed liabilities
upon a minor after he obtained his majority.
The present case,
however, goes far beyond that one. The effect of the contract
was to
deprive the ward of the free use of a considerable
portion of his income after he attained majority, it restricted the
enjoyment
of his proprietary rights after he attained majority and I
therefore think the father exceeded his authority as natural guardian
in entering the contract
.”
[Underlining my own]
27. I was furthermore
referred to the matter of
In re: Nooitgadacht, ex parte Wessels
(1902) 23 NLR 81
as well as
Wood v Davies
1934
CPD 250
of which the head note reads:
“
Although as a
general rule the power of a guardian to deal with the property or
affairs of his ward is limited to the period of
his guardianship and
ceases with the termination thereof, no hard and fast rule can be
laid down, and in proper cases a guardian
may be held not to have
exceeded his authority even though he has entered into a contract
which imposes liabilities upon the minor
after he has attained
majority
.”
28. I disagree that these
cases are authority for the authority of a guardian to bind a minor
to a contract that affects him into
the age of majority,
unreservedly. For the minor to be bound, once an adult, the contract
would have had to have been beneficial
and the minor would have had
to have been assisted by the guardian in the conclusion thereof, as
opposed to the guardian acting
on behalf of the minor. It is only
when these requirements are met, that the minor, upon attaining
majority, may ratify the contract.
29. With regards to the
first requirement, it was stated in
Myhill v RAF
(505/2012)
[2013] ZASCA 73
(29 May 2013)
“
The principles
relating to the rescission of a contract concluded on behalf of a
minor are well established and do not need to be
dealt with in any
detail. Suffice it to say that the parties were correctly agreed that
a contract may be set aside under the restitutio
in integrum if it is
shown that it
was prejudicial
to the minor at
the time it was concluded. In that regard, it is necessary to show
that the prejudice suffered was serious or substantial.
As Boberg
states ‘to succeed in a claim for restitution the minor must
show that the transaction against which he or she
objects was
inimical from its inception’.
[Underlining my own]
30. As to the second
requirement, for instance, Christie
The Law of Contract
7
th
Edition 2016 at page 274 states that:
“
This is clearly
the effect of the line of cases in which it has been held that a
guardian’s authority
does not extend
beyond minority, the guardian has no power to bind the minor to
contractual liabilities extending beyond the minor’s coming
of
age. It follows that when the guardian’s ultra vires act
takes the form of
assisting
the minor in
contracting, the minor may ratify the contract on attaining majority…
but where it takes the form of
contracting on the minor’s
behalf
no question of ratification can arise, since the
contract is a nullity.”
[Underlining my own]
31. Interestingly enough,
the footnote pertaining to the “
long line of cases
”
mentions the caselaw referred to by the Plaintiff.
32. In the present
matter, given that the disposal of the award by the Road Accident
Fund is done on the instance of the guardian
(the
curatrix ad
litem
), such a contract would be a nullity and incapable of
ratification by M N[...]. There has been no evidence before Court
that M
N[...] was in any way involved in the decision that his award
should be placed into a trust.
33. It is important to
note that the award from the Road Accident Fund does in fact fall to
the minor and forms part of his estate
– whilst a guardian is
entitled to administer the award, the award still remains the
property of the minor child’s
estate. In, for example
testamentary trusts, the asset belongs to the belongs to the person
who donates it, until such a time it
is donated. Whether or not a
parent decides to leave any assets to their child, is their choice.
Concomitantly, the choice as to
how such assets are to be
administered after their death (in general), also falls to the
parents. In casu, however, the award belongs
to Mr N[...] as of right
and forms part of his estate upon granting of said award. Had he been
an adult, he would have been able
to choose how his estate should
have been administered.
34. Despite my
finding that foundation of the trust to administer the award is not
capable of ratification
in casu
, the question of M N[...]’s
capacity, in any event, to ratify or to consent to the formation of a
trust afresh.
35.
The
mental capacity of M N[...]:
36. At present there are
2 (two) factors which influence M N[...]’s legal capacity
namely his minority and his need of protection
due to his brain
injury.
37. His minority will
fall away in less than a year. His mental disability,
unfortunately, from a reading of the reports,
seems to be a lifelong
impediment. The
curatrix ad litem
during argument
pressed against the declaration of inability on the basis of the
severe impact it would have M N[...]’s day
to day functioning.
She cited, for instance, the fact that he would not be able to open a
bank account unassisted.
I am of the view that these sentiments
rather resort to a finding under Rule 57(1) – where the patient
is declared of unsound
mind.
38. A declaration of
incapability is, however, indeed a great inroad into to personal
liberties of a person and is not one that
should be made lightly.
On the other hand, as previously referred to, a person’s
constitutional right to dispose
of his own affairs as he deems fit
weighs just as heavily.
39. Where the person is
an adult, the protection of funds can be dealt with in a relative
straightforward manner by obtaining his
consent, in view of the fact
that he is regarded as capable of understanding the effect. It
is not unknown for parties to
even consent to the appointment of a
curator bonis
despite no finding of incapability. What
complicates the matter
in casu,
at present, is that M N[...],
even if he was capable of managing his own affairs, cannot consent to
the formation of the Trust,
given his minority. In this regard
his guardian by way of the
curatrix ad litem
can give such
consent. However, once he turns 18, he acquires the rights to
determine how he wishes to manage his own affairs.
At that
stage, his mental capacity to consent, or otherwise, comes into
question. The expert reports provided, unfortunately,
do not
address his capacity save for stating that monies should be
protected. This is not sufficient to endow this Court
with the
authority to deprive him of his future rights of disposal of his
assets as he deems fit.
40. As I have previously
indicated, none of the experts address his capability to manage his
own affairs, save to state that he
needs assistance with managing a
large award. I have noted the submissions by the
curatrix ad litem
that he is not unable to manage his own affairs, save for the
handling of money.
41. Whilst it may be true
that he will struggle with a large award, the same hold stead for a
plethora of uninjured South Africans
who are unable to manage large
sums of money. Cases such as where Lotto money won by an illiterate
person is spent within a few
months on unnecessary luxuries, come to
mind. Would the family of such a person, be entitled to approach the
Court for an order
that the money be placed in trust, despite the
fact that there is no legal impediment to such a winner managing his
own affairs?
The dictum in
Barkhuizen v Napier
(supra)
clearly indicates that it is a person’s constitutional right to
dispose of his assets
even to his own detriment
.
42. On the basis of the
submissions by the curatrix and the expert reports, I cannot make a
finding of incapability against M N[...]
and as such there is no
legal impediment that he suffers from that would give this Court the
authority to oust his right to self-autonomy.
The Proposed Trust
Deed
43. In the matter of
Dube
N. O. v Road Accident Fund
2014 (1) SA 577
(GSJ) at paragraph
26, the Court set out the ideal features for a Trust instrument
executed for the purposes of administering a
minor’s money.
Amongst these is that:
“
If apposite,
the trust should be stated to terminate at an appropriate date, which
should be after the obtaining of his majority
and, in the case of
disability of the child, should take account of whether such
disability is likely to be permanent or temporary
and the nature
thereof.”
44. The provisions of the
proposed Trust deed for M N[...] named the M G N[...] Trust are
telling:
44.1
Section 4 thereof refers to the transferral of the Trust assets at
the
death of M N[...].
44.2
Section 5 refers to the Trust maintaining M N[...] mentally and
physically,
being able to send him overseas for medical advice to
provide accommodation for a caretaker or nurse if necessary.
44.3
Section 13 thereof states that it requires and application
to the
High Court to terminate or dissolve the Trust prior to the death of M
N[...].
44.4
The powers of the Trustee are very broad and include
inter alia
the ability to purchase, sell or hire purchase assets, to acquire
money through loans, to encumber the assets of the Trust and to
perform all acts on behalf of the Trust.
44.5
More worrying, the object of the Trust gives the Trustee
an absolute
discretion (Section 5.4) to do anything in his discretion that he
deems necessary for the wellbeing of M N[...].
35 From
the aforementioned it can be gleaned that the proposed Trust takes
complete control over the award made
to M N[...] and provides an
almost unfeterred discretion to the Trustees. This is typically
a Trust that would be necessary,
for instance, for a person who is
completely incapable of managing his affairs. Save for his
current incapacity due to minority,
there is no such finding against
M N[...] that would affect him upon attaining majority.
36 I am
of the view that this particular Trust goes further than “assistance”
and is in fact complete
control in managing his money. The
inroads that are made on M N[...]’s ability to manage his
affairs are severe, with
specific reference to the Trust alone.
37 From
a reading of the wording, this appears to be what is called an
“Ownership” or “Discretionary”
trust; one
where the assets, liabilities, right and duties relating to the
trust, vest within the trustees alone. Beneficiaries
in such a trust
have no claim on trust property as they do not have ownership or a
vested interest in such a trust, until such
it is allocated to them
in terms of the trust deed. As such they have a mere expectation of
benefit in the future. They have a
personal right as opposed to a
real right as to the trust property. However, this is not the
only form a trust can take –
for instance, in so called
“bewind” trusts, ownership vests in the beneficiary and
the trust is merely administered
by the trustees. (See JG
Vosser:
Trust Administration in South Africa
2020 Edition
pages 42 and 43)
38
Whilst it has become practice in these types of matters to create a
discretionary trust, the reasoning for
the specific type of trust in
relation to the facts of the case needs to be investigated and
motivated by the curatrix
Finding
39
Whilst a minor, the curatrix ad litem, has the authority to bind M
N[...] to a contract and to manage his estate.
However, whether or
not that contract will remain binding after age of majority depends
on the requirements as set out in paragraph
28 supra.
40 With
regards to the whether the proposed trust is beneficial, it is
accepted that, for the period of minority
left, it would be. However,
as I have indicated above, once M N[...] attains majority, it would
make grave inroads into his “
enjoyment of his proprietary
rights after he attained majority”
(See: Lotriet supra),
nor does it “
moderately extend
” for a period into
his majority.
41 The
issue of whether or not M N[...] can ratify the trust upon attaining
majority, depends on whether he had
consented to the formation of the
trust with the assistance of his curatrix ad litem/ guardian or
whether his award was deposited
thereinto on the sole behest of his
guardian. There is no indication that he was consulted in this regard
or voiced any opinion.
He is […]years old, near the age of
majority and, had he been part of the decision to administer his
award via trust, would
presumably have been bound to ratify such
terms when he reached majority -unless he could prove that the terms
were prejudicial.
I have previously indicated that the terms of
the proposed trust deed have the effect of depriving M N[...], once
he is of
age, of any say in the administration of his award and gives
very broad discretions to the trustee. The determination of
prejudice,
in light of my finding, is irrelevant for the present
purposes, however. It is evident that M N[...] is not involved in the
decision
to place the award in a trust and is therefore not bound to
ratify it once he attains majority.
42 No
finding having been made against him in terms of his ability to
manage his own affairs, the Court has no
authority to force him
consent to the formation of a trust once he reached the age of
majority. There is however sufficient evidence
to find that, should
he so wish, the necessity of such a trust was occasioned by the
collision and the sequalae he suffered from
as a result.
43 In
making the order below, I am, however guided by section 28 of the
Constitution which states that a child's
interests are the most
important consideration in any matter concerning the child.
44 In
S
v M
(Centre for Child Law Amicus Curiae)
2007 (12) BCLR 1312
(CC)
at paragraph 24 the Constitutional Court held as follows:
‘
[T]his court
has recognised that it is precisely the contextual nature and
inherent flexibility of section 28 that constitutes the
source of its
strength. …..
Viewed in this light,
indeterminacy of outcome is not a weakness. A truly principle led
child-centred approach requires a close
and individualised
examination of the precise real-life situation of the particular
child involved. To apply a pre- determined
formula for the sake of
certainty irrespective of the circumstances would in fact be contra
to the best interests of the child
concerned.’
45 In
view of the aforementioned, I am of the view that the current
proposed trust should be amended to disband
within 6 months after M
N[...] reaching the age of majority. The extended period provides a
reasonable timeframe within which Ms
Van Rooyen, as curatrix ad litem
can file a follow up report indicating whether, now that he is a
major, Mr N[...] (as he will
be then) is capable of managing his
affairs. Should such a finding be made, but it still be submitted
that he merely requires assistance
due to his cognitive deficits, Mr
N[...] may consent to the formation of another trust, the cost of
which the Defendant will be
liable for (as the need for said trust
stems from the injuries sustained in the collision).
46 The
following order is made:
1.
The defendant is ordered to pay to the plaintiff, in her
representative capacity as curatrix
ad litem, for the benefit of M G
N[...] (born […]), R3,666,088.00 (THREE MILLION SIX HUNDRED
AND SIXTY SIX THOUSAND AND
EIGHTY EIGHT RAND) in full and final
settlement of the claim.
2.
It is noted that the payment in paragraph 1 and the costs will be
made within 180 (One Hundred
and Eighty) days after settlement or
taxation.
3.
The RAF’s link number is [….]; Claim number: […].
4.
The defendant is ordered to furnish to the plaintiff, for the benefit
of M G N[...] (born
[…]) an undertaking in terms of section
17(4)(a) of Act 56 of 1996 in respect of future accommodation of the
plaintiff in
a hospital or nursing home for treatment of or rendering
of a service or supplying of goods to M[…], to compensate the
plaintiff
in respect of the said costs after the costs have been
incurred and on tendering of proof thereof, arising from the
collision which
occurred on 14 February 2010.
5.
The defendant is ordered to pay the plaintiff’s costs the
action, such costs to include
a. The
costs of counsel;
b. The
reasonable taxable fees of:
i. Dr J
J du Plessis, neurosurgeon;
ii.
Corlien MacDonald, occupational therapist;
iii. Dr
R L Dippenaar, ophthalmic surgeon;
iv. Dr
V M Close, orthopaedic surgeon;
v.
Dr D A Shevel, psychiatrist;
vi. Dr
Louise Olivier, clinical neuropsychologist;
vii. Dr
Dries Schreuder, industrial psychologist;
viii.
The costs of obtaining all actuarial reports from the actuaries 3One
Consulting Actuaries;
c. The
reasonable costs for the drafting of the Trust Deed and registration
of the M GI N[...] TRUST with the
Master of the High Court referred
to hereunder;
d. The
further costs of the curatrix ad litem, including the costs all
reports already furnished and any further
reports and investigations
or consultations as ordered below in paragraph 5(g), as well as her
attending the trial on 13 October
2020.
e. The
amount in paragraph 1 and the costs are to be paid into the trust
account of Messrs Marais Basson as follows:
Bank: Standard Bank
Account holder: Marais Basson Incorporated Account number: [….]
Branch code: 052750
f.
After deduction of agreed/attorney and client fees due to the
plaintiff’s attorney and their correspondent,
and after
deduction of disbursements (including counsel’s fees), the net
amount of the award is to be paid to into a trust
to be formed for
the benefit of M G N[...].
i. The
Trust will stipulate that it will be disbanded 6 months after M G
N[...] attains majority.
g. The
curatrix ad litem shall file a further report, following
consultations with inter alia, Mr N[...] and the
relevant experts
upon the attainment of majority by M G N[...] indicating:
i.
Whether M G N[...] is capable of managing his affairs.
ii. If
he is found incapable, how his award is to be protected and any other
recommendations to safeguard his
interests.
iii. If
such safeguard recommendation is made, what type of trust instrument
should be used to cater for the specific
needs of M G N[...]
iv. If
he is not found to be incapable, but consents to the formation of a
trust on terms that he agrees with,
the Defendant shall be liable for
the costs of the formation and administration of the trust.
h. The
plaintiff will furnish the defendant with at least 14 (FOURTEEN) days
written notice of taxation.
K STRYDOM
ACTING JUDGE OF THE
HIGH COURT
OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Heard on: 19 April
2021
Judgement delivered:
Appearances:
For the Plaintiff:
Adv Z Marx du Plessis
Instructed by:
Marias Basson Inc.
Tel: 012 809 1361
Ref: Korr/ CP/al/MA.3384
C/O Jeanette Venter Cost
Consultants CC
346 Vista Avenue
Fearie Glen
For the Defendant: The
Road Accident Fund
Instructed by:
Claims handler- Yazeed Samodien
yazeeds@raf.co.za
Senior claims handler:
Gavin Wiid
gavinw@raf.co.za
Tel: 012 408 3322