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[2021] ZAGPJHC 478
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April on behalf of a Minor v Road Accident Fund (30703/18) [2021] ZAGPJHC 478 (29 September 2021)
SAFLII
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personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 30703/18
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
In
the matter between:
ALENOURE
CLAUDETTE APRIL obo a MINOR
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
Date
of hearing:
30
August 2021- In a ‘virtual hearing’ during a
videoconference on Microsoft Teams digital platform.
Date
of Judgment:
29 September
2021
This
judgment is deemed to have been handed down electronically by
circulation to the parties representatives via email and uploaded
to
caselines.
JUDGMENT
GRAF
AJ
INTRODUCTION
[1]
The plaintiff’s claim for damages is on behalf of a minor male
child who was
involved in a motor vehicle collision on the 19
th
of October 2016 and on Gordon Road, Bergbron, Roodepoort. The minor
child was 8 years, 8 months old at the time of the collision.
He is
currently 13 years old.
[2]
The plaintiff pleaded that a motor vehicle with an unknown
registration number, driven
by an unknown driver (‘the insured
driver’) collided with the minor child, who was a pedestrian at
the time. The minor
child sustained serious injuries as a result of
the collision, which was caused by the sole negligence of the insured
driver.
[3]
According to the plaintiff the defendant is liable to compensate the
plaintiff in
the amount of R3 588 560-00, which includes
general damages, future loss of earnings and future hospital and
medical
expenses.
[4]
The defendant entered an appearance to defend and filed a plea, but
at some stage
the attorneys of record for the defendant withdrew and
no new attorneys were appointed. On 22 July 2021 the defendant’s
defence
was struck out. It is on that basis that the plaintiff
proceeded with an application for default judgment.
[5]
The plaintiff did not present any
viva voce
evidence, but
relied on an affidavit from the minor’s father and numerous
affidavits, accompanied by reports, compiled by
expert witnesses.
[6]
The court is now called upon to determine the following issues:
[6.1] Was the
collision caused as a result of the negligence of the insured driver?
[6.2] If so, did
the minor child sustain any injuries as a result of the collision?
[6.3] If so, how
should the child be compensated for these injuries? This question
should be decided with reference to the
following heads of damages:
Future
loss of earnings.
General
damages.
Future
hospital and medical expenses.
[7]
I will proceed to deal with these issues
seriatim
.
NEGLIGENCE
OF THE INSURED DRIVER
[8]
In regards to the merits of the matter the plaintiff relied on the
sworn statement
of A[....] E[....] (‘E[....]’), the
minor’s father. E[....] was informed that his son was knocked
over by a 4x4
with a trailer. Upon his arrival at the scene he found
that the driver of the 4x4 had left after the collision. The minor
was unconscious
and emergency medical personnel assisted him. The
minor was rushed to hospital.
[9]
E[....] provided a sketch plan of the scene. The defendant admitted
the accident report
that was compiled at the scene. The insured
driver did not provide any version, as he failed to stop at the
accident scene.
[10]
It was argued on behalf of the plaintiff that there was a rebuttable
presumption that the minor
child was
doli
and
culpae
incapax
,
and that, due to the failure of the defendant to rebut the
presumption, the defendant should be held 100% liable for the
plaintiff’s
proven damages. Counsel referred me to the
following passage in Cooper Delictual Liability in Motor Law
[1]
:
‘
Jansen
JA at 399G-H held that there is a rebuttable presumption that an
infantia maior (a child between the age of 7 years and puberty)
is
doli and culpae incapax; accordingly, that a claimant who seeks to
hold an infantia maior liable in delict must prove the child’s
accountability’.
[11]
The above principle was confirmed by the SCA in
Eskom
Holdings Ltd v Hendricks
[2]
where the following was stated:
‘
It
was established in the evidence that at the time of the incident
Jacques was at primary school in grade five and that he must
have
been taught the dangers of electricity. But there was little, if any
cross-examination of Jacques himself or his parents to
determine his
intellectual and emotional maturity at the time, nor was any evidence
led to rebut the inference of childish impulsive
behaviour that arose
from the conduct or, for that matter, to assist in the determination
of the issue of maturity. In all the
circumstances, I am unpersuaded
that Eskom succeeded in rebutting the presumption that Jacques was
culpae incapax at the time of
the incident’.
[12]
In as far as the duty that rests on a driver when children are near
the road is concerned, counsel
referred me to
Jones
N.O v Santam Bpk
[3]
where it was said that:
‘
In
the present case the driver’s negligence was substantial. His
conduct deviated substantially from the norm of the bonus
paterfamilias. He was aware of the presence of children yet he did
not keep them properly under observation. The law requires a
high
standard of alertness and care from a driver of a vehicle who sees
children upon or near the roadway’.
[13]
In the matter presently before me the minor was 8 years, 8 months old
at the time of the collision.
The insured driver did not stop at the
scene and no version whatsoever was obtained from him. The defendant
failed to place any
facts before this court to rebut the presumption
that the minor was culpae incapax. Taking into account the duty of
care expected
of a reasonable driver and the defendant’s
failure to lead any evidence to the contrary, it is accepted that the
collision
was caused as a result of the insured driver’s
negligence. The defendant is accordingly 100% liable for such damages
as may
be proved by the plaintiff.
INJURIES
SUSTAINED BY THE CHILD
[14]
The plaintiff submitted the reports, confirmed by way of affidavit,
from Dr HET van den Bout
(orthopaedic surgeon), Dr PH Kritzinger
(neurologist), Dr Jonathan Levin (ophthalmologist), Rosalind Macnab
(educational psychologist),
Marina Genis (clinical psychologist) and
Desiree Olivier (occupational therapist) to prove the injuries
sustained by the minor
as a result of the collision.
[15]
The plaintiff’s orthopaedic surgeon, Dr HET van den Bout ,
recorded that the minor sustained
serious injuries, which included
evidence of a head injury with abrasions on the face and loss of
consciousness, neck pain, a right
distal radius and ulna fracture, an
injury of the right ulnar nerve, a left clavicle fracture, a pelvis
fracture and multiple abrasions.
As result of the injuries the minor
was taken to theatre for a closed reduction and internal fixation of
the right distal fracture.
His right arm was splinted and he was
given a sling for the left arm. Plaster of paris was applied. The
plaster of paris and k-wires
were later removed and the minor was
given analgesia. The pelvic fracture was treated with bed rest and he
received physiotherapy.
In February 2017 an EMG was done which
revealed an injury of the right ulnar nerve, with prolonged latency
and decreased amplitude
and an unstimulatable sensory nerve
conduction study. On examination the minor presented with faint
scarring of the forehead, two
scars on the right wrist, two scars on
the right forearm, a scar on the left forearm. The minor still
experienced tenderness, discomfort
and pain at the time of
examination. Dr van den Bout concluded that the minor passed the
narrative test and that he qualified for
general damages under a
serious long-term impairment or loss of body function due to the
injury of his dominant right upper limb,
with residual pain, weakness
and the functional impairment, as well as for the pelvic fracture,
with possible involvement of the
left SI joint.
[16]
According to Dr PH Kritzinger, the plaintiff’s neurologist, the
minor sustained a mild
closed head injury as a result of the
collision. He has a decrease in cognitive functioning and general
concentration ability and
a decrease in his reading ability. In
addition, the minor suffers from chronic daily headaches. Dr
Kritzinger opined that the head
injury should not give rise to any
long-term complications, but that about 5% to 10% of young children
show attention deficits
and other learning disabilities after a mild
closed heard injury and loss of consciousness. He could not exclude
the possibility
that the minor suffered some intellectual
deterioration because of the head injury and the white matter lesions
of the brain, not
indicated on the CT scan of the brain.
[17]
The essence of Dr Jonathan Levin, the ophthalmologist’s report
is that he could not find
any evidence of injury to the minor’s
eyes, visual pathways and brain visual cortex. He detected
astigmatism which had no
direct relationship with the accident and
was most likely pre-existing.
[18]
The plaintiff’s educational psychologist, Rosalind Macnab,
recorded that the minor was found to have difficulties consistent
with a mild head injury. The minor presented with significant
neurocognitive deficits which will inevitably impact on his ability
to learn and his academic progress. She recommended that the minor be
placed in a special needs school. She opined that he will
be unable
to actualize his pre-morbid potential due to his apparent
neurocognitive and scholastic weaknesses, in combination with
his
impaired post-accident IQ. The IQ test results suggested that the
minor’s pre-accident intellectual ability was within
the below
average range. However, Macnab was of the opinion that the minor
would pre-accident have been able to attain a Grade
12, albeit a
low-level practical matric, but that due to his current
neurocognitive difficulties he will not matriculate.
[19]
According to Marina Genis, the plaintiff’s clinical
psychologist, the minor was experiencing
depressive symptoms,
symptoms of Major depressive Disorder and that he suffered from
Post-Traumatic Stress Disorder. The minor’s
cognitive deficits
and psychological symptoms were likely to lead to a decrease in his
academic performance, when compared to his
premorbid level of
academic potential. She was of the view that the minor’s
psychological symptoms could improve with recommended
treatment but
that the ongoing physical limitations and pain could undermine such
improvement.
[20]
Desiree Oliver, the plaintiff’s occupational therapist,
recorded that the minor was using
his non-dominant left hand; he had
difficulty with bilateral upper limb task; difficulty to stand long
or walk far due to the pain
in his left lower limb; and he had
difficulty in finding a comfortable position to sleep in due to the
pain. The minor presented
with some cognitive, psychological and
visual-perceptual fallout. Olivier opined that as a result of the
injuries sustained, and
considering the involvement of the minor’s
dominant hand, he might require suitable workplace accommodations.
[21]
I have carefully scrutinised the abovementioned reports and I am
satisfied with the cogency and
veracity of these reports. It is clear
that the minor sustained injuries as a result of the collision and
what remains to be considered
is the issue of how he should be
compensated as a result of these injuries.
QUANTUM
OF DAMAGES
[22]
As previously alluded to the determination of the quantum of damages
will be dealt with under
the headings of future loss of earnings,
general damages and future hospital and medical expenses.
Future
loss of earnings
[23]
The plaintiff relied on the report, as confirmed via affidavit, of an
industrial psychologist,
Nicola Vermooten (‘Vermooten’),
and an actuarial report compiled by R. Immerman (‘Immerman’)
from Gerard
Jacobson Consulting Actuaries in support of the claim for
future loss of earnings.
[24]
Vermooten had regard to the reports compiled by the plaintiff’s
other experts, including
the educational psychologist, in her
assessment of the minor’s vocational potential. She concluded
that based on the minor’s
young age two pre- morbid career
progression scenarios were probable. Both scenarios are based on the
assumption that, but for
the accident, the minor would have completed
Grade 12. In scenario 1 the minor would have entered into and
progressed within the
formal labour market. In scenario 2 the minor
would have entered into and progressed within the informal labour
market. In considering
the minor’s post-morbid career
progression Vermooten opined that his pre-morbid educational and
career scenarios would not
prevail. It is unlikely that the minor
will matriculate. He will no longer be suited to semi-skilled
positions in the formal sector,
only to unskilled and lower
semi-skilled positions in the informal sector.
[25]
Immerman based his actuarial calculations of the minor’s loss
of future earnings on Vermooten’s
postulations. He determined
the value of the minor’s projected future income, but for the
accident, on the basis of scenario
1, as R 3 771 849-00.
The value of the projected future income, but for the accident, on
the basis of scenario 2 is R
2 473 040-00. The value of the
minor’s projected future income, having regard to the accident,
was determined as
R1 305 155-00. After applying a 20%
contingency deduction to the pre-morbid income and a 30% contingency
deduction to
the post-morbid income Immerman calculated the net
future loss of income on the basis of scenario 1 at R 2 103 871-00.
Applying the same contingency deductions in respect of scenario 2 the
net future loss of income amounts to R 1 064 824-00.
[26]
Counsel for the plaintiff submitted that a contingency deduction of
25% in respect of the pre-morbid
income and 50% in respect of the
post-morbid income would be more suitable under the circumstances of
this matter. In view of the
fact that both scenarios catered for are
probable, counsel proposed that the median between the two scenarios
be awarded.
[27]
It is trite that the determination of a suitable contingency
deduction falls within the discretion
of the court. In
Southern
Insurance Association Ltd v Bailey
[4]
the advantage of applying actuarial calculations to assist in this
task was emphasised. It was stated that:
‘
Any
enquiry
into
damages for loss of earning capacity is of its nature speculative,
because it involves a prediction as to the future without
the benefit
of crystal balls, soothsayers, augers or oracles. All that the court
can do is to make an estimate, which is often
a very rough estimate,
of the present value of a loss. It has open to it, two possible
approaches. One is for the Judge to make
a round estimate on an
amount which seems to him to be fair and reasonable. That is entirely
a matter of guesswork, a blind plunge
into the unknown. The other is
to try and make an assessment, by way of mathematical calculations on
the basis of assumptions resting
on the evidence. The validity of
this approach depends of course upon the soundness of the assumptions
and these may vary from
the strongly probable to the speculative. It
is manifest that either approach involves guesswork to a greater or
lesser extent.
But the court cannot for this reason adopt a
non-possumus
attitude and make no award’
.
[28]
It was highlighted, however, that the trial judge is not ‘tied
down by inexorable actuarial
calculations’ and that he (or she)
has a ‘large discretion to award what he considers right’.
In exercising that
discretion, a discount should be made for
‘contingencies’ or the ‘vicissitudes of life’.
These include
possibilities such as the plaintiff experiencing
periods of unemployment or having less than a ‘normal
expectation of life’.
The amount of discount may vary,
depending on the facts of the case
[5]
.
[29]
The learned author Koch
[6]
has
suggested that as a general guideline, a sliding scale of 0,5% per
year over which the applicable income must be calculated,
be applied.
For example, 25% for a child, 20% for a youth and 10% in middle age.
[30]
The child is currently 13 years old. Having regard to his specific
capabilities, coupled with
his below average scholastic performance,
even before the accident, I am of the view that a 25% pre-morbid
contingency deduction
will be fair and reasonable.
[31]
I cannot find any reason for the suggested post-morbid contingency
deduction of 50%. I believe
that a 35% post-morbid contingency
deduction is justified in the circumstances of this matter.
[32]
The resultant calculation will therefore be as follows:
o
Scenario 1
:
Pre-morbid income at R 3 771 849-00 less 25% = R
2 828 886-75.
Post-morbid
income at R1 305 155-00 less 35% = R 848 350-75.
Loss
of income (R 2 828 886-75 less R 848 350-75) = R
1 980 536-00.
o
Scenario 2
:
Pre-morbid income at R 2 473 040-00 less 25% = R
1 854 780-00.
Post-morbid
income at R1 305 155-00 less 35% = R 848 350-75.
Loss
of income (R 1 854 780-00 less R 848 350-75 = R
1 006 429-25.
[33]
As both scenarios are equally probable, I am of the view that the
average of R 1 980 536-00
and R 1 006 429-25,
which amounts to R 1 493 483-00 is fair and reasonable
compensation for the plaintiff in
respect of loss of income.
General
damages
[34]
The injuries sustained by the minor and the
sequelae
thereof
have been discussed above. The veracity of Dr van den Bout’s
serious injury assessment has already been accepted,
in the absence
of any evidence to the contrary. The minor experienced, not only
physical pain and functional impairment as a result
of the
orthopaedic injuries, but developed cognitive difficulties and
psychological symptoms, which negatively affect his interpersonal
relationships and general quality of life.
[35]
The plaintiff has claimed the amount of R500 000-00 for general
damages. Counsel referred
me to past awards that were made in
comparative cases. For example, in the matter of
D
v Road Accident Fund
[7]
the plaintiff, who had sustained a mild concussive brain injury and
had been left with relative deficits in certain areas of cognitive
functioning and was suffering from situational anxiety and residual
emotional symptoms, was awarded an amount of R600 000-00
(which
translate to a current value of R688 557-00).
[36]
In
Aeschliman
v Road Accident Fund
[8]
a female student, who had sustained a compound injury to the right
knee, laceration of the upper lip, mild concussion and blunt
trauma
to the right shoulder, was awarded an amount of R300 000-00
(which translates to a current value of R534 000-00).
[37]
In
Kgopane
v Road Accident Fund
[9]
the plaintiff sustained a pelvic fracture, fracture of the right
superior rami, left interior ramus fracture, chest contusion,
injury
to her right foot and soft tissue injury to her neck and shoulder. In
addition to the physical injuries, she suffered from
moderate
depression and post-traumatic stress disorder after the accident. An
award of R600 00-00 (which currently translates to
R696 147-00)
was made.
[38]
I have considered the cases that counsel referred me to, while
bearing in mind that the facts
of those matters differed from the
facts of the matter presently before me. I have endeavoured to
determine an amount that will
be fair and adequate compensation for
the injuries sustained by the minor.
[39]
In my view the amount of R500 000-00 for general damages is
justified under the circumstances.
Future
hospital and medical expenses
[40]
The plaintiff has claimed an amount of R884 689-00 for the
minor’s future hospital
and medical expenses. The amount is
based on actuarial calculations. The court noticed that this amount
included ophthalmologist
expenses, even though the minor’s
problems with eyesight was according to the experts most likely
pre-existing and not caused
by the accident. In supplementary heads
of arguments counsel suggested that the amount of R 198 698-00
be awarded, which amount
excludes the ophthalmologist expenses.
[41]
Counsel for the plaintiff contended that the court should make a lump
sum award, as the court was unable to direct the defendant
to furnish
an undertaking in terms of section 17(4)(a) of the Road Accident Fund
Act
[10]
, if such undertaking
was not tendered. Counsel substantiated this argument with reference
to the matters of
Marine
& Trade Insurance Co Ltd v Katz NO
[11]
and
Coetzee
v Guardian National Insurance Co Ltd
[12]
where undertakings in terms of section 21(1C) of the Compulsory Motor
Vehicle Insurance Act
[13]
were
at issue.
[42]
Section 17(4)(a) of the Road Accident Fund Act
[14]
,
which repealed the previous legislation, reads as follows:
‘
Where
a claim for compensation under subsection (1) includes a claim for
the- costs of the future accommodation of any person in
a hospital or
nursing home or treatment of or rendering of a service or supplying
of goods to him or her, the Fund or an agent
shall be entitled, after
furnishing the third party concerned with an undertaking to that
effect
or a competent court has directed
the Fund or the agent to furnish such undertaking
,
to compensate the third party in respect of the said costs after the
costs have been incurred and on proof thereof ; or the provider
of
such service or treatment directly, notwithstanding section 19(c) or
(d),in accordance with the tariff contemplated in subsection
(4B);…’.(my emphasis).
[43]
From a plain reading of the wording of the section it would appear
that the Fund can furnish
a third party with such an undertaking,
alternatively the court can direct the furnishing of the undertaking.
The court’s
power to direct the furnishing of the undertaking
is not necessarily dependent on the Fund’s willingness to
tender the undertaking.
[44]
I have also considered numerous decisions of this division where the
furnishing of undertakings
were ordered, despite the fact that the
matters proceeded on a default basis and without the input of the
Road Accident Fund.
[15]
[45]
As upper guardian of all minors the court has to make a decision that
will be in the best interest
of the minor. In my view the minor will
benefit more from the furnishing of an undertaking, than from the
allocation of a lump
sum, which may prove to be wholly inadequate to
cover his future medical and hospital expenses.
ORDER
[46]
The following order is made:
1.1
The defendant is directed to pay to the plaintiff the sum of
R1 993
483-00 (ONE MILLION NINE HUNDRED AND NINETY-THREE THOUSAND FOUR
HUNDRED AND EIGHTY-THREE RAND)
in one interest free instalment
within 180 (one hundred and eighty) days of date of service of this
order on the defendant for:
a)
Future loss of income
R1 493 483-00
b)
General damages
R 500 000-00
1.2 The
said payment must be made in the following bank account:
Name of account
holder: SONYA
MEISTRE ATTORNEYS
Bank
name:
STANDARD BANK
Branch name and
code:
ALBERTON (01234245)
Account
number:
[....]
Type of
account:
Trust Account
2.
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, Act 56 of 1996, wherein the Defendant undertakes to pay the
costs of future accommodation
of the minor in a hospital or a nursing
home or treatment of or rendering of a service or supplying of goods
to the minor to compensate
the Plaintiff in respect of
100%
of
the said costs after the costs have been incurred and on proof
thereof, pursuant to injuries sustained by the minor in a motor
vehicle collision which occurred on 19 October 2016.
3.1 The
defendant pays the plaintiff’s taxed or agreed party and party
costs on the High Court scale up
to the date hereof, including the
costs incurred to obtain payment of same.
3.2
Such costs to include all travelling costs, including counsel’s
costs, on the prescribed AA tariffs.
3.3 The
plaintiff will serve Notice of Taxation on the defendant.
3.4 The
defendant will be allowed 14 (fourteen) days after date of service of
the taxed bill on the defendant
for payment of the taxed amount.
3.5 If
no payment has been made within 14 (fourteen) days as mentioned
above, the agreed amount of costs or allocatur
will bear interest at
the statutory rate of 7.00% per annum from the date of agreement or
date of allocatur as the case may be
up to the date of final payment.
4.
The aforementioned costs, as far as experts and counsel are
concerned, shall further include
and be limited to the following:
4.1
The reasonable taxed or agreed reservation, consultation and
preparation fees, if any, and
cost of the reports of:
4.1.1
Dr HET van den Bout (Orthopaedic Surgeon);
4.1.2
Dr HET van den Bout (RAF 4 form);
4.1.3
Marina Genis (Clinical Psychologist);
4.1.4
Dr PH Kritzinger (Neurologist);
4.1.5
Dr J Levin (Ophthalmologist);
4.1.6
Rosalind Macnab (Educational Psychologist);
4.1.7
D Olivier (Occupational Therapist);
4.1.8
Jacobson Talmud Consulting (Industrial Psychologist);
4.1.9
Gerard Jacobson (Actuary).
4.2
The reasonable taxed or agreed fees of senior-junior counsel;
5.
The attorneys for the plaintiffs (Sonya Meistre Attorneys) are
ordered:
5.1
to cause a trust (“the Trust”) to be established within
three months of this
order in accordance with the provisions of the
Trust Property Control Act, Act 57 of 1998 (as amended) in respect of
the minor;
and
5.2
to pay all monies held in trust by them for the benefit of the minor
to the Trust.
6.
The trust is to be created for the benefit of the minor, and must
provide as follows:
6.1
that the minor is to be the sole beneficiary of the trust;
6.2
for the nomination of
LEANE EDWARDS
, an employee of Absa Trust
Limited, and as such a nominee of Absa Trust, as the first trustee;
6.3
for the nomination of
JEAN VOSLOO
an executive of Liberty as
the second trustee;
6.4
for the nomination of a third trustee in the discretion of the
trustees as set out in paragraph
6.2 and 6.3,
supra
; provided
that the trust shall consists of a minimum of three trustees at all
relevant times;
6.5
that the ownership of the trust property vest in the trustee(s) of
the trust in their capacity
as trustees;
6.6
that the powers of the trustee(s) shall specifically include the
power to make payment from
the capital and income for the reasonable
maintenance of the minor, or for any other purpose which the
trustee(s) may decide to
be in the minor’s interest, and if the
income is not sufficient for the aforesaid purpose, the
trustees
shall have the power, for the purposes of this trust, in their sole
and absolute discretion, to:
6.6.1
acquire any shares, unit trusts, debentures, stocks, negotiable
instruments, mortgage bonds, notarial bonds,
securities, certificates
and any moveable 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;
6.6.2
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 funds;
6.6.3
borrow money;
6.6.4
pledge any trust assets, to encumber such assets with mortgage bonds
or notarial bonds to utilize same as
security in any manner
whatsoever;
6.6.5
institute or defend any legal proceedings or otherwise to take any
other steps in any court of law or other
tribunal and to subject
controversies and disagreements to arbitration;
6.6.6
to call up and/or collect any amounts that may from time to time
become due to the trust fund;
6.6.7
settle or waive any claim in favour of the trust;
6.6.8
exercise any option and to accept and exercise any rights;
6.6.9
exercise any rights or to incur any obligation in with any shares,
stocks, debentures, mortgage bonds or
other securities or investments
held by this trust;
6.6.10 open accounts at
any bank or other financial institution and to manage such accounts
and if necessary to overdraw such account;
6.6.11 draw any cheque or
promissory note, to execute or endorse same;
6.6.12 take advice from
any attorney or advocate or any other expert for the account of the
relevant trust account;
6.6.13 lodge and prove
claims against companies in liquidation or under judicial management
and against insolvent or deceased estates;
6.6.14 appoint
professional or other persons on 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
or the entirety of the funds of the trust
and to remunerate such
persons for their services out of the funds of the trust;
6.6.15 form any company
and to hold any interest in any company and to form any other trusts,
to hold an interest in any other trusts
or partnership or undertaking
for the purposes of this trust or in the interest of any beneficiary;
6.6.16 amalgamate with
any other trust with the same or similar aims as this trust;
6.6.17 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;
6.6.18 accept any
disposal in favour of this trust and to comply with any conditions
regarding such a disposal; and
6.6.19 in general do all
things and to sign all documents required to give effect to the aims
of this trust.
6.7
that 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;
6.8
that in the event of the minor’s marriage, his estate be
excluded from any community
of property;
6.9
the suspension of the minor’s contingent rights in the event of
cession, attachment
or insolvency, prior to the distribution or
payment thereof by the trustee(s) to the minor;
6.10
that the amendment of the trust instrument be subject to the leave of
this Honourable Court;
6.11
the termination of the trust upon the death of the minor, in which
event the trust assets shall pass
to the estate of the minor;
6.12
that the trust property and the administration thereof be subject to
an annual audit; and
6.13
that the trust shall terminate when the minor reaches the age of 21,
whereupon the trust property shall
pass to the minor.
7.
The powers of the
trustee(s)
, as set out in paragraphs 6.6.1
to 6.6.19 are to be exercised subject to the approval of the Master
of the High Court;
8.
The first
trustee
is required to furnish security to the
satisfaction of the Master of the High Court.
9.
The Master of the High Court has the discretion to be authorised to
appoint an alternative
person as
trustee(s)
, should the
appointed
trustee(s)
refuse or be unable to fulfill his/her
obligations as
trustee(s)
.
10. The
defendant pays the costs of the appointment of the
trustee(s)
as
well as the costs of the administration of the estate of the minor by
the trustee(s) at each financial year end and subject to
section 84
of the Administration of Estates Act, Act 66 of 1965.
A
GRAF
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Date
of Hearing
:
30 August 2021
Date
of Judgment
:
29 September 2021
Appearance
for the Plaintiff
:
Adv L Swart
liezle.swart@vodamail.co.za
Instructed
by Chante Wentzel
chante@smainc.co.za
Appearance
for the Defendant
:
No appearance
[1]
1996
at 66
[2]
2005
(5) SA 503
(SCA) at [513 G-I
[3]
1965
(2) SA 542
(A) at 544 G-H
[4]
1984
(1) SA 98
(A) at 113H- 114E
[5]
Sothern
Insurance Association Ltd (note 4) at 116G-H.
[6]
Robert J Koch, The Quantum Yearbook, 2009, p.100
[7]
(15/24390) [2017] ZAGPJHC 61 (3 March 2017)
[8]
2009 (6) QOD E7-1 (ECP)
[9]
(43235/2014) [2016] ZAGPPHC 872 (22 September 2016)
[10]
Act
56 of 1996 as amended
[11]
1979
(4) SA 961 (A)
[12]
1993
(3) SA 388
(W)
[13]
Act
56 of 1972
[14]
Act
56 of 1996 as amended
[15]
See
for example Storm v Road Accident Fund (17949/2018) [2021] ZAGPJHC
12 (29 January 2021); Sayed NO v Road Accident Fund; Olyn
v Road
Accident Fund; Mosia v Road Accident Fund; Tsotetsi v Road Accident
Fund; Matholo v Road Accident Fund; Shongwe v Road
Accident Fund;
Harmse v Road Accident Fund (50887/18; 38403/17; 33821/17; 35970/18;
49128/18; 2316/14; 447/16) [2021] ZAGPPHC
76;
[2021] 2 All SA 613
(GP);
2021 (3) SA 538
(GP) (4 March 2021) and Samkelisiwe Ngenge n
Road Accident Fund case no 70707/2018, Gauteng Division Pretoria (29
April 2021).