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[2018] ZAGPPHC 643
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Van Rooyen N.O Tsunke v Road Accident Fund (24156/2015) [2018] ZAGPPHC 643 (26 February 2018)
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Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 24156/2015
26/2/2018
Not
Reportable
Not
of interest to other judges
In
the matter between:
ADV
M VAN ROOYEN N.O.
obo
KS
TSUNKE
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
PETERSEN
AJ
Introduction
[1]
The plaintiff Kokoma Solomon Tsunke
initially instituted action against the defendant in his personal
capacity in terms of the provisions
of the Road Accident Fund Act,
Act 56 of 1996 ("the Road Accident Fund Act"). He suffered
damages as a result of injuries
sustained in a collision that
occurred on 07 December 2013 on Mahogany Road, Klerksdorp as the
driver of a motor vehicle with registration
number [….] and an
unknown motor vehicle driven at the time by the inured driver. Adv M
van Rooyen was subsequently appointed
as curatrix
ad
litem
for the plaintiff and
substituted as plaintiff on 28 June 2017.
Issues
of common cause and issues is dispute
[2]
On 18 September 2017, liability (merits)
was conceded 100% in favour of the plaintiff. The defendant further
gave a statutory undertaking
in terms of section 17(4)(a) of the Road
Accident Fund Act for the future medical and related expenses of Mr
Tsunke. The issue
of past medical expenses of R64 333.77 and the
quantification of past and future loss of earnings and general
damages remained
in dispute. At the commencement of this hearing it
was stated that past medical expenses would be accepted by the time
arguments
were concluded if no further instructions were forthcoming
from the defendant. The issue of past medical expenses was
consequently
accepted at the conclusion of the hearing.
[3]
The parties subsequently reached an
agreement on past and future loss of earnings and on a 50%
contingency deduction as being fair
and reasonable. The basis of the
calculation is premised on Scenario 1A as set out in the actuarial
calculations of the Actuary
Algorithm. The agreed amount is R1 822
207.00.
[4]
The sole issue for determination by this
court is the amount of general damages to be awarded to the
plaintiff.
The
evidence
[5]
The parties relied on the joint minutes
of several experts and certain expert reports. The contents of the
reports inclusive of
the joint minutes are not in dispute and it is
agreed that it may be accepted as evidence by the court. The reports
handed in by
consent include the following:
For
the Plaintiff
5.1
Dr JJ du Plessis (Neurosurgeon,
inclusive of a RAF4 Serious Injury Assessment Form)
5.2
Dr L Nel (Psychiatrist)
5.3
Dr H Konig (Opthalmologist)
5.4
Dr K Carpenter-Kling (Ear, Nose and
Throat Surgeon)
5.5
Dr O Guy (Speech and Language Therapist)
5.6
Dr PB White (Plastic and Reconstructive
Surgeon inclusive of inclusive of a RAF4 Serious Injury Assessment
Form)
5.7
Dr M Mazabow
(Clinical/Neuropsychologist)
5.8
Ms N Heyns (Occupational Therapist)
5.9
Ms E Noble (Industrial Psychologist)
5.10
GW Whittaker (Several actuarial reports:
Algorithm)
For
the Defendant
5.11
Dr Mukansi (Orthopaedic Surgeon)
5.12
Dr Fisha (Clinical/Neuropshychologist)
5.13
Dr Mazwi (Neurosurgeon)
5.14
Professor Kakaza (Neurologist)
5.15
Ms Hlongwane (Occupational Therapist)
5.16
Dr Nhlapo (Opthalmologist)
5.17
Ms Sewpersad (Audiologist)
5.18
Ms Cilliers (Industrial Psychologist)
Joint Minutes
5.19
Dr Mazabow and Dr Fisha
(Neuropshychologists)
5.20
Dr du Plessis and Dr Mazwi
(Neurosurgeons )
5.21
Ms Noble and Ms Celliers (Industrial
Psychologists)
The
injuries
[6]
The parties are further in agreement on
the seriousness of the injuries sustained by the plaintiff, insofar
as the injuries may
fall within the ambit of section 17(1) of the
Road Accident Fund Act. It is accepted that the plaintiff is entitled
to general
damages.
[7]
The serious injuries the plaintiff
sustained in the motor vehicle collision premised on the reports of
their respective expert and
in particular as identified by the
neurosurgeons and neuropsychologists include:
7.1
A very significant brain injury,
indicative of:
7.1.1
a severe diffuse axonal brain injury
with expected significant neurocognitive and behavioural deficits;
7.1.2
focal brain injury with signs of
previous haemorrhagic contusion of both frontal lobes and the right
occipital lobe;
7.1.3
a severe diffuse concussive brain
injury;
7.1.2
focal injuries to the brain in the form
of bi-frontal and left occipital haemorrhagic contusions;
7.1.3
possible secondary hypoxic brain insult
due to cerebral hypoxia as the oxyhaemoglobin saturation level in his
blood was 85% when
he arrived at the Anncron Clinic;
7.1.4
contusions, abrasions and lacerations to
the left frontal area of the scalp, left side of the forehead, left
eye and left cheek;
7.1.5
bruising of the right upper eyelid.
7.2
lacerations and abrasions to both elbows
and knees;
7.3
abrasions to the abdominal wall, chest
and left hand;
7.4
a significant neck injury with
symptomatic osteoarthritis of the left C1-C2 facet joint expected to
occur in future.
[8]
The plaintiff's neurosurgeon maintains
that there has been a 42% Whole Person Impairment whilst the
defendant’s neurosurgeon
maintains a 41% Whole Person
Impairment. The difference of opinion is negligible but emphasises
the seriousness of the plaintiff's
injuries. The most significant
injury for consideration in the quantum of damages to be awarded is
the very severe brain injury,
which is highlighted in the joint
minutes of the psychologists and neurosurgeons.
[9]
The
sequelae
of the injuries of the plaintiff,
extracted from the expert reports are as follows:
9.1
Headaches;
9.2
Neck pain;
9.3
cosmetic disfigurement in the form of
scarring;
9.4
impaired neck movements;
9.5
loss of smell bilaterally;
9.6
poor balance;
9.7
increased risk (10%) of developing
epilepsy in the period of 20 years from the accident, due to the
focal brain· injury;
9.8
serious long term impairment or loss of
body function;
9.9
permanent serious disfigurement;
9.10
severe long term mental or severe long
term behavioural disturbance or disorder;
9.11
chronic depression;
9.12
fatigability;
9.13
social withdrawal;
9.14
global depletion of cognitive
intellectual functions;
9.15
virtual global deficits in
speech/language function;
9.16
personality changes in that Mr Tsunke
has become irritable, aggressive, short tempered and has a poor
frustration tolerance.
[10]
It is clear taking an overall view of the various expert reports that
Mr Tsunke will need future
medical treatment for his injuries. The
neurosurgeons note that he needs symptomatic treatment for his neck
pain with medication,
physiotherapy and biokenitics. He has a 20%
chance of undergoing surgery to his neck at the C1-C2 level which
will restrict his
range of flexion of his neck by 50%. He will also
require occupational therapy.
[11]
Mr Tsunke is currently 33 years old. At
the time of the accident he was 29 years old. He was and continues to
be employed by the
South African Police Service ("SAPS").
The sequelae of the injuries will have an impact on his employment.
The Industrial
Psychologists in their joint minute refer to
collateral information obtained from the SAPS, through his shift
commander, Colonel
Mokgosi; direct supervisor, Captain Baloyi and a
certain Captain du Plessis and Colonel Sephoti. They note that Mr
Tsunke is not
capable of functioning on standard without the
help/support/assistance of his colleagues and that their intervention
probably masks
his problems/difficulties he is in reality
experiencing in his work, and is expected to experience in future as
a result of his
significant brain injury and the sequelae thereof.
Captain Baloyi maintains that Mr Tsunke copes with his work in the
charge office
without problem. Colonel Mokgosi appears to be the
epitome of a sympathetic employer, whilst acknowledging that Mr
Tsunke has problems
performing his work he nonetheless regards it as
acceptable to the extent that Mr Tsunke may even qualify for
promotion. Mr Tsunke
with his significant brain injury and short
temper, aggressiveness and irritability is allowed to perform his
normal duties as
a police officer, inclusive of being allowed to
carry a firearm.
The law
[12]
It is commonly accepted that in matters
of the present kind no two cases ever present with the same factual
matrix. In considering
a fair award for general damages in the
present matter, it would be appropriate to restate the approach to be
adopted by the court.
In
De Jongh v
Du Pisani
2004 (2) All SA 565
(SCA);
2005 (5) SA 457
(SCA), Brand JA said the following (loosely
translated from Afrikaans to English):
'56 Rabe
is entitled to fair compensation for this loss. The amount of such
compensation must, however, also be fair towards the
defendant. It is
particularly so in a matter such as this, that the Court must avoid
the human tendency to over compensate. Or,
as Innes CJ stated it in
in
Hu/ley v Cox
1923 AD 234
op 246, 'we cannot allow our
sympathy for the claimants in this very distressing case to influence
our judgment'.
…
.
58 The
problem is of course that compensation can only be paid in money and
the Court's dilemma is the award of monetary value for
loss that
money cannot buy. One of the accepted guidelines utilised by the
Courts as a solution to this dilemma is to look at previous
awards in
comparative cases.
…
.
60 The
tendency of rising awards in general damages in the recent past is
clearly noticeable... The following statement of Holmes
J in
Pitt
v Economic Insurance
Co
Ltd
1957 (3) SA 284
(D) op 287E -
F is equally applicable to the present matter:
'(T)he
Court must take care to see that its award is fair to both sides - it
must give just compensation to the plaintiff, but it
must not pour
out largesse from the horn of plenty at the defendant's expense'.
Conservatism
in the award of general damages has its origin in the need that
fairness should also be extended to the defendant and
not as result
of the miserliness of the community towards the plaintiff.
64
The approach which has always been adopted by the court, is to the
contrary (see for example,
Hulley v Cox (supra
op 246),
Sigournay v Gil/banks (supra
on 556) and
Protea Assurance
Co
Ltd v Lamb
1971 (1) SA 530
(A) on 535). According to
this approach the principle is that the determination of
non-patrimonial damages lies in the discretion
of the Court. In the
exercise of the Court's discretion comparisons with awards in
previous cases is a valuable aid since it indicates
to the Court the
broad parameters or pattern within which the Court's award should
resort. It is also so that uniformity in awards
is a requirement of
fairness. Nonetheless it remains a guideline. It does not replace the
Court's discretion by being slavishly
bound to the letter of adjusted
values of previous awards.'
[13]
In the unreported decision of
Minister
of Police v Dlwathi
(20604/14)
[2016] ZASCA 6
(2 March 2016), Majiedt JA said:
"8
It is well established
that an assessment of an appropriate award of general damages
(sometimes also referred to as non-pecuniary
damages) is a
discretionary
matter (my emphasis) and has as its objective to
fairly and adequately compensate an injured party (see
Protea
Assurance
Co
Ltd v Lamb
1971 (1) SA 530
(A) at 534H-535A
and
Road Accident Fund v Marunga
ZASCA (144/2002)
[2003] ZASCA
19
;
2003 (5) SA 164
(SCA) para 23)..."
[14]
In the more recent matter of
Minister of Safety and Security v
Augustine and Others
2017 (2) SACR 332
(SCA) , Gorven AJA
restated the approach:
'28 ...Both counsel pointed to a
number of previously decided matters which, they submitted, should
guide this exercise. It is worth
remembering the part played by
previous awards in comparable cases. This was clearly expressed by
Potgieter JA
(Protea Assurance
Co
Ltd v Lamb
1971 (1)
SA 530
(A) at 535H - 5368 ):
'It should be emphasised...that
this process of comparison does not take the form of a meticulous
examination of awards made in
other cases in order to fix the amount
of compensation; nor should the process be allowed so to dominate the
enquiry as to become
a fetter upon the Court's general discretion in
such matters. Comparable cases, when available, should rather be used
to afford
some guidance, in a general way, towards assisting the
Court in arriving at an award which is not substantially out of
general
accord with previous awards in broadly similar cases, regard
being had to all the factors which are considered to be relevant in
the assessment of general damages. At the same time it may be
permissible, in an appropriate case, to test any assessment arrived
at upon this basis by reference to the general pattern of previous
awards in cases where the injuries and their
sequelae
may have
been either more serious or less than those in the case under
consideration.'
[23]
Having carefully considered the peculiar
facts of the present matter and the comparable cases alluded to I am
of the view that in
exercising my discretion in ensuring fairness to
both the plaintiff and the defendant, that an amount of R1 300 000.00
in general
damages be awarded to the plaintiff. I further consider
the establishment of a Trust to be in the best interests of Mr
Tsunke.
[24]
The
defendant shall therefore
pay to
the plaintiff an amount of R3 186 540.77 (Three Million, One Hundred
and Eighty Six Thousand, Five Hundred and Forty Thousand
Rand and
Seventy Seven cents) in settlement of the Plaintiff's claim,
comprised as follows:
24.1
Past medical and hospital
expenses
R64 333.77
24.2
Future hospital, medical and related
expenses:
Section17(4)(a)
undertaking
24.3
Past and Future Loss of income and
earning capacity: R1 822 207.00
24.4
General damages
R1 300 000.00
24.5
Total:
R3 186 540.77
Order
[25]
In the result I make the following
order, as set out in the Draft Order marked
"X"
,
which is incorporated as part of
this judgment.
AH
PETERSEN
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
[GAUTENG DIVISION, PRETORIA]
HELD AT PRETORIA ON THIS THE
13
TH
DAY OF FEBRUARY 2018 AT COURT 8A SA BEFORE THE
HONOURABLE JUSTICE PETERSEN
.
CASE
NO: 24156/2015
In
the matter between:
ADV
M VAN ROOYEN NO obo TSUNKE,
KS
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
DRAFT
ORDER OF COURT
HAVING
HEARD COUNSEL
for the Plaintiff and
the Defendant.
THE COURT GRANTS JUDGMENT
in favour of the Plaintiff against the
Defendant in the following terms:-
1.1
The
Defendant shall pay an amount of R3 186 540.77
(Three
Million, One Hundred and Eighty Six Thousand, Five Hundred and Forty
Thousand Rand and seventy seven cents)
to
the Plaintiff in settlement of the Plaintiff s claim;
1.2
1.2.
The aforementioned amount of R3 186 540.77
(Three
Million, One Hundred and Eighty Six Thousand, Five Hundred and Forty
Thousand Rand and seventy seven cents)
is
comprised of as follows:
After
hearing counsel:
1.2.1
Past medical and hospital
expenses
R64 333.77
1.2.2
Future hospital, medical and related
expenses:
Section 17(4)(a)
undertaking
1.2.3
Past and Future Loss of income and
earning capacity: R1 822 207.00
1.2.4
General damages
R1 300 000.00
Sub-total:
R3 186 540.77
TOTAL:
R3 186 540.77
1.3
All
payments in terms of this order shall be effected into the
Plaintiff's Attorneys, Adams & Adams, trust account, the details
of which are as follows:
Account holder
:
Adams &
Adams Trust Account
Bank
: Nedbank
Branch
: ·
Pretoria
Branch
code
: 198765
Account number
:
[….]
Reference
:
NK/AMP/P1515
1.4
The
aforesaid capital amount will not bear interest unless the Defendant
fails to effect payment thereof within 14 [FOURTEEN] calendar
days of
the date of this Order, in which event the capital amount will bear
interest at the rate of 10.25% per annum, calculated
from and
including the fifteenth calendar day after the date of this Order to
and including the date of payment thereof.
2.
The
Defendant shall furnish the Plaintiff with an undertaking in terms of
Section 17(4)(a), in terms of which the Defendant shall
be liable
for:
2.1
100%
[ONE HUNDRED PERCENT] of the costs of the future accommodation of KS
Tsunke in a hospital or nursing home or treatment of or
rendering of
a service or supplying of goods to him after the costs have been
incurred and on proof thereof, resulting from the
accident that
occurred on 7 December 2013.
2.2
100%
[ONE HUNDRED PERCENT] of the reasonable costs of the Trustee
appointed in terms of paragraph 3 hereof in respect of establishing
a
Trust and any other reasonable costs that the Trustee may incur in
the administration thereof including his/her fees in this
regard,
which costs shall include:
2.2.1
The
monthly premium that is payable in respect of the insurance cover
which is to be taken out by the Trustee to serve as security
in terms
of the Trust Deed;
2.2.2
The
costs associated with the yearly audit of the Trust by a chartered
accountant as determined in the Trust Deed; but which costs
shall be
subject to the following:
2.2.3
The
fees and administration costs shall be determined on the basis of the
directives pertaining to curator's remuneration and the
furnishing of
security in accordance with the provisions of the Administration of
Deceased Estate Act, 66 of 1965, as amended from
time to time;
2.2.4
All
the above mentioned costs shall be limited to payment of the
reasonable costs which the Defendant would have had to pay regarding
appointment, remuneration and disbursements had the Trustee been
appointed as a
Curator Bonis.
3.
The
nett proceeds of the payments referred to above as well as the
Plaintiffs taxed or agreed party and party costs payable by the
Defendant, after deduction of the Plaintiffs attorney and own client
legal costs (the "capital amount",) shall be payable
to a
Trust, subject to the following: -
3.1
such
Trust will be based on a trust deed containing the provisions as more
fully set out in the draft Trust Deed attached hereto
marked as
Annexure " A" ';
3.2
such
Trust shall have, as its main objective, the controlling and
administration of the capital amount on behalf of KS Tsunke;
3.3
CONSTANT
WILSNACH will be the first Trustee with powers and abilities as set
out in the draft Trust Deed attached hereto, marked
as Annexure "A";
3.4
the
trustee(s) will be obliged to furnish security to the satisfaction of
the Master of the High Court of South Africa for the assets
of the
Trust and for the due compliance of all his/her obligations towards
the trust.
4.
The
Trustee is authorised to pay the Plaintiff's attorney and own client
costs out of the Trust funds in so far as any payments
in that regard
are still outstanding after the establishment of the Trust.
5.
Until
such time as the Trustee is able to control the capital sum and to
deal with same in terms of the trust deed, the Plaintiff's
attorneys
are:
5.1
authorised
to invest the capital amount in an interest bearing account in terms
of Section 78(2A) of the Attorneys Act to the benefit
of KS Tsunke
with a registered banking institution pending the finalisation of the
directives referred to in paragraph 3 above;
5.2
authorised
and ordered to make any reasonable payments to satisfy any of KS
Tsunke's needs that may arise and that are required
in order to
satisfy any reasonable need for treatment, care, aids or equipment
that may arise in the interim.
5.3
prohibited
from dealing with the capital amount in any other manner unless
specifically authorised thereto by this court, subject
to the
provisions contained in paragraphs 3 to 5 hereof.
6.
The
Defendant shall make payment of the Plaintiff's taxed or agreed party
and party costs on the High Court scale, which costs shall
include,
but not be limited to the following:-
6.1
T
he
fees of Senior Counsel on the High Court Scale, inclusive of but not
limited to his full day fee for 13 February 2018, and costs
of
preparation of the Heads of Argument if any;
6.2
The
reasonable taxable costs of obtaining all experts, medico-legal and
actuarial Reports from the Plaintiff's experts which were
furnished
to the Defendant;
6.3
The
costs of the plaintiff s experts' fees in regard to the preparation
and reservation are awarded on a party and party scale against
the
defendant on the following basis:
6.3.1.
The
costs (fees and disbursements) of all consultations (inclusive of
telephonic consultations) with counsel and/or the plaintiffs
attorney;
6.3.2.
The costs (fees and disbursements) of
all consultations between the plaintiff and defendant's experts for
purposes of compiling
joint minutes;
6.3.3.
The costs (fees and disbursements) of
attending all work site and/or accident site inspections;
6.3.4.
The costs of experts meetings;
6.3.5.
The costs (fees and disbursements) of
preparation fees inclusive of but not limited to the perusal of all
plaintiff and defendant's
medico legal reports, joint minutes,
clinical notes, hospital records, documentation pertaining to
plaintiff's qualifications
and employment history, school records
and/or any other relevant documentation which may be necessary to
qualify the respective
experts to testify;
6.3.6.
The allowances payable to witnesses in
civil cases as published in Government Gazette Number 30953 (No R394)
dated 11.04.08 and
specifically section 4 thereof is not applicable
and the Defendant must make payment of the full day fees in respect
of the reservation
to testify on 13 February 2018, until the
finalisation of the trial on 13 February 2018 calculated at 8 hours
per day at the applicable
hourly rate of each of the following
experts:
6.3.6.1
Dr JJ Du Plessis (Neurosurgeon;)
6.3.6.2
Dr L Nel (Psychiatrist);
6.3.6.3
Dr K Carpenter- Kling (Ear Nose and
Throat specialist;)
6.3.6.4
Dr O Guy ( Speech Therapist);
6.3.6.5
Dr Bruce White (Plastic Surgeon);
6.3.6.6
Mr M Mazabow (Neuropsychologist);
6.3.6.7
Ms N Heyns (Occupational Therapist);
6.3.6.8
Ms Esme Noble (Industrial Psychologist;)
6.3.6.9
Mr G Whittaker (Actuary).
6.4
The
costs of all consultations between the Plaintiff's attorneys, and/or
counsel, and/or experts, and/or witnesses in preparation
for the
hearing of the action;
6.5
The
reasonable taxable transportation costs (including Toll and E-Toll
charges) incurred by or on behalf of KS Tsunke in attending
all
medico legal consultations with the experts, consultations with
the legal representatives and the court proceedings, subject
to the
discretion of the Taxing Master;
6.6
The
reasonable taxable transportation costs (including Toll and E-Toll
charges) and accommodation costs incurred by or on behalf
of the
witnesses for the Plaintiff in attending consultations and the court
proceedings, subject to the discretion of the Taxing
Master
6.7
The
costs of a consultation between the Plaintiff and her attorney to
discuss the settlement offer received from the Defendant and
the
terms of this order;
6.8
The above costs shall also be paid into
the aforementioned trust account.
7.
The
Defendant shall make payment of the fees of duly the appointed
curatrix ad litem inclusive but not limited to her reasonable
day fee
for 13 February 2018.
8.
The
following provisions will apply with regards to the determination of
the aforementioned taxed or agreed costs:-
8.1
The
Plaintiff shall serve the notice of taxation on the Defendant's
attorney of record;
8.2
The
Plaintiff shall allow the Defendant 7 (SEVEN) court days
to
make payment of the taxed costs from
date of settlement or taxation thereof;
8.3
Should
payment not be effected timeously, Plaintiff will be entitled to
recover interest at 10.25% on the taxed or agreed costs
from date of
allocator to date of final payment.
BY
ORDER OF THE COURT
Plaintiff's Counsel
:
Adv
Piet du Plessis SC (082578 2424)
Defendant's Counsel
:
Adv
..
.. ...... ..... . .... .. ..
(...
.... .. ...... ...... )
DEED OF TRUST
in pursuance of a Court Order
of the High Court of South Africa (PRETORIA HIGH COURT, GAUTENG
DIVISION) DATED 13 February 2018 in
Case No. 2015/24156 in the matter
between TSUNKE, KS and the ROAD ACCIDENT FUND
entered into by and between
NICOLETTE KOCH
attorney representing the
Plaintiff in the abovementioned matter (hereinafter referred to as
the "Donor")
and
CONSTANT WILSNACH
(hereinafter
referred to as the " TRUSTEE" )
In terms of which the Donor
donates to the TRUSTEE, the sum of R100.00, which amount is to be
held by the TRUSTEE in trust and be
administrated by him in terms of
the conditions and terms of this Deed of Trust as is herein set out
:-
1.
DONATION
The Donor hereby donates to the
TRUSTEE the sum of R100.00, which amount will be paid to the TRUSTEE
and will be received by him
with the registration of this Deed.
2.
NAME OF TRUST
The Trust will be known as the
KOKOMA SOLOMON TSUNKE
TRUST.
3.
TRUSTEE
3.1
The
first TRUSTEE of this Trust will be the person described as TRUSTEE
in the preamble to this Trust Deed. This office will be
held by
him/her for an indefinite period until his/her resignation or
incapacity or the termination of the Trust;
3.2
The
TRUSTEE is required to furnish security to the Master of the High
Court of South Africa for the assets of the Trust as may be
required
in terms of the provisions contained in the Trust Property Control
Act as amended from time to time.
4.
BENEFICIARY
The beneficiary of this Trust will
be
KOKOMA SOLOMON TSUNKE,
who due to the injuries sustained by
his requires assistance with maintaining and managing his own
affairs, with regards to the
income derived from the Trust asset s,
and the capital shall also be used to the benefit
KOKOMA SOLOMON
TSUNKE
in such a way as the TRUSTEE may deem appropriate. Should
KOKOMA SOLOMON TSUNKE
pass away, the Trust's assets will be
transferred to the heirs of
KOKOMA SOLOMON TSUNKE
as set out
in the Will of
KOKOMA SOLOMON TSUNKE
or should
KOKOMA
SOLOMON TSUNKE
not leave behind any will the assets will be
transferred to the intestate heirs of
KOKOMA SOLOMON TSUNKE
in
accordance with the provisions of the Intestate Succession Act as
amended from time to time.
5.
OBJECTIVES
The objectives of this Deed of
Trust are the following:-
5.1
To
maintain and support the said
KOKOMA
SOLOMON TSUNKE
physically and
mentally;
5.2
The
TRUSTEE will as far as possible endeavour to utilize the funds of the
Trust to comply with the medical needs of the mentioned
KOKOMA
SOLOMON TSUNKE.
In this respect the
TRUSTEE will in his discretion, and if he/she deems it necessary, be
authorised to make use of medical advice
in overseas countries and if
necessary, send the mentioned
KOKOMA
SOLOMON TSUNKE
to the foreign
country if the TRUSTEE in his/her discretion deems it to the benefit
of
KOKOMA SOLOMON TSUNKE
and
if there are sufficient grounds and funds for such advice and medical
treatment ;
5.3
To
provide accommodation to the beneficiary and one other person who
will act as the beneficiary' s caretaker/nurse if necessary
and
affordable . In this respect the TRUSTEE will also be entitled in
his/her discretion to employ people and to remunerate them
for
services rendered to
KOKOMA SOLOMON
TSUNKE
where and if necessary and
affordable .
5.4
To
do anything that the TRUSTEE in his/her discretion deems necessary
for the general wellbeing of the mentioned
KOKOMA
SOLOMON TSUNKE
and the TRUSTEE will
be entitled to incur such reasonable costs as he deems necessary in
this regard in his/her absolute discretion;
5.5
To
invest the Trust' s assets and to act therewith in such a manner so
as to attempt to increase same and if possible to cause capital
growth in order for the funds paid over in trust to be administered
for as long as possible, to the benefit of
KOKOMA
SOLOMON TSUNKE.
6.
ASSETS
The
assets of the Trust will include:-
6.1
The
assets donated to the Trustee in terms of this Deed as well as any
additions and accruals thereto;
6.2
All
donations· and inheritances donated or bequeathed to the Trust
in supplementation of the Trust's assets;
6.3
All
assets that the Trust may purchase with its own funds or borrowed
funds or that may be acquired by any other juristic act;
6.4
Any
assets that may be allocated to the Trust in terms of an Order of
Court.
7.
INCOME FROM THE TRUST
The income of the Trust will be
all income earned by means of the Trust's assets.
8.
POWERS OF THE TRUSTEE
8.1
To
enable the TRUSTEE to comply with all obligations in terms of the
Deed of Trust, the TRUSTEE will be entitled :-
8.1.1
To
perform any act in general, whatsoever, that is according to his/her
opinion, beneficial for the preservation and growth of the
assets of
the Trust, or in the interest of the Beneficiary. The powers
entrusted to him/her according to the paragraphs hereinafter
do not
limit the generality of this sub-paragraph;
8.1.2
To
use any part of the assets or income of the Trust for payment of any
costs reasonably incurred by him/her in relation to his/her
duties
and obligations as TRUSTEE;
8.1.3
To
invest the assets or income of the Trust or any part thereof, in such
a manner as he/she may deem proper in his/her discretion.
Without
detracting from the generality of the aforementioned clause, he/she
will be entitled to invest in shares in public companies,
building
societies, loans with security, investments in state and municipal
shares, investments in fixed property or any such assets
as he/she
may deem beneficial to the Trust and its beneficiary which will also
include moveable assets of whatsoever nature if
deemed reasonably to
the benefit of the beneficiary. Such moveable assets may be used or
consumed by the TRUSTEE if, in his/her
discretion, it is deemed to be
reasonably in the interest of the beneficiary. He/she will
furthermore be entitled to call up any
investments, to make any
investments solvent, to convert, amend, realise and to re-invest such
investments in any manner reasonably
deemed appropriate;
8.1.4
If
the TRUSTEE practices a profession and in such capacity performs any
other act or service on behalf of the Trust, in such capacity,
the
TRUSTEE will be remunerated for his/her professional services
rendered without limiting or reducing his/her right to remuneration
as stipulated hereinafter;
8.1.5
To
institute legal and arbitration proceedings and to oppose same in any
competent court with regard to any matter forthcoming from
the Trust
and to pay the costs incurred in relation thereto from the assets or
income of the Trust;
8.1.6
To
purchase, sell, let, hire or to hire-purchase any assets;
8.1.7
To
reasonably acquire or renounce, in any manner whatsoever, rights on
behalf of the Trust where such actions are in the best interest
of
the Trust;
8.1.8
To
acquire money through a loan or expend money by way of a loan on any
conditions and against proper security being furnished where
money is
expended by way of a loan;
8.1.9
To
encumber any assets of the Trust by way of a bond , pledge, hypothec
or session as security;
8.1.10
To
perform all acts on behalf of the Trust which may be necessary to
effect transfer of any assets of the Trust;
8.1.11
To
grant extensions for the complying with any duty towards the Trust,
to reach compromises and oppose claims against the Trust,
to
recognise, and settle same and to handle any claims in favour of the
Trust in the same manner ;
8.1.12
To
employ people to perform any act and to remunerate them from the
assets or income of the Trust. The possibility that the TRUSTEE
would
have been able to perform such act himself/herself does not detract
from the aforementioned entitlement;
8.1.13
To
utilize the assets and income of the Trust in such a manner as the
TRUSTEE may deem proper for the conservation, maintenance
or
replacement of any assets of the Trust and to demolish any buildings
if deemed appropriate by the TRUSTEE to erect new buildings
on the
fixed property of the Trust;
8.1.1 4 To exercise
his/her voting right as deemed appropriate, with regard to any shares
which belong to the Trust and
are held in any company or society. The
exercise of his/her discretion and authority hereunder is not reduced
where he/she directly
or indirectly has an interest in such company
or society neither will such TRUSTEE due to his/her confidential
relationship with
the Trust be obliged to give account of any
benefit, which accrues to him/her due to such interest either
directly or indirectly,
nor is any act, agreement or deed of the
TRUSTEE void or voidable on the ground that he/she received such
benefit . The object
of this clause is to avoid that the consequences
of voidability or voidness due to the confidential office of the
TRUSTEE will
supervene and insofar as it may affect agreements and
relationships with companies and societies in which the TRUSTEE has a
personal
interest ;
8.1.15 To lend
money to any person or legal entity on such conditions as he/she in
his/ her absolute discretion
may stipulate on the condition that
proper security is provided by the lender;
8.1.16 To enter
into insurance contracts and to pay the premiums from the assets of
the Trust;
8.1.17 To pay the
debts of the Trust;
8.1.18 To accept
or refuse donations and inheritances to the Trust;
8.1.19 To open a
bank account and to borrow money from a bank on the overdraft
facility or otherwise;
8.2
Notwithstanding
the stipulations of paragraph 5.1 or any other paragraph in this
Deed, the TRUSTEE will not be entitled to dispose
of any assets or
income of the Trust for his/her own benefit or the benefit of his/her
estate. Without detracting from the generality
of the aforementioned
he/she will specifically not be entitled or authorised to appropriate
or to dispose of any of the assets
or income of the Trust as his/her
own, as he/she deems fit, if he/she by doing so will benefit
himself/herself or his/her estate
directly or indirectly. The
TRUSTEES will furthermore not be authorised to use or consume any of
the assets of the Trust directly
or indirectly, for his/her own
benefit unless so authorised by the Master of the High Court of South
Africa;
8.3
If
the Trust shows drastic growth and if the administration thereof
requires it , the TRUSTEE will be entitled to employ a person
or
persons, full time or part time, to assist with the administration of
the Trust and in this respect he/she will be entitled
to pay a
reasonable salary or remuneration, which he/she in his discretion
deems appropriate, to such a person or persons. Control
and care over
the Trusts assets will however always be the responsibility of the
TRUSTEE including fixed property or a bond with
regards to any place
in the Republic of South Africa. In this regard the only limitation
is that investments may only be made within
the borders of the
Republic of South Africa.
9.
BOOKKEEPING
9.1
The
TRUSTEE must keep a complete set of accounting records with regard to
the affairs of the Trust;
9.2
The
TRUSTEE will ensure that the accounting records of the Trust are
audited by a chartered accountant and that such accountant
will have
free access to the books, documentation and assets of the Trust.
10.
APPLICATION OF INCOME
The TRUSTEE will use the income of
the Trust to pay the administration costs for the administration of
the Trust and to realise
the objectives of the Trust.
11.
DUTIES OF THE TRUSTEE
The
TRUSTEE will:-
11.1
As
far as possible endeavour to realise the objectives of the Trust;
11.2
To
open a current account with a registered commercial bank of his/her
choice, which account will be used for the receipt of all
cash which
is paid to the Trust;
11.3
To
invest and reinvest the funds of the Trust in such a manner as he/she
may deem fit in shares, securities or any assets of whatsoever
nature
including fixed property or on bond in any place in the Republic of
South Africa and in this respect the only limitation
is that
investments may only be made within the borders of the Republic of
South Africa;
11.4
To
amend, .regroup or reinvest the investments in such a manner and on
such conditions and for such objectives as the TRUSTEE in
his/her
sole discretion may deem appropriate;
11.5
To
see to it that proper minutes of all decisions made by him/ her, are
kept in a safe place;
11.6
To
see to it that the financial statements of the Trust for each year
are kept in safe custody for the period of the existence of
the
Trust;
11.7
To
see to it that all contracts are fulfilled;
11.8
To
make all payments that may be payable on the income of the Trust;
11.9
If
he/she deems it necessary to effect any amendments to the Trust Deed,
he/she will be entitled to make the said amendments on
condition that
such amendments are approved by the Donor during his/her lifetime.
After the death of the Donor he/she will be entitled
to make such
amendments as he/she may deem appropriate on condition that such
amendments will not amend the objective of the Trust;
11.10
To see to it that the set of books that
he/she must open and keep will immediately become operational and at
the same time appoint
a firm of auditors for the Trust as soon as the
Master of the High Court has registered this Deed;
11.11
To see to it that the firm of auditors
that is appointed for the Trust will at all times have free access to
the books and accounts
and vouchers of the Trust and he further
undertakes to obtain such information as the auditors may require and
to make same available
to the firm of auditors and if explanations
are required, to provide same.
12.
APPOINTMENT OF THE TRUSTEES
The following people will be
incompetent to act as TRUSTEE of this Trust:-
12.1
Any
person who is incompetent to act as a director of a company in terms
of the stipulations of the relevant Company Laws of the
Republic of
South Africa;
12.2
Any
person who is an unrehabilitated insolvent;
12.3
Any
person who has previously been removed as a TRUSTEE from a t rust due
to his misadministration of the said Trust;
12.4
Any
person who has previously been found guilty, in the Republic of South
Africa· or elsewhere, of theft, fraud, forgery,
perjury,
corruption or any misconduct or offence where dishonesty was an
element of and resulted in that person being found guilty;
12.5
Any
person who has been declared mentally ill or incapable of managing
his own affairs.
13.
TERMINATION OF THE TRUST
The Trust will be terminated when
the mentioned
KOKOMA SOLOMON TSUNKE
passes away or when the
Master of the High Court of South Africa orders it so, whichever
event may happen first.
14.
DISSOLUTION OF THE TRUST
With termination of the Trust as a
result of the death of
KOKOMA SOLOMON TSUNKE,
the Trust will
be liquidated and the capital will after all the administrative costs
and debts as well as claims against the Trust
have been paid, be
allocated according to the stipulations of the will of the mentioned
KOKOMA SOLOMON TSUNKE
and if the mentioned
KOKOMA SOLOMON
TSUNKE
dies int estate, the nett assets of the Trust will be
divided equally between her intestate heirs in accordance with the
relevant
Intestate Succession Act that is applicable in the Republic
of South Africa. If the Trust is terminated by order of the Master of
the High Court of South Africa, the funds will be paid out in
accordance with the stipulations of such order.
15.
EXEMPTIONS
With regard to the aforementioned
the following exemptions will be applicable:-
15.1
No
TRUSTEE will be incapable due to his/her office as TRUSTEE of this
Trust, to enter into a contract with the Trust or any company
in
which the Trust has an interest. Furthermore any contract entered
into between the Trust and such company will not be void due
to the
Trustee' s interest in the company . The only requirement with regard
hereto, is that the TRUSTEE must before any negotiations
are entered
into, disclose his/her interest in the contract or entity, to the
Master of the High Court of South Africa before such
negotiations
take place;
15.2
Any
TRUSTEE, who is a member of or a partner in a firm of professional
practitioners, may be employed by the Trust or render services
for
the Trust and in such instance the TRUSTEE will be entitled to a fee
in his professional capacity;
15.3
No TRUSTEE will be requested to make
good any damages that the Trust may have suffered, regardless of how
such damage was caused,
with the exception of such damage that was
caused by the dishonesty of a TRUSTEE or as a result of his
negligence;
15.4
No TRUSTEE will be liable for any
dishonesty or wrongful act committed by any of the other TRUSTEES
unless such a TRUSTEE had knowledge
thereof and allowed such
dishonest acts or acted as an accessory, or could have prevented such
act but negligently failed to do
so;
15.5
The
TRUSTEE shall be indemnified out of the assets of the Trust with
regards to any claims that may be instituted against him/her
personally and which result from the reasonable acts of the TRUSTEE
and the exercise of any of his competencies which he is entitled
to
exercise in terms of this Deed;
16.
REMUNERATION
If the TRUSTEE is a professional
person, he/she will be entitled to his reasonable professional fees
for any professional work done
for the Trust. Such fees will include
any fees that are reasonably payable to his/her partners and he/she
will further be entitled
to make use of the services of other similar
professional people as also auditors, medical doctors, attorneys and
advocates. With
regard to services rendered by the TRUSTEE for the
general administration of the Trust and arrangements which he/she
will make
with regard to the care of the
KOKOMA SOLOMON TSUNKE,
the TRUSTEE will be entitled to a yearly fee as stipulated in the
relevant legislation of the Republic of South Africa.
17.
MARRIAGE
All the benefits that
KOKOMA
SOLOMON TSUNKE
is entitled to in terms of this Deed of Trust are
for all purposes excluded from any community of property or any
community of profit
and loss. The accrual system in terms of the
Matrimonial Property Act 88 of 1984
is not applicable to any benefit
hereunder. It may not be seized for the debts or liabilities of any
spouse of
KOKOMA SOLOMON TSUNKE
and may not form part of any
insolvent estate of such a spouse or vest in the curator of such
insolvent estate.
18.
ACCEPTANCE
The TRUSTEE hereby accepts the
donation made to him/her according to this Deed subject to the
conditions of this Deed and further
undertakes to realise the
objectives of this Trust Deed.
SIGNED
at PRETORIA on this the
day of
2018.
AS
WITNESSES:
1.
DONOR
2.
SIGNED at PRETORIA on this the
day of
2018.
AS
WITNESSES:
1.
TRUSTEE
2.