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[2018] ZAGPJHC 702
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G N v Road Accident Fund (13/30599) [2018] ZAGPJHC 702 (5 December 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
.
Please
note also that this is a corrected version of the order delivered
on 4 Dec 2018, which is available here.
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE NO: 13/30599
In the matter between:
N
G
Plaintiff
and
ROAD
ACCIDENT
FUND Defendant
CORRECTED ORDER
On 5/12/2018 this court granted an
order.
Prayer 1 of the order incorrectly
states the sum the defendant is ordered to pay as R5 665
412.25 when it should be
R5 655 412.25.
By agreement between the parties, and
in terms of Rule 42, I correct this patent, calculation error and
accordingly correct my order
dated 5/12/2018 to read :-
1.
The
defendant
is ordered to pay the sum of R 5 655 412.25
[R5
140 575.25 (future loss of earnings) + R800 000 (general
damages) +
R214 837 (past loss of earnings) – R500 000 (interim payment))
to the plaintiff, arising from the delictual damages
sustained by her
in a motor vehicle collision which occurred on 26 May 2011.
2.
The amount referred
to in paragraph (1)
supra
shall be payable
within 14 days from date hereof and is to be paid into the
plaintiff’s attorneys, Ivan Maitin Attorneys Trust
account, the
details of which are as follows:
Ivan Maitin Attorneys Trust Account
Bank
: First National Bank
Branch code
: 254 005
Account no.
: […]
3.
Interest
a
tempora mora
shall
be payable from fourteen (14) days from date hereof to date of
payment.
4.
The amount referred to in paragrpah 1
hereof together with interest thereon, shall be kept in the trust
account of Ivan Maitin Attorneys,
in an interest-bearing account in
terms of Section 78(2)(A) of the Attorneys Act, No.53 of 1979, for
the sole benefit of the plaintiff,
pending the formation of a Trust
for her benefit as referred to below and the opening of a bank
account for the Trust.
5.
The
Plaintiff’s
attorneys, Ivan Maitin Attorneys shall:
a.
cause a Trust (“trust
instrument”) to be established in accordance with the
provisions of the Trust Property Control
Act, No. 57 of 1988 in
favour of the plaintiff within three months of receipt of the payment
of the amount
in
paragraph (1)
supra
;
b.
be
entitled to deduct its fees and disbursements for professional
services from the aforesaid capital amount, only after the taxation
of the party and party bill of costs;
c.
pending the formation of the Trust,
make provision for the plaintiff to receive a stipend of R5 000 (five
thousand rand) per month
for the exclusive use of the plaintiff, from
the amount referred to in paragraph (1)
supra
;
d.
The Trust instrument, contemplated in
paragraph a. hereof, shall make provision for, inter alia, the
following:
i.
The plaintiff to be the sole capital
and income beneficiary of the Trust;
ii.
The Trust Property is to be excluded
from any community of property or accrual arising from any valid
marriage concluded by the
plaintiff;
iii.
The sole purpose of the Trust is to
administer the funds in a manner which best takes account of the
plaintiff
’
s interests;
iv.
The number of Trustees for the purpose
of transacting the business of the Trust (save the appointment of the
Trustees) shall be
three (3) and such number shall not be exceeded or
reduced;
v.
The appointment of, at least, one (1)
independent professional Trustee who should be properly qualified to
administer the Trust
assets;
vi.
The composition of the Board of
Trustees and the structure of the voting rights of the Trustees to be
such that:
1.
The calling and holding of meetings is
specified;
2.
The taking of all resolutions is
properly regulated and recorded in writing;
3.
An
adequate procedure is specified to resolve disputes between the
Trustees;
4.
The independent Trustee/s cannot be
overruled or outvoted in relation to the management of the Trust
assets by any Trustee who has
a personal interest in the manner in
which the Trust is managed;
5.
A
deadlock between the Trustees is avoided;
6.
The remaining Trustees are prevented
and/or precluded from acting otherwise than to achieve the
appointment of a replacement Trustee,
in the event of their number
being reduced below that prescribed;
7.
To
act in a tax efficient and cost-effective way at all times including
but not limited to making investments and/or recovering
their
remuneration and/or costs;
8.
No
charge should be made by any Trustee in relation to the receipt of
the initial payment to the Trust of the proceeds of the litigation.
vii.
The powers of the Trustees to be
exercised with specific reference to the circumstances of the
plaintiff and such to include but
not be limited to:
1.
The right to purchase, sell and
mortgage immovable property, invest and reinvest the Trust capital
and/ or income;
2.
applying the nett income of the Trust
Fund, and if that is not adequate at any time for the purpose, the
capital thereof, for the
maintenance including, without derogating
from the meaning of the term, the maintenance of the plaintiff, her
reasonable pleasures,
entertainment, general upkeep, welfare benefits
and rehabilitation and the acquisition or provision of residential
facilities or
a residence for the plaintiff. The income not used as
aforesaid shall accumulate to the capital;
viii.
The duty of the Trustees to disclose
any personal interest in any transaction involving the Trust property
to the Master of the
High Court;
ix.
The amendment of the Trust instrument
subject to the leave of the High Court only;
x.
The termination of the Trust on the
death of the plaintiff or with the leave of the High Court;
xi.
The right of the Trustees to pay the
plaintiff’s attorney’s costs in terms of the contingency
fee agreement entered
into between the plaintiff and the plaintiff’s
attorney;
xii.
The Trustees shall be entitled to call
for a taxation of the plaintiff’s attorneys, attorney and
client fee, if deemed necessary;
xiii.
Subject to the approval of the Master
of the High Court, the nomination of
the
below – mentioned Trustees:
1.
G
N (the plaintiff) whose identity number is […] (no consent
required);
2.
Surishini Prem on
behalf of Standard Trust Limited as an Independent Trustee;
3.
Fallon Malissa
Letsoalo, an adult female attorney as an Independent Trustee with
identity no: […];
xiv.
The Trustees should immediately take
all the requisite steps to secure an appropriate bond/s of security,
to the satisfaction of
the Master of the High Court, for the due
fulfilment of their obligations and to ensure that the bond/s of
security be submitted
to the Master of the High Court at the
appropriate time as well as to all other interested parties.
xv.
That the plaintiff is exempted from
filing security as a Trustee to the Master of the High Court;
xvi.
The provisions referred to above
shall, in accordance with the provisions of the Trust Property
Control Act, No. 57 of 1988, be
subject to the approval of the
Master.
e.
The
defendant
has previously furnished the plaintiff with an undertaking in terms
of
Section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, for the
costs of the future accommodation of the plaintiff in a
hospital or nursing home or the treatment of or rendering
of a
service to her or the supplying of goods to her as recommended by the
experts for the injuries she sustained in the motor
vehicle collision
which occurred on 26 May 2011 and the sequelae thereof, after such
costs have been incurred and upon proof thereof.
f.
The undertaking referred to above
shall include payment of:
i.
The costs of the creation and
administration of the Trust and the appointment of the Trustees as
referred to in paragraphs (5) and
(6) above;
ii.
The costs of the Trustees in
administering the estate of the plaintiff and the costs of
administering the statutory undertaking
furnished in terms of
Section
17(4)
(a) of the
Road Accident Fund Act
;
and
iii.
The costs of obtaining annual security
bond/s to meet the requirements of the Master of the High Court in
terms of
Section 77
of the
Administration of Estates Act, No. 66 of
1965
, as amended.
6.
The defendant is directed to pay the
plaintiff’s party/party costs of the action which costs shall
include but not be limited
to:
a.
The costs attendant upon obtaining
payment of the capital amount set out in paragraph (1)
supra
;
b.
The costs consequent upon the
employment of counsel, which costs shall include but not be limited
to, preparation, consultations,
appearances on trial for seven (7)
days, commencing on 15 November 2018 up to and including 23 November
2018;
c.
The reasonable costs of the reports,
addendum reports, (if any), RAF4 forms, joint minutes, (if any), and
the qualifying, preparation,
reservation fees, if any, to be
determined by the Taxing Master of the following expert witnesses:
i.
Dr
.Lewer-Allen
Neurosurgeon
ii.
Dr.
Marus
Neurosurgeon
iii.
Dr.
Pearl
Specialist Neurologist
iv.
Dr. Matisonn
Radiologist
v.
Prof. Andronikou
Neuroradiologist
vi.
Ms. Hattingh
Speech Pathologist
vii.
Ms.
Macnab
Clinical and Educational Psychologist
viii.
Dr. Smith
Psychiatrist
ix.
Dr. Shevel
Psychiatrist
x.
Dr. Botha
Specialist
Physician
xi.
Dr. Read
Orthopaedic
Surgeon
xii.
Ms.
Salamon
Occupational Therapist
xiii.
Dr. Choonara
Urologist
xiv.
Ms. Kotze
Industrial Psychologist
xv.
Mr. Whittaker
Consulting Actuary
d.
The attendance
costs of the following expert witnesses:
i.
Ms.
Macnab
Clinical and Educational Psychologist
ii.
Dr.
Shevel
Psychiatrist
iii.
Ms.
Kotze
Industrial Psychologist.
e.
The reasonable
costs consequent upon the plaintiff attending medico-legal
assessments at the instance of both parties.
f.
The costs for the
production of an additional bundle of papers for the defendant’s
counsel for the trial.
g.
Payment of costs is
subject to the following conditions:
i.
The plaintiff
shall, in the event that costs are not agreed, cause the notice of
taxation to be served on the defendant’s
attorney of record;
ii.
The plaintiff shall
allow the defendant 14 (fourteen) court days after taxation to make
payment of the taxed costs;
iii.
The aforesaid costs
are to be paid by the defendant directly to the plaintiff’s
attorney to be held in trust as detailed in
paragraph (2) hereof,
alternatively
to the Trustees.
7.
The Order is to be served by the
plaintiff’s attorneys on the Master of the High Court within
30(thirty) days from the date
of this Order.
8.
The defendant’s
counsel and the defendant’s attorney of record, are precluded
from raising any fees for work done on
21 and 22 November 2018.
___________________________
I OPPERMAN
Judge of the High Court
Gauteng Division,
Johannesburg
Heard:
19 - 23 November 2018
Judgment
delivered: 5 December 2018
Appearances:
For
Applicant: Adv M Patel
Instructed
by: Ivan Maitin Attorneys
For
Respondent: Adv S Mahomed
Instructed
by: Mayat Nurick & Associates