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[2017] ZAGPPHC 161
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Anthony v Road Accident Fund (27454/2013) [2017] ZAGPPHC 161 (15 February 2017)
SAFLII
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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, NORTH GAUTENG DIVISION, PRETORIA
CASE
NO: 27454/2013
DATE:
15/2/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
ANTHONY,
M
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
MSIMEKI
J
INTRODUCTION
1.
The plaintiff, a 22 year old female law student, is suing for damages
that she suffered, under different heads, arising from
devastating
bodily injuries which she sustained in a motor vehicle collision on
10 December 2011 when she was conveyed as a passenger.
BACKGROUND
2.
At approximately 02h00 on 10 December 2011, in the intersection of
Watermeyer and Cussonia Streets, Silverton, Pretoria, the
collision
referred to in paragraph 1 above, occurred between an unidentified
motor vehicle driven by an unidentified driver (the
"insured
driver") and a motor vehicle with registration number WCS [...]
GP driven by C Suliman in which the plaintiff
was a passenger.
3.
The plaintiff alleged that the collision was caused due to the sole
negligence of the insured driver who was said to be negligent
in the
manner described in 5.1 to 5.6 of paragraph 5 of the particulars of
claim.
4.
The plaintiff further alleged that she, as a result of the aforesaid
collision, suffered the following injuries:
4.1. a bilateral medial orbital
fracture;
4.2. inferior blow out fracture;
4.3. multiple facial lacerations and
open wounds;
4.4. bruising to the upper arm;
4.5. broken and lost teeth;
4.6. a moderately severe head injury;
and
4.7. severe scarring and
disfigurement.
5.
The plaintiff contended that she, as a result of the aforesaid
injuries:
5.1. underwent medical treatment;
5.2. will have to undergo medical
treatment in the future; and
5.3. will suffer a loss of income in
the future.
6.
The nature and the extent of the injuries sustained by the plaintiff,
and the sequelae relating thereto, in the aforesaid collision,
are
clearly described in the medico-legal and RAF4 serious injury
assessment reports which the plaintiff delivered.
7.
The plaintiff alleged that she, as a result of the injuries sustained
by her in the collision and the sequelae, suffered damages
in the
amount of R 5. 677 292 61 calculated and computed as follows:
7.1. Past medical and hospital
expenses: R149 652.61
7.2. Future medical and hospital
expenses: Section 17(4)(a) undertaking;
7.3. Future loss of earnings/earning
capacity: R3 727 640.00;
7.4. General damages: R1 800 000.00
TOTAL
: R5 677 292.61
8.
According to the plaintiff:
8.1. The amount of R149 652.61 claimed
in paragraph 7.1 above relates to past hospital, medical and related
expenses.
8.2. The undertaking in paragraph 7.2
above will cater for anticipated treatment for her injuries.
8.3. G A Whittaker, the actuary, deals
with the amount of R3 727 640 claimed in paragraph 7.3 above in the
actuarial calculation.
8.4. The amount claimed for general
damages in paragraph 7.4 above, is a global amount which cannot be
subdivided in headings for
damages.
9.
Finally, the plaintiff's claim is for:
9.1. Payment of the amount of RS 677
292.61 together with a
Section 17(4)(a)
undertaking;
9.2. Interest on the aforesaid amount
of RS 677 0292 61 at the rate of 9.0% per annum calculated, 14
calendar days from date of
judgment to date of payment; and
9.3. Costs of suit.
10.
Advocate Ferguson ("Ms. Ferguson") represented the
plaintiff while Advocate Westebaar ("Mr Westebaar'') represented
the defendant when the matter was heard and argued.
11.
The defendant, in the Pre-Trial minutes of 14 April 2015, and in
particular paragraph 3.9 thereof, admitted "the truth,
veracity
and correctness of the documents contained in the plaintiffs
'Quantum' bundle".
12.
It is important to note that the past medical and hospital expenses
in the amount of R149 652 61 have been conceded. The future
medical
and hospital expenses in the form of
Section 17(4)(a)
undertaking
have been tendered. The merits, as at the date before trial, had not
been conceded. This, despite the fact that the
plaintiff was a
passenger in the motor vehicle. The merits, however, were no longer
in issue when the matter was heard. The court,
at the trial, was
informed that it only had to determine the extent of the plaintiff’s
future loss of earnings/earning capacity
and her general damages.
13.
Adams and Adams, the plaintiff's attorneys, instructed Algorithm
Consultants and Actuaries to determine the capitalized value
of loss
of income of the plaintiff. Greg Whittaker of Algorithm Consultants
and Actuaries provided such determination. A medico-legal
report
dated 7 April 2015 and the Addendum medico-legal report dated 22
April 2015 are from pages 167-171 and from pages 172-177
respectively. They appear under INDEX: PLAINTIFF'S EXPERTS.
14.
It is also important to mention that M. Motaung in the email headed:
RE: THIRD PARTY CLAIM: M ANTHONY dated 22 April 2015 12:36PM
addressed to Jevounne Le Roux says:
"Good day
The above matter refers
as
well
as
your email of the 2181 April 2015. Kindly note that the
defendant requires you to bring to court the Plaintiff's Educational
Psychologist
as
well
as
the Industrial Psychologist.
The rest of the experts
are
not required to attend
so
their reports are accepted".
Although the email came late, it
served the purpose because only Mr Wessel Jacobus Wessels from the
side of the plaintiff testified.
15.
The plaintiff filed 16 expert reports while the defendant filed only
2.
These reports are as follows:
1. Medico-legal report by Dr DA
Birrell (Orthopaedic Surgeon), dated 20 November 1-17
2. Addendum medico-legal report by Dr
DA Birrell (Orthopaedic Surgeon), dated 27 August 2014 17.1-17.2
3. Medico-legal report by Dr PB White
(Plastic & Reconstructive Surgeon), dated 9 October 2013 18-24
4. Medico-legal report by Dr JJ du
Plessis (Neurosurgeon), dated 10 December 2014 24.1-24.10
5. Medico-legal report by Dr HW Kluge
(Maxilla, Facial and Oral Surgeon), dated 4 June 2013 25-29
6. Addendum medico-legal report by Dr
HW Kluge (Maxilla, Facial and Oral Surgeon), dated 17 November 2014
29.1
7. Medico-legal report by Dr K
Carpenter-Kling (Ear, Nose and Throat Surgeon), dated 13 May 2013
30-33
8. Medico-legal report by Dr M Mazabow
(Neuropsychologist), dated 22 April 2013 34-58
9. Medico-legal report by Dr P Gous
(Ophthalmologist), dated 16 January 2013 59-61
10. Medico-legal report by Dr D A
Shevel (Psychiatrist), dated 5 December 2013 62-80
11. Medico-legal report by Ms T
Holshausen (Occupational Therapist), dated 11 September 2014 81-115
12. Medico-legal report by Ms
Brigitte-Leigh Purchase (Educational Psychologist), dated 24 November
2014 116-139
13. Addendum medico-legal report by Ms
Brigitte-Leigh Purchase (Educational Psychologist), dated 24 November
2014 139.1-139.6
14. Medico-legal report by Wessel
Wessels (Industrial Psychologist), dated 2 April 2015 140-166
15. Medico-legal report by Greg
Whittaker (Actuary), dated 7 April 2015 167-171
16. Addendum medico-legal report by
Greg Whittaker (Actuary), dated 7 April 2015 172-177
16.
The defendant's expert reports and the relevant pages are as follows:
1. Medico-legal report completed by Mr
E Bloye, (Clinical Neuropsychologist), dated 6 May 2014 1-33
2. Medico-legal report completed by
Corne! Schoombee (Industrial Psychologist), dated 10 April 2015 34-55
17.
Index: Joint Minutes from pages 1-2; page 3 and pages 4-12
respectively comprise Joint Minutes of a joint meeting held between
Dr Mazabow and Mr E Bloye on 2 June 2014; Addendum to the joint
minute of their meeting held on 16 April 2015 and Minutes of a
telephonic meeting held between Wessel Wessels and Cornel Schoombee
dated 21 April 2015.
18.
The plaintiff, in support of her case, called Wessel Jacobus Wessels
the, industrial Psychologist, as her witness. The defendant's
counsel
in formed the court that the defendant would rely on the Joint
minutes. The defendant's case was closed once the plaintiff
closed
her case.
19.
Plaintiff's counsel furnished the Court with the plaintiff's heads of
argument for which I am thankful.
20.
Mr Wessel J Wessels testified telling the court that he is an
industrial psychologist and that he spent 30 years in the Human
Resources field and in the Corporate environment where he held
extensive positions in large corporations. He practised in the
medico-legal field for the last 12 years. He has, many times,
assisted the courts with his testimony and has produced medico-legal
reports in excess of a thousand. His expertise was not challenged.
21.
Mr Wessels prepared his report with the benefit of having seen other
medico-legal reports filed in the matter. It is common
cause that the
plaintiff is a student and that she lives with her parents in
Silverton. The plaintiff matriculated from Pretoria
High School for
girls in 2010 and obtained three distinctions. According to Mr
Wessels, the plaintiff held no leadership positions
during her school
days.
22.
Mr Wessels testified that the plaintiff passed her BA (Political
Science: International relations) degree in 2013. The results
of her
LLB degree first year of study in 2014 reveal that she failed two
subjects and was not allowed to write two more subjects.
This,
according to the witness demonstrates the extent of the brain injury
that she sustained in the accident. The joint minute
of Dr M Mazabow
and Mr E Bloye, the neuro psychologists demonstrates that the
plaintiff sustained "a significant traumatic
brain injury"
and that the prognosis for her "neuro psychological
difficulties is poor, and psychotherapy will not
resolve these".
The two experts agree that the most reasonable explanation for the
plaintiff's "areas of neuropsychological
difficulty is the
traumatic brain injury sustained".
23.
Mr Wessels testified that the plaintiff, prior to the accident, had
above average intellectual capability which allowed for
good
foundation for tertiary studies at an advanced level. The witness
testified that the plaintiff's injuries would have a definite
curtailing efffect to her productivity both at university and in the
work place. He referred to paragraph 3.15 of Brigitte Purchase's
(the
Educational Psychologist) Addendum report wherein she states that her
views remain unchanged "that while Monique's performance
on this
assessment indicates that her intellectual functioning remains within
the average range, subtle difficulties remain which
may compromise
her productivity both at university and in the work place". The
plaintiff's difficulties, according to Brigitte
Purchase, include:
1. Variable attention and
concentration;
2. lmpulsivity;
3. Proneness to careless errors;
4. Ability to understand and decode
complex language which is particularly relevant to understanding
jargon and foreign language
terminology encountered in the legal
degree;
5. Increased irritability, frustration
and fatigue;
6. Social withdrawal and avoidance of
typical student life and activities;
7. Avoidance of extramural activities
just to keep up with her academic load;
8. Reduced self-confidence,
self-esteem and independence; and
9. Increased stress and anxiety with
an ongoing fear of traffic and avoidance of learning to drive.
24.
Mr Wessels testified that the plaintiff, according to the educational
psychologist and the neuro psychologists, having sustained
a
significant traumatic brain injury, will have subtle difficulties
"which
may
compromise her productivity both at university
and in the work place". Her work capacity, it is submitted, "is
expected
to be at a reduced level compared to the pre-accident
scenario due to the presenting variability in attention and
concentration".
Mr Wessels testified that the educational
psychologist's view is that the plaintiff's academic record discloses
that her university
results are not in keeping with her pre
morbid results. This, according to the educational psychologist,
implies that the
plaintiff will need an additional year at University
to complete her degree which, in turn, will result in her entering
the labour
market at least a year later.. This, because the plaintiff
will need more time to absorb tertiary study material than she would
prior to the accident. The Industrial psychologists agree with this
view in their joint minute.
25.
Mr Wessels testified that the medico-legal reports reveal that the
plaintiff will not be as effective as she was prior to the
accident.
She will not have the same productive capacity as uninjured persons
and other candidates that she will have to compete
with for work and
employment. This, according to him, will have impact on the plaintiff
compared to other young graduates when
they submit their CV's.
26.
The witness, in his 30 years of involvement in corporate life, was
tasked with recruitment and employment for virtually all
positions in
the industry including the legal profession. In a legal environment
according to him, university performance is a
very good indicator of
future success. He testified that a work environment entails content
complexity of the studies and being
able to apply such in the work
environment. The better the results, according to him, the better the
chances of being selected.
How the degree was attained, according to
him, becomes crucial and key.
27.
Mr Wessels testified that the fact that the plaintiff has to exert a
lot more time to attain good results cuts into her free
time.
28.
One, in a corporate world, looks at how balanced a person's profile
is. This includes checking if there was interest in other
spheres of
life and what other contributions were made, e.g. community
involvement in terms of social environment; religion; family
life;
recreation etcetera. The witness testified that the more complete a
balanced profile is, the better the chances of being
able to deal
with challenges that present themselves in work and corporate
environment.
29.
The witness testified that studying never stops as getting a degree
is but a starting point of a career. There is greater pressure
in
digesting complex material and application of knowledge makes the
difference. Pressure and demand for performance be it in a
corporate
environment or in a practice, according to the witness, has become
relentless and very demanding. Full-time study, according
to him, is
a protected environment where the only demand is to complete the
material. The demand in a work environment is substantially
more. One
deals with people, applies the knowledge and manages conflicts while
being self-assured, confident, goal driven and directive.
The
plaintiff, according to Mr Wessels, will struggle more in the working
environment. His further testimony was that the plaintiff
present's
with anxiety and depression. The neuro psychologists, in their joint
minutes, agree that this may, contribute to her
difficulties. With
pressure and placed under stress struggling to complete and deliver
at maximum productive capacity may result
in depression and anxiety
becoming a curtailing factor lessening the capacity to perform.
30.
The struggling of the plaintiff at the entry level, according to the
witness, has a profound effect on her future growth and
also has
prolonged effect on career growth meaning that longer time, if at
all, will be needed.
31.
Asked how the plaintiff's difficulties may affect remuneration, he
answered that remuneration was divided into guaranteed and
variable
sections. The witness testified that the plaintiff would lose in both
instances. In guaranteed section, according to the
witness, the
plaintiff may lose as a result of slow growth. Variable section has
performance bonuses, share allocation and profit
sharing to mention
but a few. Variable is purely performance driven hence the saying "No
performance no sharing". The
witness testified that working in a
firm of attorneys or partnerships is purely result driven. A partner
who fails to make it like
the others, according to him, is usually in
trouble. The difficulties, according to the witness, would affect the
plaintiff in
all the areas of her working life if she was
self-employed.
32.
The industrial psychologists agreed that the legal profession whether
as an attorney or legal advisor "demands,
inter alia,
but
not restricted to, high levels of concentration, attention to detail,
the ability to work through and digest large amounts of
complex
material, the ability to concentrate for extended periods of time,
the ability to work long hours, the ability to appear
before the
public, other colleagues, clients and effectively, to "think on
your feet" etcetera". The plaintiff’s
abilities,
according to Mr Wessels, appear to have been affected by the sequelae
of the accident considering "the opinions
of the experts as
referenced". This, according to the witness, may have negative
influence on the plaintiff’s productive
capacity and the level
of earnings. The plaintiff may experience slowed career progression
as she according to the witness, may
not be able to compete equally
with others in the legal profession.
33.
Based on the plaintiff's difficulties, the Industrial Psychologists
recommended "that a substantially higher post-accident
contingency deduction be applied. They noted that the application of
contingencies is the prerogative of the Court and/or the legal
parties involved. Based on the legal reports, I am of the view that
the recommendation has merit.
PRE-ACCIDENT
34.
1. The Industrial Psychologists
acknowledge the plaintiff's qualifications as set out in their
respective reports.
2. Acknowledge the plaintiff's work
record as set out in their respective reports.
3. Based on her post-accident
educative achievements, the opinions of the Educational Psychologist
and the clinical (Neuro) Psychologists,
it is postulated "that
the plaintiff would, but for the accident, have been capable of
completing her degree unabated at the
end of 2017.
4.1. they: agreed that the plaintiff's
current reported intention is to become an Attorney.
4.2. "suggest that a straight
line increase be applied after completion of studies by start of 2019
CJ Schoombee ("CS")
allowing one extra year of study) at
career entry point R268 500 00 p.a (Paterson C1) until the career
ceiling by age 45 years
of R971 400 00 (Paterson 04) as this results
in a decreasing pattern of real increases in earnings, with annual
inflationary increases
thereafter. Retirement age to be taken at 65
years". They suggested further that for calculation purposes,
annual increases
be taken during January of every year. They further
agreed that appropriate contingencies deductions be considered and
applied
to integrate the chances of the plaintiff to in fact have
successfully completed the intended law degree by the time suggested
and to have progressed in terms of career earnings suggested.
POST-ACCIDENT
35.
The plaintiff, a full-time student at the time of the accident,
suffered no loss of earnings and there has been no further loss
in
terms of time lost. The following facts need to be considered when
assessing the plaintiffs claim keeping in mind that she remains
a
second year full time student studying towards her LLB degree:
1.
Lesser impact on residual work
and productive capacity.
Orthopaedic surgical-, Ophthalmology-,
Ear/Nose and Throat-, Occupational Therapy-and psychiatric opinions
reveal no truncation/restriction/negative
impact on the plaintiff’s
residual work and productive capacity.
2.
Direct impact on the residual
work and productive capacity.
The MR scan of the brain, according to
Neuro-Surgical opinion, reveals signs of a focal injury to the
posterior aspect of the right
parietal lobe which has not resulted in
neurological deficit but has aggravated the effect of the diffuse
brain injury.
The plaintiff, according to
Plastic
and Reconstructive Surgery opinion
, has surgical-trans
coronal scar with loss of hair-bearing skin, widened vertical scar of
the forehead, widened scar of the left
eyebrow and a scar of the left
upper lip. Further surgery is not recommended as all these injuries
cannot be improved.
Educational psychology opinion
is that the plaintiff, having regard to her intellectual capacity,
academic progress, motivation levels and commitment to her education,
should be able to complete her four year LLB degree. Psychotherapy
may assist with her symptoms of trauma, her lowered self-esteem
and
self-confidence, her stress and anxiety, her avoidance of the
opposite sex and social withdrawal and her fear of her learning
to
drive. The plaintiff's intellectual functioning remains within the
average range but there are subtle difficulties which may
compromise
her productivity in the work place. I referred to the difficulties
earlier on.
Joint Clinical (Neuro)
Psychological opinions
agree that the plaintiff sustained a
significant direct impact to her head associated with a traumatic
brain injury that was probably
mild-to-moderate and that a focal
frontal (orbito-medial) injury cannot be ruled out. The subtle
difficulties which the plaintiff
has have been referred to earlier.
The plaintiff experiences mild but chronic depressive symptoms
resulting from the cosmetic changes
sustained in the accident and
from her reduced smell-sensation and taste-sensation which have
impacted on the quality of her life.
She also experiences chronic
posttraumatic anxiety symptoms.
Industrial Psychologists
agree that the plaintiff should spend higher levels of time and
effort while studying to compensate adequately for her subtle
cognitive difficulties referred to above.
The Occupational Therapist
was informed by the plaintiff that she was unable to meet the time or
accuracy demands on a basic computer-typing work sample.
She could
not maintain adequate attention and concentration, consistency of
performance and management of impulsivity in responses.
36.
An actuarial calculation based on the agreement between the
Industrial psychologists was obtained. The calculation incorporated:
1. A 1 year delay in
the plaintiff’s entry into the labour market.
2. Differential
contingency deductions of 25% (scenario 1), 35% (scenario 2) and 45%
(scenario 3)
It was argued and submitted on behalf
of the plaintiff that following upon the plaintiff's injuries, an
appropriate application
of the disabilities and sequelae would be the
application of a 35% post morbid contingency deduction. The argument
and submission,
in the light of the evidence in its entirety seems to
have merit.
37.
This takes me to the issue of the correct contingency deduction to be
applied in this case. As shown in paragraph 36 above,
the actuaries
produced differential contingency deductions which involved three
scenarios, namely of 25%, 35% and 45%. The parties
agree that this
deduction should be done but disagree in respect of the correct
scenario that should be preferred and applied.
The view, on behalf of
the plaintiff, is that having regard to the injuries of the plaintiff
and the circumstances of the case
the second scenario should be
preferred while on behalf of the defendant, the view is that the
first scenario should be followed.
38.
General damages are the next aspect that deserves the Court's
consideration. Ms. Ferguson, on behalf of the plaintiff, argued
that
the circumstances of the plaintiff warrant an award of general
damages in the amount of R1 600 000 00. She referred the Court
to a
number of cases relevant to the issue. On the other hand Mr Westebaar
argued that R500 000 00 was adequate as an award for
general damages.
Ms. Ferguson submitted that there was no valid basis for regarding
the amount of R500 000 00 as appropriate in
the circumstances of the
plaintiff's case. Moreover, according to Ms. Ferguson, no case law or
law was referred to by Mr Westebaar
who merely relied on two of the
cases that were referred to on behalf of the plaintiff and the joint
minutes of the medical experts.
There seems to be merit in this
submission.
39.
The plaintiff suffered a number of injuries which include a bilateral
fracture; inferior blow out fracture; multiple disfiguring
facial
lacerations and open wounds. The radiological examination revealed
fractures involving the frontal bones, nasal bones, maxillary
bones
as well as the right medial orbital rim with medial orbital blowout
fractures; bruising to the upper arm; broken and lost
teeth; a head
injury; severe scarring and disfigurement; a split pallet; a fracture
of the septum (nose); a soft tissue injury
of the right knee; a
surgical trans coronal scar with loss of hair bearing skin (over the
top of her head); concussion; and a moderate
concussive brain injury
that aggravated the effect of the diffused brain injury. A recent MR
scan revealed signs of a focal injury
to the posterior aspect of the
right parietal lobe.
40.
To treat the plaintiff, the following was done: The plaintiff was
admitted to the trauma unit at Wilgers Hospital with a GCS
of 14/15
and extensive open facial fractures; a CT scan of the brain and
facial bones were performed together with blood tests;
the plaintiff
was given an infusion for pain and admitted to the high care unit; a
cranio plasty and open reduction and internal
fixation of her facial
fractures was performed; facial lacerations were sutured, she
required blood transfusion; she remained in
hospital for eight days
after the collision and was discharged on 18 December 2011; a plate
was inserted in her pallet as well
as the implant for the lost teeth.
She was getting prosthetic teeth and was under treatment of a
prosthodontist and dentist; and
underwent physiotherapy with
breathing exercises and needed assistance to learn to walk.
41.
The following need to be borne in mind: The plaintiff is forced to
wear a plate in her mouth where her pallet burst. She has
a lot of
discomfort when she eats because there is a hole in her pallet with
one of the screws protruding through the hole. She
has extensive
facial scarring, a 10cm area below her right knee is numb and lack
sensation; it is envisaged that she may develop
neck symptoms; she
initially could not smell and taste; she has developed mood swings
and has become irritable which, according
to Dr du Plessis, could be
as a result of the injuries to her frontal lobes; she is less
outgoing and more reserved; she has become
forgetful and
self-conscious about her appearance; her sense of taste has changed.
She sustained significant direct impact to her
head, had significant
confusion, disorientation and amnesia (with vomiting) an indication
of a mild to moderate concussive injury;
she was highly self-
conscious about her scarring and experienced post traumatic
stress feeling vulnerable and fearful when
she returned to
University; the indication, according to Dr Mazabow, is that she
sustained a mild to moderate concussive brain
injury which has
resulted in subtle neuro-psychological difficulties which will be
exponentially greater in the work context and
Dr Shevel diagnosed
mild chronic psychological adjustment difficulties secondary to a
motor vehicle accident with associated physical
injuries.
42.
Further operations for the repair of the plaintiff’s palatial
fistula are envisaged. The plate and screws through maxilla
facial
and oral surgery need to be removed. Placement of implants of teeth
will be required together with bone orbmentation. One
week's absence
will be required for a prosthodontics for dental reconstruction and
implants. The reconstruction of the anterior
maxilla with restoring
of function is also envisaged. Finally she will require
psychotherapy.
43.
The plaintiff has lost her earning capacity due to the neurocognitive
and neuropsychiatric sequelae of the concussive brain
injury. For the
plaintiff to successfully make it at tertiary level and work,
increased levels of time are required because she
needs to spend more
time and effort studying than she did in the past as she is now slow
in her learning and processing of information.
She appears to have
developed a tendency of sleeping in the afternoon despite having
had a good night's rest which used not
to be the case before the
accident. The plaintiff's subtle difficulties referred to in the
reports and this judgment impel her
to compensate adequately for them
by spending higher levels of time and effort in order to prevent
errors. This, it is submitted,
explains why she tires rapidly. The
evaluations of the plaintiff confirm this. She,
as a
result,
has to repeat information and double check her work to avoid errors.
It is feared that the plaintiff is likely to be more
prone to errors
and to performance inconsistency. The occupational therapist observed
that the plaintiff presented with inability
to meet the time or
accuracy demands on a basic computer typing work sample.
Increased fatigue ability was also observed together
with
difficulties in meeting inherent worker characteristics common to
most work environments. It is envisaged that the plaintiff's
work
capacity will be at a reduced level compared to the pre-accident
scenario due to the presenting variability in attention and
concentration.
44.
The educational psychologist has noted that the plaintiff's academic
record reveals that her University results are not in keeping
with
the pre-morbid results. This makes it more probable that she will
require an additional year at University to complete her
degree. What
appears worrisome is that when applying for appointment as a
candidate attorney, prospective employers will immediately
pick it up
that she took additional years to complete her degrees, that she did
not participate in extra-curricular activities
or volunteer to assist
in outreach programmes or legal aid clinics.
45.
The assessments conducted reveal that while her intellectual function
remains in the average range subtle difficulties referred
to above
remain and these may compromise her productivity in the work place.
Some of the factors which affect her work capacity
negatively are,
inter a/ia,
variable attention and concentration, impulsivity,
proneness to careless errors and her ability to understand and decode
complex
language e.g. understanding jargon and foreign language
terminology used in a legal degree. The plaintiff, it is noted and
submitted,
has inabilities or challenges referred to above which may
result in her not being able to compete equally with others in the
legal
profession and she may in that event experience slower career
progress.
46.
The industrial Psychologists confirm the plaintiff's challenges and
inabilities outlined above. Dr M. Mazabow and Mr E. Bloye
in their
addendum to their joint minutes noted the recent MRI brain scan
findings of right high parietal gliosis and residual signs
of
multiple punctate haemorrhages as well as the neurosurgeon's opinion
that these are post-traumatic in nature. They further noted
the
neurosurgeon's grading of a moderate concussion brain injury
aggravated by focal right parietal damage as well as his opinion
that
the plaintiff's personality changes could be due to frontal lobe
damage. They, as a result, agreed that:
1. The traumatic
brain injury sustained was significant;
2. The most
reasonable explanation for the plaintiff's areas of
neuropsychological difficulty is the traumatic
brain injury
sustained;
3.
anxiety/depression may contribute to the plaintiff's difficulties but
are not the primary cause of those difficulties;
4. The prognosis for
the plaintiff's neuropsychological difficulties is poor and that
psychotherapy will not resolve
these.
47.
The industrial Psychologists, W. J Wessels and C. J Schoombee, after
considering the plaintiff's injuries and the circumstances
of her
case, agreed and based on their considerations, recommended that a
substantially higher post-accident contingency deduction
be applied.
They also acknowledged that the application of contingencies is the
prerogative of the Court and the legal parties
involved.
48.
This then takes me to the issues of the contingency deduction and
general damages. I have, above referred to the aspects which
the
actuarial calculation incorporated based on the agreement reached
between the Industrial Psychologists.
49.
The issue of contingency additions or deductions has been dealt with
in the famous case of
Southern Insurance Association v Bailey NO
1984 (1) SA 98
(A).
The court, in this case, stated that a judge
is not tied down by inexorable actuarial calculations where the
method of
actuarial calculation is adopted and that the
judge
has a wide discretion to award what he considers right. The court,
according to the case, in exercising the discretion considers
the
making of a discount for contingencies or the vicissitudes of life as
one of the elements. The elements which the court must
consider
include such matters as the possibility that the plaintiff may in the
result have less than normal expectation of life
and that she may
experience periods of unemployment by reason of incapacity due to
illness or accident, or to labour unrest or
general economic
conditions. It must be borne in mind that the amount of any discount
varies according to the circumstances of
each case. It clearly is
evident that the rate of the discount cannot be assessed on any
logical basis because the assessment,
in the main, is arbitrary and
depends on the trial Judge's impression of the case. (See:
Legal
Insurance Company Ltd v Botes
1963 (1) SA 608
(A) at 614F and Van der
Plaats
v
South African Mutual Fire and General
Insurance Company Ltd
1980 (3) SA 105
(A) at 114-115)
.
50.
Windeyer J, in
Bresatz
v
Przibilla
[1962] HCA 54
;
(1962) 36
ALJR 212
(HCA) at 213
stressed that each case depends upon its
own facts. According to the Judge
"all 'contingencies'
are
not adverse":
All
"vicissitudes"
are not
harmful. Indeed the circumstances of cases differ and this is a very
important consideration.
51.
It was submitted on behalf of the plaintiff that contingency
deductions or additions although deductions, in practice, are usually
in issue, are adjusted upward or downward depending upon the nature
of the underlying assumptions. The more liberal the underlying
assumptions, the submission proceeded, the higher the contingency
deductions will be, and the more conservative the underlying
assumptions, the lower the contingency will be.
52.
In support of the submission that a substantially higher
post-accident contingency deduction be applied; and in support of the
plaintiff's claim for general damages in the amount of R1 600 000 00,
the Court was referred to a number of cases by the plaintiff.
The
defendant only referred to two cases.
53.
I have duly considered the cases dealing with contingency deductions
and comparable awards in respect of general damages that
the Court
was referred to.
54.
Algorithm Consultants and Actuaries, as already shown above, have
three scenarios in their calculations of the plaintiff's future
loss
of earnings and earning capacity. The value of the plaintiff's income
uninjured has been taken as R11 464 145. The contingency
deduction of
15.00% has been applied in respect of her income uninjured in the
three scenarios. 25.00%, 35.00% and 45.00%, respectively,
have been
applied in the contingency deduction post-accident in the three
scenarios. The total net loss in respect of the three
scenarios
amounts to R1 539 683, R2 633 661 and R3 727 640 respectively.
55.
The amount of R1 539 683, according to the submission, on behalf of
the defendant, should represent the plaintiff's future loss
of income
and earning capacity. It was further submitted on behalf of the
defendant that R500 000 00 constitutes reasonable general
damages for
the plaintiff. The submission, on behalf of the plaintiff, on the
other hand, is that scenario 2 properly represents
the plaintiff's
future loss of her earnings and earning capacity. According to the
submission, the true total net loss of her earnings
and earning
capacity as calculated by Algorithm Consultants and Actuaries should
be the amount of R2 633 661. This submission is
persuasive,
convincing and has substance. Having regard to the nature and
circumstances of the plaintiff's case. I am of the view
that scenario
2 is appropriate as it properly accounts for all the factors that
should be considered in the determination of post-accident
contingency to be applied. The amount of R500 000 00 suggested as
general damages, in my view
,
is not adequate.
56.
Coming to the general damages, I have as shown above, paid due regard
to the cases that the Court was referred to. Having regard
to the
nature and circumstances of the plaintiffs case, I am satisfied that
the amount of R1 600 000 00 which I regard as reasonable,
fair and
adequate, in respect of general damages, adequately compensates the
plaintiff.
57.
The defendant, in my view, must be ordered to pay the plaintiff an
amount of R4 383 313.61 made up as follows:
1. Past medical expenses: Care giver
R149 652.61
2. Future medical and hospital
expenses
Section17(4)(a)
Undertaking
3. Future loss of earnings and earning
capacity R2 633 661.00
4. General
damages
R1 600 000.00
TOTAL
R4 383 313.61
58.
As shown above, past medical expenses have been conceded. Future
medical and hospital expenses have been tendered.
59.
The plaintiff provided the Court with a draft order which I have
perused and amended with which I am satisfied. I have amended
the
draft order and the amount which the defendant has to pay the
plaintiff. The Draft Order together with annexure "A"
and
annexure "B" are attached to my judgment.
ORDER
60.
I make the following order:
The Draft Order marked "X"
as amended is made and order of the Court.
M.
W. MSIMEKI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION OF THE HIGH COURT,
PRETORIA
DRAFT ORDER
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
HELD
AT PRETORIA ON THIS THE 23
RD
DAY OF APRIL 2015 AT COURT 6E
BEFORE THE HONOURABLE JUSTICE LEDWABA (DJP)
CASE
NO: 27454/2013
In
the matter between:
ANTHONY,
M
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
HAVING
HEARD COUNSEL
for the Plaintiff and the Defendant and by
agreement between the parties:
THE
COURT GRANTS JUDGEMENT
in favour of the Plaintiff against the
Defendant in the following terms:-
1.
The Defendant shall pay the sum of R4 383 313.61 (four million
three hundred and eighty three thousand, three hundred and
thirteen
rand and sixty one cents) to the Plaintiff’s attorneys, Adams &
Adams, in settlement of the Plaintiff’s
claim, which amount
shall be payable by direct transfer to their trust account, details
of which are as follows:
Account
holder
: Adams & Adams Trust Account
Bank
: Nedbank
Branch
: Pretoria
Branch
code
: 198765
Account number
: [...]
Reference
: JPR/JLR/P335
2.
The Defendant shall furnish the Plaintiff with an undertaking in
terms of Section 17(4)(a) in respect of 100% of the costs of
the
future accommodation of the Plaintiff in a hospital or nursing home
or treatment of or rendering of a service or supplying
of goods to
her after the costs have been incurred and on proof thereof,
resulting from the accident that occurred on 10 December
2011.
3.
The Defendant is liable for payment of 100% of the reasonable costs
of the Trustee appointed in terms of paragraph 4 hereof,
in respect
of establishing a Trust and any other reasonable costs that the
Trustee may incur in the administration thereof including
his fees in
this regard, which shall be recoverable in terms of the Undertaking
issued in terms of Section 17(4)(a), and which
costs shall also
include and be subject to the following:-
3.1. 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 Estates Act,
Act 66 of 1965, as
amended from time to time, and shall include but
not be limited to disbursements incurred and collection commission
calculated
at 6% on all amounts recovered from the Defendant in terms
of the Section 17(4)(a) Undertaking;
3.2. 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;
3.3. All the abovementioned 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;
3.4. The costs associated with the
yearly audit of the Trust by a chartered accountant as determined in
the Trust Deed;
3.5. The appointment and reasonable
costs of a case manager.
4.
That the net proceeds of the payments referred to above as well as
the Plaintiff's truced or agreed party and party costs payable
by the
Defendant, after deduction of the Plaintiff's attorney and own client
legal costs (the "capital amount''), shall be
payable to a
Trust, to be established within six months of the date of this order,
which Trust will:-
4.1. contain the provisions as more
fully set out in the draft Trust Deed attached hereto marked Annexure
"A";
4.2. have as its main objective to
control and administer the capital amount on behalf of the Plaintiff;
4.3. CONSTANT WILSNACH will be the
first trustee with powers and abilities as set out in the draft Trust
Deed attached. His consent
is marked annexure “B”.
4.4. 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.
5.
Should the aforementioned Trust be established within the six
month period, the Trustee thereof 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 at that
stage.
6.
Should the aforementioned Trust not be established within the
six month period:-
6.1.
The
Plaintiff's attorneys are directed to approach the court within six
months thereafter in order to obtain further directives
in respect of
the manner in which the capital amount is to be utilized in favour of
the Plaintiff;
6.2.
The
Plaintiff's attorneys are 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 the Plaintiff with a registered
banking institution pending the finalization of the directives
referred to in paragraph 6.1 above;
6.3.
The
Plaintiff's attorneys are 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 4 to 7
hereof.
7.
Until such time as the Trustee is able to take control of the
capital sum and to deal with same in terms of the trust deed, the
Plaintiff's attorneys are authorised and ordered to pay from the
capital amount:
7.1.
any
reasonable payments to satisfy any of the Plaintiff'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;
7.2.
the
attorney and own client costs of the Plaintiff's attorneys;
7.3.
such
other amount(s) as may reasonably be indicated and/or required for
the well being of the Plaintiff and/or in her interest which
a
diligent
curator bonis
would have paid had such
curator
been appointed
8.
The Defendant must make payment of the Plaintiff's taxed or
agreed party and party costs on the High Court scale, which costs
shall
include the following:-
8.1.
The
fees of Senior-Junior Counsel on the High Court Scale, inclusive of
Counsel's full, reasonable day fees for 23 April 2015 and
the costs
for the preparation of heads of argument, if any;
8.2.
The
reasonable taxable costs of obtaining all medico-legal/ expert, RAF4
Serious Injury Assessment and actuarial reports from the
Plaintiff's
experts, which were furnished to the Defendant;
8.3.
The
reasonable taxable preparation, qualification and reservation fees,
if any, of. the following experts of whom notice has been
given,
being:-
8.3.1.
Dr
DA Birrell;
8.3.2.
Dr
JJ du Plessis;
8.3.3.
Dr
M Mazabow;
8.3.4.
Dr
Carpenter-Kling;
8.3.5.
Dr
DAShevel;
8.3.6.
Dr
P Gous;
8.3.7.
Dr
H Kluge;
8.3.8.
Dr
PB White;
8.3.9.
Ms
B Purchase;
8.3.10.
Ms
T Brown;
8.3.11.
Mr
W Wessels;
8.3.12.
Mr
GA Whittaker.
8.4.
The
costs of a consultation between the Plaintiff and her attorney to
discuss the terms of this order;
8.5.
The
reasonable taxable accommodation and transportation costs (including
Toll and E-Toll charges) incurred by or on behalf of the
Plaintiff in
attending medico-legal consultations with the parties' experts,
consultations with the Plaintiff's legal representatives
and the
court proceedings, subject to the discretion of the Taxing Master;
8.6.
The
allowances payable to witnesses in civil cases as published in
government Gazette No 30953 (No R394) dated 11 April 2008 and
specifically section 4 thereof shall not be applicable and the
Defendant shall make payment of the full fees in respect of attending
court and/or reservation to testify of Mr Wessel Wessels;
8.7.
The
above costs will also be paid into the aforementioned trust account;
8.8.
It
is recorded that Adams and Adams do not act on a contingency fee
basis for services rendered in this matter.
9.
The following provisions will apply with regards to the
determination of the aforementioned taxed or agreed costs:-
9.1.
The
Plaintiff shall serve the notice of taxation on the Defendant's
attorney of record;
9.2.
The
Plaintiff shall allow the Defendant 7 (SEVEN) court days to make
payment of the taxed costs from date of settlement or taxation
thereof;
9.3.
Should
payment not be effected timeously, the Plaintiff shall be entitled to
recover interest at the rate of 9% on the taxed or
agreed costs from
date of agreement or allocatur to date of final payment.
_____________________
BY
ORDER OF THE COURT
JPR/JLR/P335
ANNEXURE
“A”
DEED
OF TRUST
In
pursuance of a Court Order of the High Court of South Africa (GAUTENG
DIVISION, PRETORIA) dated 23 April 2015 In Case No. 2013/27454
in the
matter between M ANTHONY and the ROAD ACCIDENT FUND.
entered
into by and between
JEAN-PAUL
RUDD
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 M ANTHONY 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 for an indefinite period until
his 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 MORNIOUE ANTHONY, a person
suffering from a mental illness as described in
section 1
of the
Mental Health Care Act, 17 of 2002
or a serious bodily impairment
which prevents such person from generating sufficient income for her
own maintenance or managing
her own affairs, with regards to the
income derived from the Trust assets and the capital shall also be
used to the benefit of
M ANTHONY in such a way as the TRUSTEE may
deem appropriate but subject to the terms of this Deed of Trust.
Should M ANTHONY pass
away, the Trust's assets will be transferred to
the heirs of MORNIOUE ANTHONY as set out in the Will of M ANTHONY or
should M ANTHONY
not leave behind any will the assets will be
transferred to the intestate heirs of M ANTHONY 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 M ANTHONY physically and mentally for the remaining
part of her life;
5.2. The TRUSTEE will as far as
possible endeavour to utilise the funds of the Trust to comply with
the medical needs of the mentioned
M ANTHONY. In this respect the
TRUSTEE will in his discretion, and if he deems it necessary, be
authorised to make use of medical
advice in overseas countries and if
necessary, send the mentioned M ANTHONY to the foreign country if the
TRUSTEE in his discretion
deems it to the benefit of M ANTHONY 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 discretion to employ people and
to remunerate them for
services rendered to M ANTHONY where and if
necessary and affordable.
5.4. To do anything that the TRUSTEE
in his discretion deems necessary for the general wellbeing of the
mentioned M ANTHONY and
the TRUSTEE will be entitled to incur such
reasonable costs as he deems necessary in this regard in his 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 M ANTHONY
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 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 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 in relation
to his 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 may deem proper in his
discretion. Without detracting from the
generality of the aforementioned clause, he 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 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 discretion, it is deemed to be reasonably in the
interest of the beneficiary. He 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
practises 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 professional services rendered without limiting
or reducing his
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 per1orm such
act himself does not detract from the aforementioned entitlement;
8.1.13.To utilise 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;
8.1.14.To exercise his 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
discretion and authority hereunder is not reduced where he directly
or indirectly has an
interest in such company or society neither will
such TRUSTEE due to his confidential relationship with the Trust be
obliged to
give account of any benefit, which accrues to him 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 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 in his 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 own benefit or the benefit of his or any other person's
estate. Without detracting
from the generality of the aforementioned
he will specifically not be entitled or authorised to appropriate or
to dispose of any
of the assets or income of the Trust as his own, as
he deems fit, lf he by doing so will benefit himself or his estate
directly
or indirectly. The TRUSTEE will furthermore not be
authorised to use or consume any of the assets of the Trust directly
or indirectly,
for his 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
will be entitled to pay
a reasonable salary or remuneration, which he
in his discretion deems appropriate, to such a person or persons.
Control and care
over the Trust’s assets shall 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 unless ordered otherwise by
the Court.
9.
BOOKKEEPING
9.1. The TRUSTEE shall keep a complete
set of accounting records with regard to the affairs of the Trust;
9.2. 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 shall:-
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 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 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 unless
ordered otherwise by the Court;
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 sole discretion may deem
appropriate;
11.5. To see to it that proper minutes
of all decisions made by him, 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. No amendment to the Trust Deed
may be made without the consent of the court;
11.10. To see to it that the set of
books that he shall 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.
11.12. To submit a report to the
Master annually regarding the financial position of the Trust,
investments made and on all other
aspects required as if he was
appointed as a
Curator bonis
for M ANTHONY.
11.13. To disclose to M ANTHONY upon
request and in his annual report to the Master any benefit gained by
him arising from any investment
of the cash assets of the Trust other
than his remuneration on Income as provided for herein.
12.
APPOINTMENT OF THE TRUSTEES
The
following people will be disqualified to act as TRUSTEE of this
Trust:-
12.1. Any person who is disqualified
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 trust due to his/her
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/her own affairs.
13.
TERMINATION OF THE TRUST
The
Trust will be terminated when the mentioned M ANTHONY passes away or
when the Master of the High Court of South Africa or a
competent
Court 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 M ANTHONY, 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 M ANTHONY and If the mentioned M ANTHONY dies
intestate, the net 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
shall 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/her professional
capacity;
15.3. The TRUSTEE shall bear the
responsibility and liability for his acts or omissions where he fails
to show the degree of care,
diligence and skill as required as
determined in the Trust Property Control Act, 57 of 1988.
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/her
competencies which
he/she 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/her 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 mentioned M ANTHONY, the TRUSTEE will be entitled to a
yearly fee as stipulated in the relevant
legislation of the Republic
of South Africa pertaining to a
Curator bonis.
17.
MARRIAGE
All
the benefits that M ANTHONY 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 MORNIOUE ANTHONY
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 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 APRIL 2015.
AS
WITNESSES
:
1.
2.
DONOR
SIGNED
at PRETORIA on this the ________ day of APRIL 2015
AS
WITNESSES
:
1.
__________________
__________________
TRUSTEE
2.
__________________
ANNEXURE
“B”
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: 27454/2013
In
the matter between:
M
ANTHONY
Plaintiff
And
ROAD
ACCIDENT FUND
Defendant
CONSENT
I,
the undersigned,
CONSTANT
WILSNACH
do
hereby consent to act as Trustee to
M ANTHONY
should the above
Honourable Court deem fit to appoint met as such.
DATED
at PRETORIA on the 20
th
of April 2015.
AS
WITNESSES
1.
__________________
__________________
CONSTANT WILSNACH
2.
__________________