About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 416
|
|
Van Rensburgh v Road Accident Fund (57977.2011) [2016] ZAGPPHC 416 (12 February 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
SAFLII
Policy
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA [REPUBLIC OF SOUTH AFRICA)
In the matter
between:
CASE
NUMBER: 57977 / 2011
DATE:
12 FEBRUARY
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
JANSEN
VAN RENSBURG, ANTON OBO
MARNOPLAINTIFF
And
ROAD
ACCIDENT FUND DEFENDANT
JUDGMENT
Mavundla,
J.
(
1)
This is a third party
claim, brought by the plaintiff in his personal capacity
and representative
capacity as the father of the minor child, Mamo Janse
Van Rensburg born on 3
July 1999 (hereinafter referred to as the minor
child, claiming
from
the
defendant,
damages
suffered
b
y
the
minor
child,
arising
from the injuries
sustained
from
a
motor vehicle collision
that
occurred
on
11
June 2010 at
approximately 16h
15
at
the R33, Modimolle Limpopo.
[2]This
is one of the matters which fell into the "cracks",
resulting in an
unduly
delayed reserved judgment, as
the result. This Court can do no more
than
apologise
to
the
parties
for
the
delay
occasioned.
[3]
The liability of the defendant arises from sl7of the Road Accident
Fund, which obliges the defendant "to compensate any
person
(third party) for
any
loss or
damages
which the third
party
has suffered
as
a
result of any
bodily injury or the
death of someone injury to any other person, caused by for damages or
loss suffered arising from anybody
injury.
[4]
In the
particulars
of
claim,
plaintiff
alleged that the
collision occurred
between a motor vehicle
bearing registration unknown to the
plaintiff ("unidentified
vehicle") driven by a person unknown to the plaintiff and a
motor vehicle bearing registration
number YVW731 GP driven by A
van Rensburg in which the
minor child was a passenger.
[5
]
The
parties reached an agreement
which was
made an order of the
Court by Ledwaba DJP, in terms of which it was ordered that:
"l.
The
i
ssues relating to future medical
expenses and merits are separated from all remaining issues of past
medical, general damages and
loss of earning capacity as quantum
i
n terms of Rule 33(4);
2.
The defendant concedes merits 100% in
favour
of the plaintiff;
3.1 The defendant is
ordered to provide an 100% undertaking to the Plaintiff in
terms of Section 17(a) of the Road Accident Fund
Act, Act 56 of 1966, for
the
costs of future accommodation of the Plaintiff in a hospital or
nursing home of treatment of or rendering of a services to the
Plaintiff / minor child
or
supplying of goods to the Plaintiff/ minor child arising out of the
injuries
sustained
by the minor in the motor vehicle collision which is the
causa
of
this
action, after such costs have been incurred and upon proof thereof.
4All issues
relating to or of the remainder of the quantum (issues of past
medical expenses,
general
damages and
loss of earning
capacity
are postponed
sine
die;
;;
5.
The defendant is ordered to pay the costs for
this portion of the third
party
claim
finalized
today
on
a
High
Court
scale:
5.1
such
costs to be up and including 25 October 2013;
5.2
further
i
ncluding
costs of senior-junior counsel Lourene Scholtz on the same basis as
set out
i
n par 5 and 5.
1
;
5.3
any previously reserved costs, herewith becomes
unreserved;
5.4
the plaintiff and minor is declared necessary
witnesses;
5.5
the
costs
of
all
expert
reports
served
in
terms
of
the
court
rules
in
support
of
this portion of the
claim;
6a.
The Plaintiff shall, in the event that the costs are not agreed serve
the Notice of Taxation on the Defendant's attorney of
record; and6b
The Plaintiff shall allow the Defendant
14
(Fourteen)
court days to
make payment of
the taxed
costs."
[6] In the
plaintiff's particulars of claim it was alleged that:
"
7.
The
minor
child
sustained
the
following
injuries:
7.1
open
fracture of the radius;
7.2
Open fracture of the first metacarpal;
7.3
Back contusion;
7.4
H
ead injury
8.
As a consequence of the injuries sustained by
the
minor:
8.1
The
minor had
to undergo medical
treatment
and
will in
future
have
to
undergo medical treatment, requiring
accommodation, medical goods and services as well as assistive
devices;
8.2
The
minor
has
suffered
a
partial
destruction
of
his incoming earning
capacity'
9
As a result of his bodily injuries, the plaintiff
and the minor have suffered damages
of R4 225
336.
15
made up as set out
below:
9.1PLAINTIFF
IN RESPECT OF PAST HOSPITAL
AND MEDICAL
EXPENSES R38
000,
00
The amount
represents an estimate insofar as plaintiff has
not as yet been placed in Possession of all
documentary evidence of
such
expenses
9.2
THE MINOR IN RESPECT OF ESTIMATED
FUTURE MEDICAL
EXPENSES UNDERTAKING
The minor will in
future have
to
undergo extensive
medical
treatment,requiring
accommodation medical
goods
and services, assistance and assistance devises and caregiving. The
extent of the costs of such treatment is not yet known
to the
plaintiff and the amount represents merely an estimate;
9.3
THE MINOR IN RESEPCT OF ESTIMATED
FUTURE
LOSS
OF EARNING
AND
INTEREFERENCE WITH
EARNING CAPACITY
GENERAL
DAMAGES Total
R2 986 942.
00
Rl 200
000. 00
R4224942.
00
Total
=
R4224942.00
Plaintiff pleads
that his injury is serious in nature and the injuries
sustained
constitute long
term impairment and loss of body function based on the narrative
test as is evident from the expert opinions of Dr
Kaplan, plaintiff s
appointed
General Practitioner. As the result, Plaintiff is entitled to
non-patrimonial damages.
Plaintiff has
complied
with
section 17(1)
A
and regulation
3(3)(a) and
3{3){b)(i).
10.
The
plaintiff
has complied with
the provisions of section 24 of the Act
and
the Road
Accident
Fund
Regulations
of
2008
prior
to
issue
of
summons.
Wherefore
plaintiff prays for judgment against the defendant in
the following
terms:
1.
Payment of the sum of R4 225 336,
15;
2.
Interest in
the
aforesaid amounts calculated at a rate of R15, 5% per annum
calculated from {14) fourteen days from date of judgment
to date
of payment;
3.
Costs
of suit;
4.
Further
and or alternative relief."
[7] During the hearing of the
matter, this Court was furnished with an affidavit of Mr Dune
Delport, an attorney from the firm of
the plaintiff's attorneys of
record in terms of section4(1) of the Contingency Fees Act,
stating,
inter
a/ia,
that:
"3.1 The above matter is
subject to a Contingency Fee Agreement, which is annexed hereto
marked Annexure "A";
3..2
The full terms of the settlement appear from the draft Order hereto
annexed
marked
Annexure "B";
3.3
The issue of liability
was settled on the basis that Defendant is liable to the Plaintiff
for 100% of the Plaintiffs proven or agreed
damages;
3.4
Defendant
has tendered an amount of R2 653 018. 50 in settlement of the quantum
of the plaintiffs claim; It is anticipated that
the amount that the
Plaintiff may obtain by
taking
the
matter
to
trial, rather
than
to
settle
the
matter
on
the
terms
and conditions as set out
in
the
draft Order, would be
very similar, as the
parties are not far apart in regard to the quantum of the claim;"
[8]
In casu,
counsel the defendant did not file medico legal reports.
Counsel for the defendant informed the court that he has carefully
studied the medico legal reports of the plaintiff and agrees
with the conclusions reached therein, as well as the amount
offered by the defendant, which in his view was in the circumstances
of this case. He assured the Court that he has extensively
researched
the authorities relating to damages claim as
in casu
and was of the view that the offer made by th defendant is
fair and reasonable.
[9]
At the time this Court decided not to make the draft proffered an
order of Court. Save for the medico legal reports of the plaintiff,
the defendant's medico legal reports, if ever such existed, were not
placed before the Court. It is hard to understand that the
defendant
would litigate without obtaining legal reports to counter or test the
correctness of the conclusions reached by the medico-legal
experts of
the plaintiff. I am in no way suggesting anything untoward on the
part of the plaintiff's medico-legal experts. However,
in matters
involving huge claims running into several millions, one would expect
of the defendant to give proper instructions to
its attorneys,
including getting their own medico legal experts so as to come to
informed decisions as regards advising the defendant
properly.
(10] The tendency of
the defendant, in litigating without obtaining medico legal reports,
and merely send its counsel to Court,
is like sending a boxer into
the ring with one hand tied to the back and tell him to do his best
in the ring. In many instances,
the defendants' attorneys and or
counsel will tell the Court that they do not have instructions and
leave the matter to the discretion
of the Court. Sometimes the claims
handler is not available to give instructions. Such conduct on the
part of the defendant must
be discouraged. I hope that the senior
claims handlers of the defendant would look into this aspect.
(11]
The question of a compensation award is a matter of the discretion of
the Court.In the matter of
Pitt
v
Economic Insurance Ca Ltd
1957
(3) SA 284
(D) at 287E-F
(cited with approval
in
De Jongh
v Du Pisanie
NO
2005
(5) SA 457
(SCA) at page
476C-D ((2004]
2
ALLSA
565
(SCA) at
582b-c)
Holmes
J
held
that:
"The
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.
(12]
In casu,
the
minor child was
10
years
old
at the time of the accident.
He was
admitted
at
hospital
where
he
was
admitted
for
two
days
in
ICU
and
spent
about
7(seven)
days in the general ward. He suffered the following injuries from
the
records
of
Muelmed
Medi-Clinic:
the
minor
had
concussion
without
open
wound
and
cerebral oedema. He also has on-going headaches. According to
the
neurosurgeon
Dr
H
J
Edeling
the
injuries
sustained
were
soft
tissue
injuries
of
the
Neck
and Back;
various
cutaneous injuries; head injuries
with moderate
traumatic
brain
injury and psychological trauma.
His injuries resulted in
a post-traumatic organic brain syndrome; chronic cervical headaches;
chronic back pain and physical impairment;
episodic
vertigo
and
mood
disorder.
(13]
Dr Edeling has further stated in his report that the organic
neurological
sequelae
of
his brain injury have stabilised and become permanent. The
post-traumatic
headaches and spinal problems have become chronic and are expected to
persist long term. The doctor has made his
estimated future medical
costs that should be provided for the minor child. These are
generally covered by the s17 certificate.
The doctor has also opined
that whereas the neurological status is expected to
remain
stable, it is possible that his learning impairment and mental
disability will
become
increasingly apparent as he ages. It is unlikely that he will develop
the mental capacity for full independent living or
full independent
management of
his
personal,
financial or legal affairs. A 2% to 5% lifetime risk of late
post-traumatic epilepsy
is
anticipated. According to the educational
psychologist
the minor will still
be
able to obtain an NSC or technical equivalent like N3 certificate.
Once he is placed in a technical college environment, where
he will
be able to learn more vocational skills. I bear in mind that
according to the Educational Psychologist Karin Trollip the
minor
when assessed in 2013 his parents were getting divorced.
This
must also have contributed negatively, in my view, to his scholastic
performance and his behavioural moody tendencies. At the
time of
assessment he was in grade 8 month 9, a learner who had not failed
any of his grades. His father obtained an N3level of
education while
his mother obtained grade 10 level of
education
[1]
[14]The
Court was presented with a draft order in terms of which an amount of
R2
653 018.65 was
to
be
paid
by
the
defendant to
the
plaintiff.
Where
parties reach
an
agreement, but still bring the matter
to
Court, surely the Court cannot merely
rubber
stamp every agreement brought before it. Where it
involves
moneys to be paid from public coffers, then the parties must persuade
the Court why it
should
make
the agreed amount an order of Court.
In casu,
the
Court is not aware as
to
how the amount has
been
reached. I do bear in mind the fact that the minor
will
achieve
N3
certificate
and
progresses
with
vocational
training.
(15]In
the exercise
of
my discretion,
and
considering
the
extent
of the
injuries suffered
by the child, and the
fact that he would achieve N3 later in life, I am of the view that
the award set
herein
below would
adequately
compensate
for the injuries and
sequelae thereof, "without pouring out largesse from the horn of
plenty at
the
defendant's expense."
(16]
In
my
view, taking into
account contingencies, I
would make an allowance
of 15% in
that
regard and adjust
the
agreed
amount
with this
percentage; this
brings the
amount
to be paid by
the
defendant to
the
plaintiff
in
an
amount of R2
255 065.85.
The
draft order is accordingly
amended to reflect that
the defendant
is
ordered,
inter alia, to
pay
the
plaintiff an amount of R2 255 065. 85, on or before 25 March
2016.
[13]
In the premises, the draft order as amended is marked X and made an
order
of
Court.
N.M.
MAVUNDLA
JUDGE
OF
THE HIGH COURT
DATE
OF
HEARING:
16
/
03
/2015
DATE
OF
JUDGMENT:
12
/
02
/2016
APPLICANTS'
ADV : ADV
J.
N.
DE
VOS
SC
INSTRUCTED
BY DE BROGLIO INC
SECOND
RESPONDENTS' ADV :ADV B.R. MPHELA
INSTRUCTED
BY: A. P. LEDWABA INC
I N TH E H IG H COU RT OF
SOUTH AFRICA (GAUTE NG DIVISIO N, PR ETORIA)
Case
No : 57977/2011
PR
ETORIA,ON THIS 16th DAY OF M ARCH 2015
BEFO RE THE H ON
OURABLE J USTICE MAVUNDLA
In the matter between:
JA
NSEN
VA
N
RE
NSBUR
G, ANTON
obo MARNO
Plaintiff
and
ROAD
ACCIDENT
FUN
D
Defendant
HAVING
heard counsel for the parties, it is ordered that:
1.
Defendant
shall pay Plaintiff in his personal capacity and in
his
representative
capacity as father and natural guardian of his
minor son,MARINHO JANSEN
RENSBERG,born on 3 July 1999(“Mamo”) a capital amount of
R2255O65.85 in dilictual damages,
on before 25 March 2016.
2. 2.1 The afotresaid capital
amount shall be paid into the Plaintiff's attorneys' trust account,
the particulars of which are:
De
BroglioInc. Trust Account
Nedbank : Business Northrand
Branch Account Number :[ 14....]
Branch Code : 146 905 Ref :
J207 through means of a direct transfer on or before 28 April 2015.
2.2. Should the Defendant not
pay the aforesaid amount on or before the due date for payment
thereof, Defendant will be liable for
interest on such amount at the
rate of 9% per annum from the due date to date of payment, both days
inclusive.
3.
Defendant
shall
furnish the Plaintiff and/or the trustee referred to in paragraph 5
below, with an undertaking in
terms of Section
1
7(4)(a)
of the Road Accident Fund Act, 56 of
1
996
("the undertaking"), to reimburse the Plaintiff and/or the
trustee for the cost of the future accommodation of Marne
in
a hospital or nursing
home, or treatment of, or rendering of a service, or
the
supplying of
goods to him, arising out
of the injuries he sustained,in the motor vehicle accident that
occurred on 11 June 2010, after such costs
have been incurred and
upon proof thereof.
I
n
addition, the undertaking shall include the costs
of the
creation
of the
trust referred
to in paragraph 5
below,
the costs
of annually obtaining a
security bond
as
required
and the cost
of the
trustee in
respect
of
the administration of
the
trust, limited to
the costs recoverable by
a curator bonis in
accordance with the
statutory tariffs published
from
time to time.
4.The
Plaintiff's attorneys of record shall retain the aforesaid amount,
nett of the attorney's costs and
nett of the amount recovered in
respect
of Plaintiff's personal claim for past hospital and
medical
expenses,
in an interest-bearing account in terms of Section
78(2)(A)
of
the Attorneys Act, for the benefit of Marna, pending the creation of
a Trust referred to in paragraph
5 hereunder, and the issuing
of
letters
of authority
5.The
Plaintiff's attorneys of record shall pay the amount set out
in paragraph 4 above,
together with any accrued interest, over to the trustee of a trust
which is to be created within four months
from
the
date of this
Order, and in respect of which trust, the following shall
apply:
5.1.the
trust shall be created in accordance with the trust
deed
which
shall contain the
provisions set
out
in
Annexure "A"
hereto, and which is to
be established in accordance
with
the
provisions of the Trust Property Control Act, No. 57 of 1988, in
favour of Marna;
5.2.the
trust shall have as its trustee, Standard Trust
Limited,
registration number
1880/000010/06, with those powers
and
duties as set out in Annexure "A" hereto;
5.3.
the
trustee
shall:
5.3.1.be
entitled, in the execution of its duties
and
fiduciary
responsibilities towards the
beneficiary of the trust, to have
the attorney and own client costs and disbursements of the
Plaintiff's attorneys of record taxed,
unless agreed;
5.3.2.be
obliged to render security to the
satisfaction
of
the Master of the High
5.3.3.
be entitled to administer
on behalf of Marno,
the
undertaking referred
to in
paragraph 3
above and to recover the
costs covered
by
such undertaking on behalf of Marno for the benefit of the
trust;
5.3.4.
at all times administer
the trust to the benefit
of
Marna;
5.4.
the
trust shall not be capable of being amended without
the
leave
of the
Court.
6.
I
n
the event of the trust not being
created within four months from the date of this Order,Plaintiff and
his attorney are directed
to approach this Court within two months
after the expiry of the first period of four months, to obtain
further directions with
regard to the
manner in which the capital
amount should be further administered on behalf of Marno.
7.Defendant
shall pay Plaintiff's taxed or agreed party and party
costs
on
the High Court scale, such costs will include, but are not limited
to:
7.1.the
costs attendant upon the obtaining of payment of the
full
capital amount referred to in paragraph 1above;
and
the
costs of all Plaintiff's expert medico-legal reports, as
well as the reasonable
taxable, qualifying and reservation
fees,
if any, of such experts;
and
7.3.
the
costs of the actuarial reports of Mr. van Kramer; and
7.4.
the costs of the
experts' joint minutes;
and
7.5.
the
taxed or agreed costs of senior counsel;
and
7.6
Plaintiff and
Marna are declared necessary
witnesses.
8.
Plaintiff
shall, in the event that costs are not agreed upon, serve the
Notice of Taxation on
Defendant's attorneys of
record.
9.
Plaintiff
shall
allow Defendant
1
4
(fourteen)
Court
days after
taxation
to make
payment
of such
taxed
costs.
10.
This
Order must be served by the Plaintiff's attorneys on the Master of
the High Court within
30
days from the date of
receipt of this Order
from
the Registrar in typed form.
BY
THE COURT
R EGISTRA R
For
Plaintiff : For Defendant :
Adv.
J .N .
De Vos SC
Standard
Bank
DE
BROGLIO INC
127
Jan Smuts
Avenue
Parkwood
Johannesburg
Marna
Janse
van
Rensburg -
[
Id:
9..]-
04
March
2015
We
confirm that Standard Trust Limited will take up the appointment as
trustee of the trust to
be
created for the benefit of Marna Janse van
Ransburg.
We
place on record that as trustees, Standard Trust Limited should be
entitled to levy our full tariff
of fees for the
administration of the
trust
I
hereby declare Standard Trust Limited is prepared
to:
•
Create
a trust for the benefit of the beneficiary to receive and manage the
assets from
the
RAF alternatively to assist as curator in the
matter.
•
Act
as trustee to manage and invest the assets according to the
guidelines of the court order, for the benefit of the
beneficiary.
•
Act
as curator, should it be required for the wellbeing and personal
affairs of the patient
•
Assist
the family where necessary to manage the financial affairs of the
beneficiary.
Yours
faithfully
Jean
Volsoo
Standard
Trust
2n
11
Floor Rosebank
Corner 191
Jan
Smuts
Avenue Psrktown
Johannesburg 2193
PO
Box 1291
Parklands
2121 Soulh
Africa
www.standardbank.co.za
Tel.
+27 (0)11 283-1100 Fax: +27 (0)11 283-1111
Star.de.rd
Trust Limited fReg No. 1680/000010/06) Aulhcrl5tld fir.ancial
scrvii:e11 providar
Difedorn:
S
Lattchand•,
AC
Amotd.
M Nlenabatcompany
Sacretary. S
wae1ze123/l'.W2013
•
Execuli\18
Directer
I
N
THE
HIGH
COURT OF SOUTH
AFRICA (GAUTENG DIVISION,
PRETORIA)
"A"
Case
No : 57977/2011
In the matter between:
J
ANSEN
VAN RENSBURG,
ANTON
obo MARNO
Plaintiff and
ROAD ACCI DENT
FUND
Defendant
DEED OF TRUST
-MEMORANDUM OF
AGREEMENT
ENTERED INTO BY AND BETWEEN
De BroglioIncorporated
represented by Michael de Broglio (hereinafter referred to as the
"Donor")
And
STANDARD Trust Limited,
registration number 1880/000010/06, represented by Jean Vosloo
(hereinafter referred to as the "Trustee")
WHEREAS
the Donor is obliged in terms of an order of the High Court of South
Africa, Gauteng Division,Pretoria,under case number
57977/2011 dated
16 March 2015, to create a Trust for the benefit of the Beneficiary
upon the terms and conditions set out below;AND
WHEREAS the Trustee
is willing to act as Trustee and to accept the donation and to
administer it on behalf of the beneficiary and
to utilise it in
accordance with the terms and conditions in this Trust Deed.
NOW
TH ER E FORE TH E PARTIES AGREE AS FO LLOWS:
1.
D
E
FI
NITIO NS
1.1
I
n
this Trust Deed, unless the
contrary appears from the context, the following expressions shall
have the
following meanings;
TRUST
the Trust created in terms of this Trust Deed;
TRUSTEE the originalTrustee
and any person succeeding the original trustee appointed in terms of
this Trust Deed;
CAPITAL
BENEFICIARY MARNO JANSEN VAN RENSBURG
INCOME BENEFICIARYthe Capital
Beneficiary;
BENEFICIARY the Capital-
and/or Income Beneficiary
TRUST ASSETSthe donation made
in terms of clause 4below
and
all assets, property or monies subsequently acquired in any manner
whatsoever and irrespective of the source thereof. The expression
"trust assets" includes gross income, net income and
capital.
VESTING DATE means the date on
which a Trust asset is being vested in and paid out or transferred by
the trustee to a Beneficiary
in terms of this Trust Deed.
1.2
Unless the contrary
appears from the context, words importing the
singular
shall include the plural and vice versa and words relating to
gender shall include the other
gender and bodies corporate and
words
relating
to
persons
shall include
bodies
corporate
and
vice
versa
.
1.3The
heading of the clauses in this Trust Deed are for convenience and
shall not be taken into account
in interpreting this Trust Deed.
2.
PURPOSE
OF THE
TRUST
The purpose of the Trust is
the creation of a Trust fund for the maintenance and benefit of the
Income and Capital Beneficiary of
the Trust.
3.
NAME OF TRUST
This Trust shall be known as the
MARNO JANSEN VAN RENSBURG
TRUST.
4.
DONATION
AND
VESTI
NG OF
RIGHTS
I
N TRUST
ASSETS
The donor hereby donates to the
Trustee the sum of R100-00 (one hundred rand) which shall vest In
the Trustee with immediate effect
and is to be held in trust and
administered in accordance with the provisions of this Trust Deed.
5.
ADDITIONS TO THE TRUST ASSETS
5.1
The
donor
shall
be
entitled
at
any
time
to
add
to
the
Trust
Assets
by making a donation, or
in any other
manner.
5.2
Any person shall be entitled to contribute to the Trust Assets but
the Trustees shall not
be obliged to accept such contributions.
5.3
All additions to the
Trust assets shall be subject to the provisions of this
Trust
Deed.
6.
APPOI
NTMENT OF TRUSTEES
6.1The
Trustee named at the commencement of this Trust Deed and
who
agreed
to accept such office, shall be the first Trustee of the
Trust.
6.2
The Trustee shall at all times be a company institution or
individual, which is a member of the Association of Trust Companies
of South
African
or an entity (with members of
management, staff, directors
and
shareholders)
independent of (and not related to) the beneficiary.
It
shall be the sole Trustee.
6.3
If
the
Trustee wishes to resign, it shall prior to its resignation taking
effect have nominated and
appointed a successor, failing which the
Master
may appoint a trustee, as contemplated in clause 6.2
above.
7.
POWERS
OF
TRUSTEE
The
Trustee shall, in the exercise of its powers and duties in terms of
this Trust Deed, have the power to deal with the Trust assets
as it
may reasonably deem to be in the best interest of the Capital
Beneficiary, including the power:
7.1
To acquire or purchase
right to or interests in movable or immovable property
(irrespective
of where it is situated),
stocks, shares,
participation bonds,
debentures, policies, syndications, unit
trusts,
mortgage
bonds over immovable property, and similar investments with life
assurance or listed companies;
7.2
To realize or amend any
investment forming part of the Trust Assets and
reinvest
the
proceeds;
7.3To
recover in the name of the beneficiary or of the trustee, any costs
from the Road Accident Fund for
which the latter is liable in terms
of
Section 17(4)(a)
of
the Road
Accident Fund
Act,
Act 56
of 1996 for
the
account of the trust and
for the ultimate benefit of the beneficiary.
7.4
PAYMENTS
OF
DEBTS
To
settle trust obligations from the capital and/orincome of the Trust.
ALIENATI
ON
OF
ASSETS
7.4.1
To
exchange, sell or lease any Trust Assets.
7.4.2
When
exercising the
right to sell Trust
Assets
such
sale may be by
private treaty, by public
auction, by public tender or in any other
manner
deemed fit provided a market related price is
obtained.
7.5
I
MMOVABLE
PROPERTY
To
purchase, exchange or sell immovable property in any other manner
and upon such terms and
conditions as may be deemed
7.5.2
To erect buildings and/or
other improvements on immovable property;
7.5.3
To maintain and, where
necessary, repair buildings or improvements
on
immovable
property of the Trust;
7.5.4
To sign and/or attest any
document pertaining to the alienations, sub-division, exchange, or
transfer and, to make applications,
consent to
any amendments,
cancellations, exemptions, reductions, substitutions or
other
actions relating to any deed or documents in connection with
immovable
property.
7.6
LEGAL
ACTIONS
To
institute or defend any legal action and to sign any power of
attorney and other documents required for such purpose.
7.7
BAN K
ACCOU NTS
To
open and operate bank accounts in the name of the trust.
7.8
BUSI N
ESS
To
conduct any business in the name of the trust for profit.
7.10
LETTING A N D H IRI N G
7.10.1
To let trust
assets, movable or immovable, upon such terms
and
conditions as the trustee may deem fit, to collect
the
rentals
and cancel agreements of
leases
7.10.2
To
enter into agreements of lease to hire any assets for use
by
any
of the trust beneficiary, upon such terms and conditions
as
may
be agreed with the
lessor.
7.11
I
NSOLVENCY
To
attend any meetings of creditors of any person who may be a debtor of
the trust, irrespective of whether such meeting relates
to
insolvency, liquidation or judicial management, to vote at such
meeting and in general to exercise all such powers as may be
exercised by a creditor.
7.12
PROFESSIONAL SERVICES
To
employ the services of a professional advisor or artisan for purposes
of the trust and, to pay the fees of such person.
7.13
OFFSHORE
I
NVESTMENTS
If
any beneficiary should emigrate from the Republic of South Africa,
and if possible and allowed by law, to transfer the beneficiary's
share of the trust assets to his or her country of adoption, and to
appoint an agent at the trustees discretion or to establish
a new
trust to administer on behalf of the beneficiary such transferred
assets in accordance with the terms and conditions of this
trust
deed.
8
DUTY NOT TO CONTRACT WITH THE
TRUST
The
trustee shall not contract with the trust other than for the purpose
of performing its function as trustee.
9
REMUNERATION OF
TRUSTEE
The trustee for
the time being, if a company empowered to
undertake
trust business,
shall be entitled, in addition to reimbursement of its
proper
expenses, to remuneration in accordance with the statutory tariffs
applicable
from time to time to the services of a
curator bonis
in
terms
of
the
Administration of Estates Act.
10
APPROPRIATION AND VESTI NG OF THE TRUST
ASSETS
10.1
Subject to the provisions of this trust deed and
in particular the pro".'isions
of this
clause, the trustees shall, in the administration of the trust
assets, follow such procedures and take such
administrative steps as it deems necessary from time to time, subject
to the final
direction by the
master of the High
Court.
10.2
The
trustee
shall
at
least
once
a
year
decide
on
the
application
and/or
appropriation of
income and capital profits received by the
trust.
10.3
The
trustee shall keep an account of all assets of the trust and
prepare
annual
statements
and
keep
records
of all transactions
in the
trust in
terms
of
the
general
accounting
practice
in
the Republic
of
South
Africa
and the provisions of the Trust Property Control
Act or other legislation.
10.4
The
trustee may administer this trust for the benefit of the Beneficiary
in
whatever manner it may
determine and in that regard shall have the
widest possible powers of managing and dealing with the Trust
Assets in all respects subject thereto that the trustee shall at all
times act in the best interest of the beneficiaries.
11.
TERMINATIO
N OF TRUST A N D DISTRIBUTION OF ASSETS
11.1
The
Trust is a discretionary Trust as far as the application,
allocation and appropriation of
Trust Assets are concerned,
subject
thereto
that all decisions and actions taken shall be in the
best
interest
of the
beneficiaries. No payment
or transfer of Trust
Assets, or part thereof,
will be made to a Beneficiary before the
date
vesting thereof in a
Beneficia'ry.
11.2
The
Trustee
may
decide
whether any expenses incurred in
respect of the Trust will
be
paid from the Trust
Capital, or, from the net Trust
I
ncome.
11.3
Payment
at any time of any portion of the Trust assets to the
Beneficiary may be made in cash
or in goods, or partially in
cash
and
partially
in
goods,
in
the
discretion
of the
Trustee. The
value
ascribed by the Trustee
to goods awarded, shall be final
and
binding
on all parties concerned. For the purpose of this clause,
"goods" shall also
include Assets of a capital nature, other than
cash,
forming part of the trust Assets.
11.4
The
Trustee shall be entitled to capitalise any Trust
I
ncome
in order to increase
the
Trust Capital.
11.5
No beneficiary shall be entitled to transfer, cede, pledge or
otherwise deal with any interest in this Trust before the date of
vesting and no Beneficiary shall have any claim to any trust assets
before such date.
12. TERM INATION OF TRUST
AN D DISTRI BUTIO N OF ASSETS
The
trust shall terminate upon the death of MARNO JANSEN VAN RENSBURG and
the remaining net assets be distributed upon termination
in
accordance with MARNO JANSEN VAN RENSBURG's succession regime at the
time of death.
13.
EXCLUSIO N OF BEN E FITS FRO M COM M U NITY ESTATE
Any
benefit, including the proceeds of any such benefit, which any
Beneficiary may receive under this Trust, shall be excluded from
any
community of property or accrual system.
14.
TAX ES
The
Trustee may pay any taxes, which may be levied on the donor in
respect of any income received by or accrued to the Trustee,
from the
Trust's net income and in the event of payment of such taxes by the
donor, such amount shall be refunded to the donor
15.
VARIATION
OF TERMS OF THE TRUST DEED
The terms of this trust may
only be varied in terms of an order of the High Court.
Signed
at JOHANNESBURG on this---------
day of ------- 2015 in the
presence of the followingwitnesses:
AS
WITNESSDONOR
AS WITNESS
AS
WITNESS
EXECUTED by the said STANDARD
TRUST LIMITED
Represented by:
TRUSTEE
Director/Authorised Signatory
Director/Authorised Signatory
[1]
Paginated
page 71 of bundle 3 plaintiff's medico legal reports.