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[2016] ZAGPPHC 578
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Chabangu v Road Accident Fund (12242/2014) [2016] ZAGPPHC 578 (11 March 2016)
REPUBLIC OF SOUTH
AFRICA
IN
THE
HIGH COURT OF SOUTH AFRICA
(GAUTENG PROVINCIAL
DIVISION, PRETORIA)
CASE NO:
12242/2014
DATE: 11 MARCH
2016
Not reportable
Not of
interest to other Judges
I
n
the
matter
between:
EUNICE
CHABANGU
Plaintiff
and
ROAD
ACCIDENT FUND Defendant
J
U D
G M E N
T
MAKGOKA.
J:
[1]
This is an action for damages in terms of the
Road Accident Fund Act,
56 of 1996
, as amended (the Act) pursuant to a motor vehicle
collision on 29 April 2007. The plaintiff, then 23 years old, was a
passenger
in a vehicle which collided with another. She was treated
at a hospital and discharged the same date. According to the
neurosurgeon
report, she sustained a closed head injury with frontal
wounds. She has a frontal lobe or intracranial injury, the symptoms
of
which are persistent headache, tinnitus and amnesia. Her current
complaints include chronic headache, itching of the scars on the
forehead, tinnitus, rumination about the accident, itching of the
scars on the forehead, backache, and anosmia. She also suffers
from
post-concussive syndrome and post-traumatic anxiety. The key question
for determination is whether the plaintiff would, but
for the
accident, attained a university degree or only a diploma.
[2]
The defendant has conceded full liability for the plaintiff's proven
damages. The plaintiff's general damages have been agreed
upon in the
amount of R300 000. With regard to future medical expenses, the
defendant has agreed to furnish the plaintiff with
an undertaking in
terms of
s 17(4)(a)
of the Act. Accordingly, the only issue for
determination is the
quantum
for loss of earnings or
earning capacity.
[3]
The plaintiff is currently 32 years old. She is divorced and has two
minor children. She matriculated in 2007, the same year
in which she
sustained the injuries. Below I make a comparison of the percentages
achieved by the plaintiff in grade 11 and her
final matric results:
Subject
Grade 11 (Pre-accident) Grade 12 (Post-accident)
Xitsonga
78% C (60%-69%)
English
60% F (33,3%-39%)
Agricultural
Science 58% F (33,3%-39%)
Business
Economics 55% E (40%-49%)
Economics
45% E (40%-49%)
Biblical
Studies 70% E (60%-69%)
Mercantile
Law 53% E (40%-49%)
[4]
In the same year she matriculated, the plaintiff obtained a short
diploma in office computing. She registered for a diploma
in human
resources management, which she did not complete, supposedly because
of memory impairment problems. She was later employed
as a cashier at
a supermarket chain store, but had to stop working in 2012, again,
supposedly because of repeated forgetfulness
as a result of her
injuries. In 2013 she was employed at a tea packaging company, which
she also had to quit because of persistent
headaches. In 2014 she
found employment at a retail store, where she is still employed to
date. According to the relevant reports
of the experts, the plaintiff
is struggling to cope even in her current position as she makes a lot
of mistakes resulting in cash
shortages. According to those reports,
she has been issued with a reprimand letter for warning.
[5]
The plaintiff was born into a family of six children. Her mother has
no formal education. She is self-employed, doing recycling
and
washing dishes. Her father, who passed away in 2015, completed grade
8 and had been employed by a municipality. None of her
siblings had
acquired any post-matric qualification. In fact, only two of her
siblings passed matric. The others only reached the
grades below
matric. As a result, none of them are employed in any professional
occupation. For the plaintiff, two scenarios are
postulated for her
likely career path, were it not been for the accident. According to
this postulation, the plaintiff would have
been able to enter the
labour market either as an attorney or an advocate, earning
accordingly at entry level, and increasing her
earnings as she gained
more experience, until retirement. On the other hand, on behalf of
the defendant it is postulated that the
plaintiff would only have
achieved a diploma, and at most, a general university degree.
[6]
Six witnesses testified. Mrs Paulina Mukansi (the plaintiff s mother)
Ms Reneilwe Ndlovu, Dr Masello Matlala (educational psychologist)
and
Dr Malaka (industrial psychologist) all testified in the plaintiffs
case. For the defendant, Ms Linda De Rooster (educational
psychologist) and Mrs Cecile Nel (industrial psychologist) testified.
It is not necessary to set out in any detail, the evidence
led during
the trial. What follows is a summary of that evidence.
[7]
The plaintiffs mother, Mrs Mukansi, testified that before the
accident, the plaintiff performed 'well' at school. She had never
repeated a grade. After the accident, she became forgetful and lost
interest in her studies. She further testified that the plaintiffs
dream was always to become a lawyer. As a result, the plaintiff s
father had been saving money for her studies. The plaintiff s
ambition of becoming a lawyer was confirmed by the second witness, Ms
Reneilwe Ndlovu. She works for a firm of attorneys as a general
worker. She testified that the plaintiff had visited the firm in 2007
to know more about legal practice. She referred the plaintiff
to the
professional staff.
[8]
Dr Matlala, an educational psychologist, prepared a report on behalf
of the plaintiff, in which she evaluated the plaintiff's
pre-accident, post-accident cognitive, emotional and educational
potential as well as future occupational endeavours. She concluded
that the plaintiff was of average intellectual ability. Pre-morbid,
she would probably have passed matric with university entrance
to
study for a degree or diploma at a tertiary institution. For that
conclusion, she took into consideration a number of factors,
among
which, the plaintiff's grade 11 results. I shall revert to this
aspect later.
[9]
Furthermore, Dr Matlala also took into account what she considered to
be the plaintiff's self-drive. She pointed out that despite
the
plaintiff having had to quit school because of pregnancy, she managed
to return to school to complete her matric, which Dr
Matlala found to
be demonstrative of her aptitude. Furthermore, she took into account
the fact that the plaintiff managed to obtain
a short diploma in
office computing, after the accident. According to her, the plaintiff
has the aptitude, intrinsic motivation
and confidence to have
attained a degree. The above factors would, according to Dr Matlala,
made the plaintiff an exception to
her siblings, who, as indicated
earlier, neither of them had obtained tertiary education. Dr Matlala
also considered letters from
the primary school and secondary school
which the plaintiff attended. In those letters, the plaintiff was
described in laudatory
terms.
[10]
Dr Malaka, an industrial psychologist, prepared a report on behalf of
the plaintiff, the purpose of which is to postulate what
the
plaintiff's likely career path and earning capacity would have been,
but for the accident and the injuries suffered by her.
Dr Malaka
concluded that the plaintiff would have completed her educational
career and resuming .work in the open labour market
as an attorney or
advocate, had the accident not occurred. She would have been able to
work until the retirement age, health and
other aspects of life
permitting. Post morbid, the plaintiff would be able to partake in an
open labour market but in a sympathetic
type of employment, given her
physical and neuropsychological ailments. According to Dr Malaka, the
plaintiff has a diminished
work capacity, which has rendered her
vulnerable.
[11]
Ms De Rooster, educational psychologist, testified on behalf of the
defendant as to the impact of the accident on the plaintiff's
education and training possibilities, as well as the plaintiff's
cognitive functioning. She concluded that the plaintiff was a
person
of average cognitive abilities pre-accident and that she would
probably have been able to progress up to grade 12 with diploma
endorsement in a mainstream school, but for the accident. Ms De
Rooster further testified that the plaintiff would probably have
been
able to complete a diploma course (NQF6) successfully, if she
received the financial aid she would have needed. Her socio-economic
circumstances, and the effects of disadvantaged education, might have
caused a delay in the completion of her studies.
[12)
Ms De Rooster differed with Dr Matlala as to what tertiary
qualification the plaintiff would probably have achieved. She was
quite strong in her opinion that, given her poor socio-economic
background, the fact that no one in her family had progressed beyond
matric, her limited exposure to English, are all factors which
militate against the proposition that the plaintiff would
have
attained a university degree. Ms De Rooster further emphasised the
fact that the plaintiff has not been able to realize her
pre-accident
potential, and attained matric with lower marks than she anticipated,
she still remained very much an average pupil.
In this regard, Ms De
Rooster pointed out that the plaintiff's grade 11 results were below
average.
[13)
Mrs Cecile Nel, an industrial psychologist who testified on behalf of
the defendant, allowed for the possibility of the plaintiff
acquiring
either a degree or diploma.
[14)
It is against the evidence that I have to consider the plaintiff's
loss of earning capacity. The assessment of future loss
of earning
capacity presents obvious difficulties. These were discussed in
Southern
Insurance
Association Limited
v
Bailey NO
(supra) at 113F-114E where
Nicholas JA stated as follows:
'Any enquiry into damages
for loss of earning capacity is of its nature speculative, because it
involves a prediction as to the
future, without the benefit of
crystal balls, soothsayers, augurs or oracles. All the Court can do
is to make an estimate, which
is often a very rough estimate, of the
present value of the loss. It is open to it two possible approaches.
One is for the Judge
to make a round estimate of an amount which
seems to him to be fair and reasonable. That is entirely a matter of
guesswork, a blind
plunge into the unknown. The other is to try to
make an assessment, by way of mathematical calculations, on the basis
of assumptions
resting on the evidence. The validity of this approach
depends of course upon the soundness of the assumptions, and these
may vary
from the strongly probable to the speculative. It is
manifest that either approach involves guesswork to a greater or
lesser extent.'
[15]
The approach to calculating loss is trite and established: (a)
calculate the present value of the income which the plaintiff
would
have earned but for the injuries and consequent disability; (b)
calculate the present value of the plaintiff's estimated
future
income, if any, having regard to the disability; (c) subtract the
figure obtained under (b) from that obtained under (a);
(d) adjust
the figure obtained as a result of this subtraction in the light of
all relevant factors and contingencies (Gauntlett
Quantum
of
Damages,
Vol 1 (4ed) at 48. See
also See also
D'Hooghe v
Road Accident Fund
201O
(6J2) QOD 1 (ECP) para 19.
[16]
In the present matter, the dispute revolves around the
plaintiff's probable career path, had the accident
not
occurred. As is apparent from the reports of the two educational
psychologists, Dr Matlala and Ms De Rooster, the question
is whether
the plaintiff would have progressed to university degree or would
have reached her educational plateau at diploma level.
On the one
spectrum is a scenario in which the plaintiff would have pursued a
degree in law and qualified to practice as an advocate
or an
attorney. On the other hand, the defendant postulates that the
plaintiff would have obtained only a diploma.
[17]
In my view, the probability of the plaintiff qualifying either as an
attorney or an advocate seems far-fetched. When one considers
her
grade 11 results, I am inclined to agree with Ms De Rooster that the
plaintiff was, pre-accident, very much an average pupil.
If those
marks are anything to go by, the plaintiff would most certainly have
struggled with a law degree, or any specialized degree.
It would have
been a different situation had she, for example, been injured in her
second or third year of her studies in law,
or as correctly pointed
out by
Mr Williams,
had one of her parents been a legal
practitioner.
[18]
Having said that, I do not think it would be unrealistic to suggest
that she could have obtained another degree, perhaps in
social
sciences or the arts. Ms De Rooster could not explain why the
plaintiff would only obtain a diploma but not a degree. What
is more,
I do not accept the central thesis of her conclusion, which is that,
because of her disadvantaged socio-economic background,
the plaintiff
would have been confined only to a diploma. That appears very
arbitrary. She was pressed to concede during cross-examination
that
many successful people share the plaintiff's socio-economic
background. On the other hand, I find Dr Matlala's reasoning more
cogent in concluding that the plaintiff's self-motivation and drive,
would have carried her through. The fact that the plaintiff
did not
allow pregnancy and the accident to deter her from pursuing her
studies, is demonstrative of that self motivation.
I therefore
conclude that the plaintiff would, in all probability, have
progressed to obtain a degree.
[19]
The parties have agreed on certain actuarial calculations for
different scenarios. Using the opinions expressed by the industrial
psychologists in respect of the plaintiff's probable qualifications
and career path based on her attaining a degree, GRS Actuarial
Consulting, actuaries, have made a calculation of what the plaintiff
would have earned in the remainder of her working life had
she not
been injured. The retirement age is assumed at age 62Y:z. The
actuaries have calculated (on the basis of various assumptions)
that
but for the accident, the plaintiff would, in the scenario where she
enters the open labour market with a degree, she would
have earned R7
566 314. Her income, given that the accident occurred, is calculated
at R2 325 137, resulting in the loss of RS
241 177. To these amounts,
provision should be made for contingencies of life, and adjust the
amounts accordingly. One should do
so having regard to the two
scenarios: the 'but for' and 'having regard to' scenarios. The
actuaries have incorporated the general
contingency deductions into
the net limited loss of 10% for past income and 25% for future income
in the 'but for scenario' and
5% and 30% in the 'having regard to
scenario.
[20]
I am of the view that in the light of the evidence which surfaced
during the trial, further contingency deductions should be
applied.
This is so since where actuarial calculations are relied upon, the
Court still retains a discretion in the quantification
of damages. It
is 'not tied down by inexorable actuarial calculations'.
(Legal
Insurance Company Ltd v Bates
1963 (1) SA 608
(A), at
614F-G). See also
Anthony and Another
v Cape Town
Municipality
1967 (4) SA 445
(A) at 4518-C.
[21]
In the 'but for scenario', I must consider a number of factors such
as the plaintiff's skills, age and prospects of progression
in the
labour market. The plaintiff is 32 years old. Her highest academic
achievement is matric, completed in 2007. She demonstrated
keen
interest in studying and bettering her position through education.
The negative contingencies include the possibility that
the plaintiff
might not have obtained the degree, after all; the possibility of
errors in the estimation of the plaintiff's retirement
age and in
calculation of future pay progression; her taking early retirement;
the likelihood of illness or unemployment which
would have occurred
in any event, and similar considerations.
[22]
Given that the accident happened before the plaintiff could realise
her full potential, resulting in .a lot of uncertainty
as to her
career path, I am of the view that a 20% contingency deduction should
be applied to the uninjured scenario, that is R7
566 314 - 20% = R6
053 051.20.
[23]
Turning now to the 'having regard to' scenario. In this scenario, I
have to consider a number of variables consisting, among
others, of
the probability of the plaintiff retaining his present employment;
and the possibility of career change, due to continued
therapy for
the
sequelae
of the injuries sustained in the accident. There
are both negative and positive contingencies.
[24]
Having regard to all the relevant factors, a contingency deduction of
30% in the 'having regard' to scenario is in my view,
fair and
adequate compensation for the plaintiff. Thus R2 325 137- 30% = R 1
627 595.90. The difference between the 'but for' and
'having regard
to' scenarios is therefore: R6 053 051.20 - R 1 627 595.90, resulting
in the net future loss of earnings at R4 425
451.30. From this
amount, a further deduction in the amount of R300 000 should be made,
which is the amount of general damages
already advanced by the
defendant to the plaintiff as an interim payment. This leaves the
plaintiff's damages in the amount of
R4 125 451.30.
[25)
There remains the issue of costs. The plaintiff employed the services
of senior counsel. Ms
Maite,
counsel for the defendant
submitted that the matter is not so complicated as to warrant the
employment of senior counsel. I agree.
I would therefore allow costs
of one counsel. It is up to the taxing master to decide whether to
allow costs of senior counsel
or only of the junior.
[26]
The plaintiff's counsel handed up a comprehensive draft order, which
incorporates most of the various aspects of the order
I intend to
make. The draft also attaches a trust deed for the creation of a
trust to manage the capital on behalf of the plaintiff,
given the
nature of her injuries and vulnerability. There are however, a few
aspects that were not addressed to me but appear in
the draft order.
Firstly, in paragraphs 3 and 4 of the draft, provision is made for
the furnishing of an undertaking in terms of
s 17(4)(a)
of the Act 56
by the defendant to the plaintiff, as per an order of this court made
on 15 May 2015. I simply do not think it is
technically correct to
include that paragraph into the present order. An order has already
been made in that regard. If there is
no compliance with that order,
the plaintiff has the necessary remedies in terms of which she may
approach this court on application
for the necessary relief.
[27]
Secondly, there are also the costs incurred on 15 May 2015. In
paragraph 5.5 of the draft, provision is also made for payment
of
those costs. The court on that occasion made a costs order in respect
of the qualifying fees of six experts (in paragraph 4
of the order)
and in the duplicated paragraph 4 it made provision for costs of
counsel, travelling and preparation. Similarly,
I do not see any
reason why that court order should be duplicated here. I was not
addressed on this aspect, and maybe there are
cogent reasons why
those costs should be included here. For this reason my view would be
provisional until either party does, within
five days hereof, give
notice of intention to make submissions why those costs should be
duplicated here. On the lapsing of that
period, the order shall
become final.
[28]
Thirdly, in paragraph 7 of the draft, it is stated that the plaintiff
was advanced an amount of R500 000 by her attorneys.
I do not have
any information about this, except what is stated in the draft.
Similarly, the issue was not addressed to me during
the trial. If I
were to make that provision part cf the court order, I would be doing
so in the dark. If there is an agreement
between the plaintiff and
her attorneys in that regard, it is enforceable as between them, and
it does not need the imprimatur
of this court.
[29]
The upshot of all the above, is that paragraphs 3, 4, 5,5, and part
of paragraph 7, do not find their way into the order I
am about to
make.
[30]
In the result I make the following order:
1.
The defendant is ordered to pay the plaintiff R4 125 451.30;
2.
The defendant is ordered to pay the plaintiffs costs of the action,
such costs to include:
2.1
the costs of one counsel;
2.2
the reasonable taxable fees for consultation and preparation for
trial, qualifying and reservation fees (if any) and on proof
thereof
as well as the costs of the reports of:
2.2.1
Dr L Kgalema;
2.2.2
Ms G Mathala;
2.2.3
Dr Y Matlala;
2.2.4
Dr M Malaka;
2.2.5
Dr Lazarus K Nkuna;
2.2.6
Dr K Mafeekane;
2.2.7
Dr M Mohapi;
2.2.8
George Schwalb;
The
costs of all other reports served on defendant's attorneys not
mentioned above;
2.4
The costs of obtaining all actuarial reports from the actuaries GRS
Actuarial Consulting;
2.5
The costs of establishing the Eunice Chabangu Trust referred to
hereunder;
2.6
The costs of the trial enrolled for 3 March 2016;
2.7
The plaintiff's reasonable hotel accommodation, transportation costs
for attending consultation with the medico-legal experts
as well as
reasonable transportation for attending to court.
3. It is noted that the
amount in paragraph 1 and the costs are to be paid into the trust
account of Dolamo Attorneys.
4.
It is noted that after deduction of agreed/attorney fee due to the
plaintiff's attorney and their correspondent, and after deduction
of
disbursements (including counsel's fees) the net amount of the award
is to be paid to the EUNICE CHABANGU TRUST. A copy of the
draft trust
deed of the EUNICE CHABANGU is attached hereto marked "A".
5.
It is noted that the plaintiff has agreed to furnish the defendant
with at least 14
(fourteen)
days written notice of taxation.
6.
The plaintiff's attorney is entitled to charge contingency fees in
terms of the Contingency Fees Act on the basis of the contingency
fee
agreement dated 15 February 2010.
TM
Makgoka
Judge
of the High Court
Date
of hearing: 4 March 2016
Judgment
delivered: 11 March 2016
Appearances:
For
the Plaintiff:Adv. J.O Williams SC
Adv. M.G. Mola
Instructed
by:Nchime Dolamo Attorneys Pretoria
For
the Defendant: Adv. L. Maite
Instructed
by:Diale Mogashoa
"A"
DEED
OF
TRUST
entered
into by and between
NCHIME
DOLAMO
(hereinafter
referred to as the "DONOR")
and
JACOBUS
FREDERIK DE BEER
(hereinafter
referred to as the "TRUSTEE")
In
terms of which the DONOR donates to the TRUSTEE, the sum of Rl00.00,
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 ls herein set out:-
1.
DONATION
The
DONOR hereby donates to the TRUSTEE the sum of Rl00.00, which amount
will be paid to the TRUSTEE and will be received by him
with the
registration of this Deed.
2.
N
AME
OF
TRUST
The
Trust will be known as the EUNICE CHABANGU TRUST
3.
TRUSTEE
3.1
There will at all stages be one trustee who must be an admitted
attorney or a registered chartered accountant;
3.2
The 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;
3.3
The TRUSTEE must 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 obligations towards the Trust.
4.
BENEFICIARIES
The
beneficiary of this Trust will be EUNICE CHABANGU with regards to the
income derived from the Trust assets and the capital shall
also be
used to the benefit of EUN CE CHABANGU In such a way as the TRUSTEE
may deem appropriate. At the death of the mentioned
EUN CE CHABANGU
the Trust's assets will be transferred to the heirs of EUNICE
CHABANGU as set out In the Will of EUNICE CHABANGU
or should EUN CE
CHABANGU not leave behind any will, the assets will be transferred to
the intestate heirs of EUN CE CHABANGU In
accordance with the
provisions of the Intestate Succession Act.
5.
OBlECJIYES
The
objectives of this Deed of Trust are the following:-
5.1
To maintain and support the said EUN CE CHABANGU physically and
mentally for the remaining part of her life;
5.2
The TRUSTEE will as far as possible endeavour to utlllze the funds of
the Trust to comply with the medical needs of the mentioned
EUN CE
CHABANGU. 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 EUN CE
CHABANGU to the foreign country If the TRUSTEE
In his discretion
deem It to the benefit of EUN CE CHABANGU and if there are
sufficient grounds and funds for such advice and
medical treatment;
5.3
To provide accommodation to the beneficiaries and one other person
who will act as the beneficiary's caretaker/nurse if necessary
and
affordable.
I
n this respect the TRUSTEE will also be entitled In his discretion to
employ people and to remunerate them for services rendered
to EUN CE
CHABANGU where and If necessary and affordable;
5.4
To do anything that the TRUSTEE in his discretion deem necessary for
the general well-being of the mentioned EUNICE CHABANGU
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 EUN CE
CHABANGU.
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;
Any
assets that may be allocated to the Trust In terms of an Order of
Court or settlement of the action.
7.
INCOME FROM THE BANK
The income of the Trust
will be all income earned bymeans 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 wll1 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 this
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 publiccompanies,
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 beneficiaries which will also
include moveable assets of whatsoever nature if deemed
reasonably to
the benefit of the beneficiaries. 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 practices a profession and in such capacity performs
any other act or service on behalf of the Trust, in such
capacity,
the TRUSTEE will be remunerated for his 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 acquire or renounce, in any manner whatsoever, rights on behalf 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 possiblllty that the
TRUSTEE would
have been able to perform such act himself does not detract from the
aforementioned entitlement;
8.1.13
To utlllze 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 they directly or indirectly have
an Interest in
such company or society, neither will the TRUSTEE, due to his
confidential relationship with the Trust, be obliged
to give account
of any benefit, which accrues to them due to such Interest either
directly or indirectly, nor ls any act, agreement
or deed of the
TRUSTEE void or voidable on the ground that they received such
benefit. The object of this clause Is to avoid that
the consequences
of voldabillty 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 5.1or 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 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 flt, If he by doing so will benefit himself
or his estate. The TRUSTEE will furthermore not
be authorised to use
or consume any of the assets of the Trust, 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 deem appropriate,
to such a person or persons. Control and care
over the Trusts assets
will however always be the responsibility of the TRUSTEE including
fixed property or a bond with regards
to any place In the Republic of
south Africa. n this regard the only limitation Is that Investments
may only be made within the
borders of the Republic of South Africa.
9.
BOOKKEEPING
9.1
The TRUSTEE must keep a complete set of accounting records with
regard to the affairs of the Trust;
9.2
The TRUSTEE will ensure that the accounting records of the Trust are
audited by a chartered accountant and that such accountant
will have
free access to the books, documentation and assets of the Trust.
10.
APPLICATION
OF INCOM E
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 JHE TRUSTEE
The
TRUSTEE will:-
11.1
As far as possible endeavour to realise the objectives of the Trust;
11.2
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
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;
11.4
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
See to it that proper minutes of all decisions made by him, are kept
in a safe place;
11.6
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
See to It that all contracts are fulfilled;
11.8 Make all payments
that may be payable on the income of the Trust; 11.9 If he deems it
necessary to effect any amendments to
the Trust Deed, he will be
entitled to make the said amendments on condition that such
amendments are approved by the DONOR during
his lifetime. After the
death of the DONOR he will be entitled to make such amendments as he
may deem appropriate on condition
that such amendments will not amend
the objective of the Trust;
11.10
See to it that the set of books that he must open and keep will
immediately become operational and at the same time appoint
a firm of
auditors for the Trust as soon as the Master of the High court has
registered this Deed;
11.11
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 report and file statements of account to the Master of the High
Court, Pretoria, as at 28 February of every year.
12.
POWERS OF
THE TRUSJEE
The
following people will be incompetent to act as TRUSTEE of this
Trust:-
12.1
Any person who is Incompetent to act as a director of a company in
terms of the stipulations of the relevant Company Laws of
the
Republic of South Africa;
12.2
Any person who is an unrehabilitated insolvent;
12.3
Any person who has previously been removed as a TRUSTEE from a trust
due to his/her mlsadmlnlstratlon 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 terminate at the death of the mentloned EUN CE CHABANGU.It
requires an application to the High Court In Pretoria,
to terminate
or dissolve the Trust prior to the death of EUNICE CHABANGU.
14.
DIS$0LUTION OF THE TRUST
With
termination of the Trust as a result of the death of EUNICE CHABANGU
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 EUNICE CHABANGU and If the mentioned EUNICE
CHABANGU 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 office as TRUSTEE of this
Trust, to enter Into a contract with the Trust or any company
in
which the Trust has an Interest. Furthermore any contract entered
into between the Trust and such company will not be void due
to the
Trustee's Interest in the company. The only requirement with regard
hereto, Is that the TRUSTEE must before any negotiations
are entered
Into, disclose his Interest In the contract or entity, to the Master
of the High Court of South Africa before such
negotiations take
place;
15.2
Any TRUSTEE, who Is a member of or a partner in a firm of
professional practitioners, may be employed by the Trust or render
services for the Trust and in such instance the TRUSTEE will be
entitled to a fee In his professional capacity;
15.3
No TRUSTEE will be requested to make good any damages that the Trust
may have suffered, regardless of how such damage was caused,
with the
exception of such damage that was caused by the dishonesty of a
TRUSTEE or as a result of his negligence;
15.4
No TRUSTEE will be liable for any dishonesty or wrongful act
committed by any other TRUSTEE unless such a TRUSTEE had knowledge
thereof and allowed such dishonest acts or acted as an accessory;
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
personally
and which result from the reasonable acts of the TRUSTEE and the
exercise of any of his competencies which he/she is
entitled to
exercise In terms of this Deed.
16.
REMUNERA
T
I
ON
If
the TRUSTEE Is a professional person, he will be entitled to his
reasonable professional fees for any professional work done
for the
Trust. Such fees will include any fees that are reasonably payable to
his partners and he 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 will make with regard
to the care of the
mentioned EUN CE CHABANGU, the TRUSTEE will be entitled to a yearly
fee as stipulated in the relevant legislation
of the Republic of
south Africa.
17.
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 MARCH 2016.
AS
WITNESSES;
1.
2.
SIGNED
at PRETORIA on this the --- day OF MARCH 2016.
AS
WITNESSES;
1.
DONOR
2.
TRUSTEE
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE
NO : 12242/2014
In
the
ex
parte
application of
CHABANGU
EUNICE
(IN
RE :
THE
APPOINTMENT OF A TRUST FOR EUNICE CHABANGUI
(born
12 September 1984)
Plaintiff
I,
the undersigned
JACOBUS FREDERIK DE
BEER
confirm
that :
1.
I am practising as an attorney of the firm, Glldenhuys Malatjl
InIcorporated Pretoria.
2.
I am not related to the patient and she Is not known to me.
3.
I agree to act as trustee for EUNICE CHABANGU.
FREDERIK
DE
BEER