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[2016] ZAGPPHC 828
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Strydom v Road Accident Fund (2011/4407) [2016] ZAGPPHC 828 (5 September 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 HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
5/9/2016
CASE
NO
: 2011/4407
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
STRYDOM,
ADV J S
, as
Curator ad Litem
for and on behalf
of:
NHLENGETHWA:
SAMKELO
VUSI
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
ADAMS
AJ:
[1].
The plaintiff is the duly appointed
curator ad /item
for Vusi
Samkelo Nhlengethwa
('the patient').
He claims delictual
damages for and on behalf of the patient from the defendant in terms
of the provisions of the Road Accident
Fund Act number: 56 of 1996,
as amended
('the Act').
The damages arise as a result of
personal injuries sustained by the patient in a motor vehicle
collision which occurred on the 301
May 2008 at the
intersection
of Swartruggens Road and Monareng Street near Rustenburg.
[2]
The patient, whose date of birth is the […] 1962, was 46 years
old at the time of the accident, and he sustained a moderate
to
severe brain injury, a back injury, a laceration of the left parietal
side of the head and soft tissue injuries to the shoulder,
the left
leg and the left side of the back. His age at present is 54 years
old.
[3]
The issue of the merits
I
negligence
I
liability, I am
advised, was previously settled between the parties on the basis of a
50/50% apportionment, which means that the
defendant is liable for
50% of the damages suffered by the patient as a result of the
injuries sustained by him in the collision.
[4]
As far as future hospital and medical expenses are concerned, a
previous Court Order was granted in terms whereof the defendant
was
ordered to furnish the plaintiff with a statutory Undertaking in
terms of the provisions of section 17(4)(a) of the Road Accident
Fund
Act number 56 of 1996 (as amended)
('the Act').
In view of the
apportionment by agreement between the parties of the liability
aspect, the said Undertaking would naturally cover
the plaintiff in
respect of future hospital and medical expenses, but limited to 50%
of such costs.
[5]
This means that the only issues which remain unresolved between the
parties and which I am required to adjudicate are that of
the quantum
of the plaintiff's general damages and the plaintiff s past and
future loss of earnings / loss of income earning capacity
/ loss of
employability.
[6]
This matter came before me on the basis that neither of the parties
would lead oral evidence and that they would rely on the
contents of
the various medico - legal reports commissioned on behalf of the
parties and joint minutes compiled by the overlapping
experts. Most,
if not all, of the facts are common cause and I am required to
adjudicate the outstanding issues in dispute, which
were further
crystalized during argument, on the basis of the agreed facts.
[7]
The body of the evidence before me consists of a number of the
medico legal reports of the experts on behalf of both parties,
as well as the joint minutes of the pre-trial meetings held between
some of the overlapping experts (all of which, by agreement
between
the parties, were admitted as evidence). No witnesses were called to
testify by either party.
[8]
By the time I had heard submissions by Counsel for the plaintiff and
the defendant, the issue relating to the quantum of the
plaintiff s
loss of earnings had been narrowed down further within this broad
head of damages to an argument on the contingencies
to be applied to
the agreed pre - and post - morbid projected income of the patient.
THE
FACTS:
[9]
After the accident on the 30th of May 2008, the patient was taken by
ambulance from the scene of the collision to the Paul Kruger
Hospital
in Rustenburg. He was diagnosed with having suffered a fairly severe
injury of the head and minor injuries to the back
and lower limb.
[10]
The patient was admitted and hospitalised for a period of 18
(eighteen) days from the date of the accident, being the 30
th
May 2008, to the 18
th
June 2008. On admission his Glasgow
Coma Scale (GCS) was 10/15, improving to 14/15 on the 13th June 2008.
Whilst in hospital, his
laceration was sutured and he was kept in
hospital for neurological observation. He remained restless,
disorientated and confused
until at least the 12
th
of June
2008. He required encouragement to eat on the 10
th
June
2008, and spilled from the left side of the mouth. A CT brain scan
done had revealed that he had a small haemorrhage in the
left
parietal region. lntracerebral haematomas were seen in the superior
aspect of the right parietal region.
[11]
The patient's main difficulty at present relates to his brain injury,
which is described by the neurosurgeon of the defendant
and the
neurologist of the plaintiff in their joint minute of the meeting
held between them as a
'moderate to severe diffuse brain injury'.
The patient also cannot hear properly with the right ear. He had
multiple fractures of the traverse processes of the vertebrae and
now
has back pain.
[12]
The patient suffers from a mood disorder due to the traumatic brain
injury, with moderate to severe personality, behavioural
and
cognitive changes indicated. With regard to his cognitive ability,
his neurocognitive profile demonstrates a number of difficulties
relating to attention and concentration, memory and learning, and in
his executive functioning.
[13].
At the time of the accident the patient was employed as a miner on a
contractual basis at JIG Contractors, and was placed
at Rustenburg
Bofokeng South Mines. It was a yearly contract, and was renewed on an
annual basis. As per salary advices for the
periods April 2008, May
2008 and June 2008, he earned an average basic salary of
approximately R10,553.00 per month, plus an average
incentive
I
production bonus of approximately R25,118.00 per month and
overtime of R422.00 as well as a contribution to his provident fund
of
R422.00 per month.
[14]
He also worked as a traditional healer during this time, but did this
more to assist people
[15]
As a result of his injuries he was absent from work for a period of
about 6 (six) months, and he was not paid during this time.
He was
only paid for the month of June 2008. He did not return to work until
November 2008, when he
'absconded'
on 18th November 2008. Upon
his return to work in September 2009, the patient failed a medical
examination due to his injuries sustained
in the accident. He has to
date been unable to return to work and
I
or to resume work as
a miner.
[16]
According to the Occupational Therapists, post - accident the
plaintiff no longer meets the inherent physical requirements
of his
previous occupation as a miner, which often has heavy physical and
excessive postural demands.
[17]
According to the plaintiff's psychiatrist, Dr Mirriam Close, and his
neurologist, Dr J A Smuts, the brain injury as well as
chronic pain
that the patient experiences has had an adverse impact on his ability
to obtain and maintain employment as there are
effects with regard to
motivation, self worth, ability to participate and cognitive
features. There has also been a decline
in his interpersonal
functioning with regards to his social inappropriateness, cognitive
impairment and aggressive behaviour, which
has had an adverse effect
on his occupational capacity as a traditional healer.
[18].
The clinical psychologists are in agreement that the deficits and
changes identified in their assessments will keep the patient
from
performing at his pre - accident level and that he will in all
probability not be successfully employed in the open labour
market.
LOSS
OF INCOME
[19].
On the basis of the joint minutes of the Industrial Psychologists, it
is common cause between the parties that but for the
accident, the
plaintiff would have continued working in his pre - accident capacity
as a miner until he reached the age of retirement
agreed on as age
62.5 years. As indicated above, there was also agreement on his pre -
morbid projected income and his post - morbid
projected earnings.
[20].
The aforegoing translated into an actuarial calculation by Human &
Morris Actuaries in terms of which the net loss of
earnings (past and
future) of the patient before the application of any contingencies
amounted in total to R5,958,712.00. The calculations
were on the
assumption that at the time of the accident the patient was earning
R10,533.00 per month, plus a production
I
incentive bonus
equivalent to 238% (R25, 118.00) of the basic salary and overtime
equating to 4% (R422.00) of the basic salary.
In projecting the
income forward from the date of the accident, provision was made only
for inflationary increases on the basis
that by the time the accident
happened, the patient had already reached his career and income
ceiling. Updated to the 301 August
2016 the basic salary amounted to
R17,067.00 per month.
[21].
The agreed post - morbid scenario of the calculations is based on the
assumption that the plaintiff retained an income earning
capacity of
R38,491.00 per annum.
[22].
As I indicated above, these calculations and the net results have
been agreed to by the parties and are based on the agreements
reached
between the Industrial Psychologists. The scenarios are also
seemingly supported by the factual matrix and the circumstances
in
the matter, notably the fact that factually the patient has not
returned to gainful employment after the accident.
[23].
In
Michael and Another v Linksfield Park Clinic (Pty) Ltd and
Another,
2001 (3) SA 1188
(SCA) at paras 36 and 37 the following
is stated relative to expert evidence and the opinions of expert
witnesses:
'[36] That being so, what is
required in the evaluation of such evidence is to determine whether
and to what extent their opinions
advanced are founded on logical
reasoning. That is the thrust of the decision of the House of Lords
in the medical negligence case
of Bolitho v City and Hackney Health
Authority
[1997] UKHL 46
;
[1998] AC 232
(HL (E)). With the relevant dicta in the
speech of Lord Browne Wilkinson we respectfully agree.
Summarised, they are to the
following effect.
[37] The Court is not bound to
absolve a defendant from liability for allegedly negligent medical
treatment or diagnosis just because
evidence of expert opinion,
albeit genuinely held, is that the treatment or diagnosis in issue
accorded with sound medical practice.
The Court must be satisfied
that such opinion has logical basis, in other words that the expert
has considered comparative risks
and benefits and has reached
'a
defensible conclusion'.'
[24].
In making an assessment of the weight to be attached to the
conclusions of experts, especially the Industrial Psychologists,
relative to the projected earnings of the patient, and applying the
above principles
in casu,
I have had regard to the objective
and undisputed facts in this matter, and I came to the conclusion
that, on the probabilities,
the aforegoing scenarios are accurate,
subject to what I say hereinafter in relation to the application of
contingencies.
[25].
In the premises, I find that the pre - and post - accident projected
career paths and earnings of the patient are as per the
aforegoing
calculations.
CONTINGENCIES
[26].
The only issue which I need to consider and to which I now turn my
attentions is that of the determination of a suitable allowance
for
contingencies. Our courts have alluded to the difficulties in
arriving at the proper allowance for contingencies. In
Goodall v
President Insurance
Co
Ltd,
1978 (1) SA 389
(WLD),
Margo J
remarked as follows (at par392H - 393A):
'In the assessment of
a
proper
allowance for contingencies, arbitrary considerations must inevitably
play
a
part, for the art or science of foretelling the future,
so confidently practised by ancient prophets and soothsayers, and by
modem
authors of
a
certain type of almanac, is not numbered
among the qualifications for judicial office.'
[27].
Mr Bischoff, Counsel for the plaintiff, urged me to apply 5%
contingencies to both the pre - morbid and the post - morbid
income
of the patient when calculating the past loss of earning. This is the
normal contingencies applied when calculating the
past
loss
and there is no reason to deviate from this standard, so it was
submitted on behalf of the plaintiff. As regards the
future
loss of earnings, Mr Bischoff submitted that it would be fair and
reasonable to apply 15% in respect of the pre - morbid projected
income and 20% on the post - morbid earnings.
[28].
Counsel for the defendant, Ms Pienaar, was of the view that higher
than normal contingencies should be applied to the pre
- morbid
projected income when calculating both the past and future loss of
earnings. She suggested 10% in respect of the past
pre - morbid
projected earnings and 20% in relation to the future pre - morbid
income.
[29]
I agree with the submissions made by the defendant's Counsel, and I
say so mindful of the difficulties mentioned in the Goodall
case and
having regards to the following considerations:
29.1. At the time of the accident, the
patient was 46 years old and he had reached his career and income
ceiling. This was confirmed
by the Industrial Psychologists for both
the plaintiff and the defendant.
29.2. A substantial portion of the
plaintiff's total monthly salary package of R36,093.00 was
constituted by an incentive
I
bonus, being R25,118.00,
therefore about 70%. This means that by far the largest share of the
income was not part of his guaranteed
earnings.
29.3. Furthermore, the pre - morbid
projected income was based on the earnings of the patient at the time
of the accident when he
was in fact employed on a contract basis,
which contract was renewed on an annual basis. The point is that the
job security of
the patient was not as ideal as it should have been
if the patient was in full time employment.
29.4. Defendant's Industrial
Psychologist, Ms Marina Grove, draws attention to the fact that the
mining industry has seen its fair
share of volatility. There have
been a number of much publicised retrenchments due to the effects of
the global economic recession
and sluggish improvement and falling
commodity prices in key markets such as China. There have reportedly
been 23,000 job losses
in the South Africa's mining sector since
April 2015. This is an aspect, so it was contended for on behalf of
the Road Accident
Fund, which ought to be dealt with by applying
higher contingencies. I agree with this submission.
29.5. A major difficulty which the
patient presently experiences from an occupational point of view
relates to neurobehavioural
fallouts. However, even before the
accident the patient appears to have been experiencing social snags.
For example, it was reported
to the plaintiff's Clinical
Psychologist, Mr Henk J Swanepoel, that during 2005 the patient was
dismissed from his then employment
'due to
a
misunderstanding'.
At that stage he had been accused of
substandard work. During 1992, 1996 and 2003 he suffered from and was
treated for tuberculosis.
Furthermore, to the Clinical Psychologists
he reported that he was
'quick tempered'
even before the
accident. When he was younger, he was reportedly arrested and jailed
for being physically violent and for fighting.
He was apparently
arrested many times for such, and at some stage served a prison
sentence for stabbing someone.
29.6. In their joint minute the
Psychologists agree that the post - morbid deficient performances are
not only related to the outcome
of the moderately severe brain
injury.
[30].
Normally, an appropriate allowance for contingencies in respect of
the past loss would be 5%, which is the figure suggested
by the
plaintiff. For the reasons mentioned above I am of the view that this
standard should be deviated from in relation to the
pre - morbid
projected past earnings. intend applying 15% contingencies.
[31].
As regards the future loss of income, the standard to be applied in
respect of the pre - morbid income would be 5% based on
the sliding
scale (See
Robert Koch: The Quantum Yearbook: 2015).
For the
reasons mentioned, I am of the view that relative to the pre - morbid
projected income, I should apply a much higher than
usual
contingency. In that regard, and all things considered, I intend
applying 30% contingencies in respect of the pre - morbid
income, and
the normal 5% in respect of the post - morbid income.
[32].
Having regard to the above factors, my view is that a contingency of
30% in respect of future pre - morbid earnings would
be justified. I
intend applying such a high contingency notwithstanding the
relatively short remaining working life of the patient.
What weighs
heavily on my mind in that regard is the pre - existing behavioural
problems with which the patient presented and the
fact that
objectively speaking his occupational security (he was on a yearly
contract) was not as secure as it ought to have been.
Also up to 2006
he was earning fairly modestly.
[33].
Post - morbid, it was submitted on behalf of plaintiff that a
contingency higher than the one applied in the pre - morbid
scenario
should be applied to make provision for the risk associated with the
fact that the plaintiff is now a more vulnerable
employee and job
seeker due to his physical difficulties. In the exercise of my
discretion I will apply a contingency which is
the same as the normal
I
standard contingency to be applied, therefore a contingency
of 5%. Post - morbid, the patient is being pitched at an extremely
low
level at R38,491.00 per annum (R3,200.00 per month in 2009
monetary terms), which is based on the assumption that he is close to
being completely unemployable.
[34].
Therefore, on the basis of the calculations as per the report by
Human & Morris dated the 30th August 2016 and applying
contingencies as aforesaid, the results of these calculations, after
the application of the contingencies are as follows:
UNINJURED
INJURED
NET
PAST INCOME
R3,390,180.00
R332,639.00
R3,057,541.00
Contingencies (15% & 5%)
R508,527.00
R16,631,95
R491,895.05
Net Past Loss of Income
R2,881,653.00
R316,007.05
R2,565,645.95
FUTURE INCOME
R3,278,897.00
R377,726.00
R2,901,171.00
Contingencies (30% & 5%)
R983,669.10
R18,886,30
R964,782.70
Net future loss of income
R2,295,227.90
R358,839.70
R1,936,388.20
TOTALS
R5,176,880.90
R674,846.75
R4,502,034.15
[35].
Therefore, under this head of damages I intend awarding the plaintiff
the total amount of R4,502,034.00.
GENERAL
DAMAGES
[36].
I now turn to the general damages suffered by the plaintiff.
[37].
The plaintiff's counsel suggested that a sum of R800,000.00 (pre -
apportionment) should be awarded to the plaintiff. He relied
on two
cases for comparative purposes, one which dates back to 1976 and the
other dating back to 2003. Counsel for the defendant
submitted to me
that an amount R600,000.00 would be a fair, just and reasonable award
in respect of the plaintiff's general damages.
She also referred to
cases for comparative purposes.
[38].
The award in previous comparable cases is but one of the
considerations which a court should take into account when
considering
the amount of damages to be awarded. I have summarised
the injuries and
sequelae
of the patient herein before.
[39].
In making an award under this head of damages, I have had regard to
the award as well as the comments by the SCA in the matter
of
De
Jongh v Du Pisanie,
2005(5) SA 457 (SCA), in which matter an
amount of R250,000.00 was awarded in respect of general damages for a
head injury which
led to brain damage of the same or similar severity
as the injury sustained by the patient
in casu.
Updated to
2016 this award translates into about R550,000.00.
[40].
Plaintiff in the
De Jongh
matter sustained a head injury
consisting of extensive fragmented fractures of the frontal skull
extending into the orbits (eye
sockets) and the zygomatic arches
(cheek bones), as well as the jaw, causing extradural haematoma which
led to unconsciousness
and which had to be surgically removed.
[41].
Importantly, in this matter the SCA, quoting Holmes J, also pointed
out the following fundamental principle relative to the
award of
general damages:
"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 largesse from the
horn of plenty at the defendant's expense."
[42].
De Jongh
is also authority for the view that the evaluation of
brain damaged persons depend more on how they actually handle their
daily
lives rather than how they perform on psychometric tests. See
paragraph [21] of the judgment.
[43].
I have also had regard to the unreported judgment (dated 30th March
2012) of Wepener J in the matter of
Nicholson v RAF,
Case no:
07/11453 (SGJ). In that matter the plaintiff sustained a
severe
traumatic brain injury coupled with soft tissue injuries to her back
and neck. Therefore, her brain injury was more or less the
same, if
not worse than that suffered by the patient in the present matter. Ms
Nicholson was awarded R400,000.00 during March 2012.
[44].
Also in:
Hurter v RAF,
2010 (6A4) QOD 12 (ECD) - 2
nd
February 2010, the plaintiff suffered extensive facial fracturing as
well a severe diffuse axonal injury to her brain, which included
a
brain contusion and fracture of the base of the skull. She only
regained consciousness fully about ten days after the accident.
As a
result of the severe traumatic brain injury, the plaintiff was left
with significant cognitive, socio - emotional and socio
- behavioural
difficulties. She had inter alia become irresponsible and
indifferent; she uses inappropriate language and was often
confrontational, aggressive and inappropriate when interacting with
others. Hurter, a 20 year old female student was awarded R500,000.00
during 2010. Updated to 2015, this award translates into R665,000.00.
[45].
I have also had regard to
Modan N
O
v RAF,
C & B
[Vol VI] A4-123 - December 2011, in which Maluleke J awarded
R350,000.00 for general damages to a three year old who suffered
a
concussive brain injury, a fractured nasal bone; soft tissue injury
to the forehead with scalp haematoma. Updated to 2015 this
award is
worth R443,000.00.
[46].
More recently on the 29th August 2013 Kathree - Setiloane J in the
matter of
Mathys N
0
v RAF,
C &
B, A4
-
273
[Vol VI],
awarded general damages of R500,000.00 to a plaintiff,
who suffered a
severe
brain injury and minor orthopaedic
injuries. He was admitted to hospital with a GCS of 10/15. Updated to
2015 this award equates
to R566,000.00.
[47].
Accordingly, I am of the view that, following the awards in the above
matters, the plaintiff s general damages should be R600,000.00,
which
amount should adequately compensate the plaintiff for general
damages.
FINDINGS
[48].
In the premises, the monetary award which I intend to make in favour
of the plaintiff comes to R5,102,034.15, which is computed
as
follows:
48.1. General damages: R600,000.00;
48.2. Past loss of earnings:
R2,565,645.95.
48.3. Future loss of earnings:
R1,936,388.20.
[49].
To this total should be applied the 50/50% apportionment in respect
of the liability issue, which means that the said total
will be
reduced by 50% resulting in the final amount of the judgment to be
granted in favour of the plaintiff of R2,551,017.08.
[50].
At the hearing of the matter, I was presented with a draft order,
which
inter alia
provides for an order for the creation of a
Trust so as to protect the funds. This provision was in accordance
with recommendations
of the medico - legal experts, all of whom
expressed the view that the patient is incapable of managing his own
financial affairs.
The
Curator ad Litem,
as well as the
defendant, are in agreement with the creation of a Trust as well as
with the rest of the provisions of the Draft
Order, subject to the
amount to be awarded by the Court. I therefore intend making the
Draft Order an Order of Court.
ORDER
In
the result, I grant Judgment in favour of the plaintiff against the
defendant for payment of the sum of R2,551,017.08 (Two million,
five
hundred and fifty one thousand, and seventeen rand, and eight cents),
payment of cost and other relief as per prayers 1 to
12 of the Draft
Order, which I have marked 'X", signed and dated.
_________________
L
ADAMS
Acting
Judge of the High Court
Gauteng
Division, Pretoria
HEARD
ON:
30th August 2016
JUDGMENT
DATE:
5th September 2016
FOR
THE PLAINTIFF: Adv
Bischoff
INSTRUCTED
BY:
Kritzinger Attorneys
FOR
THE DEFENDANT: Adv Pienaar
INSTRUCTED
BY:
Mathie Jooma Sabdia Incorporated
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No. 4407/11
Before:
Judge Adams AJ
On
30 August 2016
In
the matter between:
ADV.
JS STRYDOM
N.O. PLAINTIFF
(ON
BEHALF OF PATIENT
SV
NHLENGETHWA
)
and
ROAD
ACCIDENT
FUND DEFENDANT
DRAFT
ORDER
The
following is made an order of Court:
1.1.
The Defendant is ordered to pay the capital amount of R
2,551,017.08 (TWO MILLION, FIVE HUNDRED AND FIFTY ONE THOUSAND AND
SEVENTEEN RAND; EIGHT CENT)
in delictual damages within 14 days
to the credit of the trust account of the Plaintiff's attorneys of
record, Podbielski Mhlambi
Inc, Carletonville, whose trust account
details are as follows:
Name
of account holder:
Podbielski Mhlambi
Inc
Bank
Name:
Nedbank
Branch
Name:
Western Gauteng
Branch
Code:
187 505
Account
Number:
[…]
Type
of Account:
Trust Account
1.2. The aforesaid capital amount will
not bear interest unless the Defendant fails to effect payment
thereof on the specific date,
in which event the capital amount will
bear interest at a rate of 10,5% per annum, calculated from and
including the 151 day after
the date of this order, up to and
including the date of payment thereof;
2. Plaintiff’s attorneys are
given leave to invest the said amount on behalf and for the benefit
of the patient, following
having received the capital amount in an
interest bearing account as envisaged in Section 78(2)(A) of the
Attorney's Act, until
a trust as set out hereinunder is established
and registered.
3. The Plaintiff s attorneys are
ordered to pay the capital amount, less provision for attorney and
own client fees, expenses incurred
and accounts rendered by experts
and counsel employed, as well as the
curator ad !item
to the
trustees of a trust to be established of which
SAMKELO VUSI
NHLENGETHWA
(hereinafter "the patient") is to be the
sole capital and income beneficiary following the registration of the
said trust
with the Master of the High Court and following the
furnishing of security by the trustee to the satisfaction of the
Master of
the High Court as stipulated hereinunder.
4. The Plaintiff s attorneys are
authorised to make any reasonable and necessary payments, until such
time as the trustee is able
to take control of the capital amount and
to deal with same in terms of the trust deed, to satisfy the needs of
the patient that
may arise and that is required in order to satisfy
any reasonable need for treatment and/or equipment as may be
necessary in the
interim period.
5. It is recorded that the above
Honourable Court has already ordered on 9 September 2014 that the
Defendant shall furnish the Plaintiff
with a Section 17(4)(a)
undertaking in terms of the
Road Accident Fund Act, 56 of 1996
, in
which the Defendant undertakes to pay 50% of the costs of future
accommodation of the patient in a hospital or nursing home,
or
treatment of, or rendering of a service or supplying of goods to him
resulting from a motor vehicle accident on or about 30
May 2008 after
the costs have been incurred and on proof thereof.
6. The Defendant to pay the reasonable
costs of the trustee appointed in terms of paragraph 8 hereof,
including the costs of establishing
the trust and any other
reasonable costs that the trustee may incur in the administration
thereof including his/her fees, which
fees will include and be
subject to the following:-
6.1. The fees and administration costs
shall be determined on the basis of the directives pertaining to a
curator's remuneration
and the furnishing of security in accordance
with the provisions of the Administration of Estate Act, Act 66 of
1965, as amended
from time to time;
6.2. The 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;
6.3. The costs associated with the
yearly audit of the trust by a chartered accountant as determined in
the trust deed;
6.4. All the above-mentioned costs
shall be limited to payment of the reasonable costs which the
Defendant would have had to pay
in respect of the appointment,
remuneration and disbursements had the trustee been appointed as a
curator
bonis.
7. The nett proceeds of the payment
referred to above together with the Plaintiff's taxed 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, which trust will:
7.1 contain the provisions as fully
set out in the draft trust deed attached hereto marked Annexure "A";
7.2 have as its main objective to
control and administer the capital amount on behalf of the patient;
7.3 have Constant Wilsnach, a
practising attorney and director of Pretorius Wilsnach Attorneys, as
its first trustee, with powers
and abilities as set out in the draft
trust deed attached hereto marked Annexure "A", and the
trustee 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 obligations towards the
trust.
8. The trustee of the trust is
authorised to pay the Plaintiff's attorney and own client costs out
of the trust funds insofar as
any payments in that regard are still
outstanding at that stage.
9. The Defendant is ordered to pay the
Plaintiff's taxed or agreed party and party costs of the action on
the High Court scale up
to date hereof, up and including the trial on
30 August 2016 and the costs of making this Order an Order of Court
on 30 August
2016
9.1
in the event that the costs are not agreed:
9.1.1. the Plaintiff shall serve a
notice of taxation on the Defendant' s attorney of record;
9.1.2. the Plaintiff shall allow the
Defendant 14 Court days from date of the allocation to make payment
of the taxed costs;
9.1.3. should payment not be affected
timeously, the Plaintiff will be entitled to recover interest at a
rate of 10,5% on the taxed
or agreed costs from date of allocation to
date of final payment.
9.2
The costs referred to in paragraph 9 shall
inter alia
include
but not be limited to:
9.2.1. the costs incurred to obtain
payment of the amounts in paragraphs 1.1, 1.2 above and the amounts
in this paragraph 9 and
obtaining of the undertaking in terms of
Section 17(4)(a);
9.2.2. the costs of senior-junior
counsel for the action, including costs for the trial date on 30
August 2016, further including
but not limited to costs of
senior-junior counsel's attendance to all scheduled pre-trial
conferences and pre-hearing pre- trial
conference in open court (if
any), as well as preparation for same and drafting of pre-trial
agenda, questions and minutes for
all pre-trial conferences;
9.2.3. the costs of the Plaintiff s
expert reports and addendum reports (if any) RAF4-reports (if any),
joints minutes (if any),
taxable qualifying, reservation and
preparation fees (if any) to be determined by agreement or by the
Taxing Master of the Plaintiff
s following experts, further including
all reasonable costs in obtaining the said reports:
9.2.3.1. Dr. HB Enslin - Orthopaedic
Surgeon;
9.2.3.2. Dr. JA Smuts - Neurologist;
9.2.3.3. Dr. M Close - Psychiatrist;
9.2.3.4. Dr. Henk Swanepoel - Clinical
& Neuro Clinical Psychologist;
9.2.3.5. H Roos - Occupational
Therapist;
9.2.3.6. Dr. Ben Moodie - Industrial
Psychologist;
9.2.3.7. R Gous - Audiologist;
9.2.3.8. Dr. DP Rossouw - ENT Surgeon;
9.2.3.9. R Emmerich - Optometrist;
9.2.3.10. Human & Morris -
Actuaries.
9.2.4. the costs of all joint meetings
between the parties' experts and the preparation of joint minutes in
respect thereof (if
any);
9.2.5. the reasonable costs incurred
by and on behalf of the patient in attending the medical legal
examination of all experts from
both parties, including both fees for
travelling time, accommodation and disbursements incurred in such
amount as allowed by the
taxing master;
9.2.6. Attorney's traveling costs to
court on day of trial for 30 August 2016 and attorney's
correspondent's fees on a High Court
Scale, as allowed by the taxing
master;
9.2.7. The reasonable costs of the
appointment of the
curator ad
litem;
9.2.8. the costs of the curator
ad
litem,
including costs of preparation, consultations, attendance
of pre-trial meetings and costs of his reports and as well as his
costs
for the day and attendance to court on all trial dates on the
basis of his day fee per day.
10. In the event that costs are
agreed, the party and party costs are payable within 14 days from the
date of taxation,
alternatively
date of settlement of costs,
whereafter interest will be payable at 10,5% per annum from date of
taxation
alternatively
date of settlement of costs to date of
payment.
11. Plaintiff s attorneys shall take
all necessary steps to assist the trustee in the formation and
registration of the trust for
the benefit of the patient to ensure,
inter alia,
the proper protection, administration and
management of the financial and/or related affairs of the said
patient according to law.
12. It is recorded that the Plaintiff
entered into an hourly fee agreement with his attorney of record and
not
a contingency fee agreement.
____________________
REGISTRAR
TRUST
DEED
WHEREAS
A.
The High Court of South Africa has on the 5/9/2016 ordered that :
(I)
the nett proceeds of the settlement in the matter of
SAMKELO VUSI
NHLENGETHWA
case number 4407/2011 form part of the trust to be
administered, which trust is hereby created by the
Founder,
Constant Wilsnach;
AND
WHEREAS
B.
For the purpose of certainty and for the better administration of the
Trust to be created the following terms shall govern the
administration of the Trust.
1.
NOW THEREFORE IT IS CONFIRMED
:
Once
the Deed has been registered with the Master of the High Court and
Letter of Authority have been issued to the Trustee, the
nett
proceeds
("the proceeds")
of the settlement of the
matters referred to in A(i) above being a common law action for
compensation for injuries sustained by
the
Beneficiary
shall
pursuant to the direction
I
order of the said Honourable Court
be paid to the Trustee in trust on the terms and conditions
hereinafter set out, which proceeds
shall thereupon vest in the
Trustee and which proceeds the Trustee by his signature to this Deed
undertakes to accept for and on
behalf of the
Beneficiary
upon
the terms and conditions hereinafter set out herein.
2.
NAME OF TRUST
The
trust shall be known as the
SAMKELO VUSI NHLENGETHWA TRUST.
3.
INTERPRETATION
In
this Deed, unless the context otherwise requires, words importing the
singular shall include the plural, and visa versa, and
words
importing the masculine gender shall include the feminine gender, and
visa v
ersa. The following expressions used in the Deed shall
have the meaning hereinafter assigned to them unless the context
shall otherwise
require:-
3.1
"Beneficiary"
shall mean
SAMKELO VUSI NHLENGETHWA
or any other person as set
out in paragraph 6 below. The Beneficiary shall be entitled to
receive the income and capital of the
Trust upon the terms and
conditions set out in the Deed and shall be entitled to the capital
of the Trust upon its termination.
3.2
"Trust Fund"
shall mean the sums to be settled on the Trustee in terms of the said
order of Court, in particular the award referred to in paragraph
1
hereof together with any additions or accruals thereto; all assets
which shall from time to time be acquired by the Trustee for
the
purpose of this Deed including, without being limited thereto,
capital assets and all income thereon whether capitalised or
not.
3.3 The phrase "maintenance,
education and advancement if life" shall be interpreted in the
widest sense wherever it appears
in this Trust Deed so as to include
for example, attendance at schools, colleges, finishing schools and
universities anywhere in
the world; remedial teaching of any nature
whatsoever, specialised tutoring, occupational therapy of any nature
whatsoever, training
in craft hobby or trade, music, art, dancing,
sports, as well as sciences, travel, both national and international,
accommodation
lodgings, food, clothing and medical expenses and
general well-being of the Beneficiary including the setting up in
business or
profession.
4.
APPOINTMENT OF TRUSTEE
CONSTANT
WILSNACH,
an attorney and partner in the firm of Pretorius &
Wilsnach Incorporated or his successor in practice, or failing him a
partner
nominated by the managing partner of Pretorius & Wilsnach
Incorporated is hereby nominated as first administrative and sole
Trustee for the purpose of this Deed and shall be authorised to sign
all documents relating to the administration and investment
of the
Trust capital and shall be entitled to charge such fees and to
recover from the Trust such remuneration as he would have
received if
they had been administrators administering a testamentary trust. The
said
CONSTANT WILSNACH
by his signature to this Deed accepts
office as such and undertakes to carry out all the duties and
obligations encumbered upon
them hereunder.
5.
INCOME
The
Trustee shall collect the income accruing from the investment of the
Trust Capital and, after making provisions for payment
of all
necessary expenses, interest due, taxation, premium of the bond of
security and Trustee's commission, the nett income shall
be accrued
to and invested as part of the Trust Capital, for the benefit of the
Beneficiary.
Provided that the Trustee may in his entire
discretion pay the whole of such nett income or any portion of the
Trust Capital as
may be necessary to the
Beneficiary
and/or
apply the same for maintenance, education and advancement in life of
the
Beneficiary
and may at their discretion (whilst any
Beneficiary
is still a minor) make payment to such
Beneficiary's
parent or guardian on his/her behalf, in such
manner and upon such conditions and in such proportions and at such
times as the Trustee
may in his absolute discretion decide.
The
Trustee may in his entire discretion allow the
Beneficiary
hereunder free use and enjoyment of all assets owned by the Trust
and may decide whether the Trust or the Beneficiary concerned should
be responsible for the maintenance of such assets and also for the
payments of any rates, insurance premium and other similar charges.
In
the event of the Trust continuing after the death of
SAMKELO VUSI
NHLENGETHWA
as provided for in clause 6 below, the provisions
hereof shall
mutatis mutandis
apply in respect of any other
Beneficiary.
Notwithstanding anything contained in this Deed
unborn children shall not be recognised as having any rights under
this Deed or
the Trust Fund and the Trustee shall not be required to
take any account of unborn children in his administration of the
Trust
or any decision affecting the Trust.
6.
TERMINATION OF TRUST
In
the event of the
Beneficiary
dying intestate the Trust Capital
shall devolve according to the terms of Intestate Succession. The
Trust shall continue for the
benefit of his dependants and shall
terminate on the date of such dependant reaches the age of eighteen
years. In the event of
any dependant dying before reaching the age of
eighteen years such dependant's share shall devolve upon such
dependant's issue
per s
tirpes. If such dependant died without
issue, such share shall devolve upon the remaining dependants of
Beneficiary.
In
the event of
Beneficiary
dying but leaving a valid Will, then
the Trust Capital shall be distributed to his estate and shall be
dealt with in terms thereof.
In
the event of
Beneficiary
dying intestate and leaving no
surviving issue the Trust Capital shall devolve according to the Laws
of Intestate Succession.
7.
POWER OF TRUSTEE
The
Trustee shall be vested with powers:
7.1 To invest and re-invest the Trust
Capital in such manner and in such assets whatsoever as they in his
absolute discretion may
deem fit (with power to realise or
vary
any investment from time to time) and in particular. without
derogating from the generality of the powers here conferred, to
invest
the Trust Capital in shares of public companies and private
companies and any other companies which, because of the wasting
nature
of their assets or otherwise, may or may not be construed to
be securities of a Trustee nature, or non-income producing assets and
in the purchase of movable and immovable property.
7.2 To form companies for the purpose
of the Trust and to act as initial subscriber thereto.
7.3 To purchase or otherwise acquire
any assets whatsoever movable or immovable, on such terms as to
payment and with or without
security or pledge of all or any of the
assets of the Trust as they in his absolute discretion shall think
fit.
7.4 In his absolute discretion to
exchange, sell, !ease or otherwise deal with any of the assets from
time to time forming part
of the Trust Capital.
7.5 To borrow upon security or
otherwise and at interest or otherwise in such manner as the Trustee
may deem fit
7.6 For and on behalf of the Trust, to
commence and prosecute or defend action, suit, compulsory
sequestration, liquidation or other
proceedings before any Court or
any other competent body or person.
7.7 To accept further amounts in terms
of any new or further judgement and/or any further gifts and bequests
from any other person
in favour of the Trust without the necessity of
entering into a formal Deed of Donation.
7.8 To acquire and/or purchase and/or
effect life assurance policies on the life of any party with an
interest of whatsoever nature
in the Trust and pay all premiums
thereto.
7.9 To sign as surety for and on
behalf of a
Beneficiary
of the Trust, or any company in which
the Trust or
Beneficiary
may have an interest, as the Trustee
in his absolute discretion may think fit.
7.10. To open bank and building
society accounts in the name of the Trust and to maintain and run
such accounts in such a manner
as the Trustee deems fit.
7.11. To pass bonds over any immovable
property held in Trust by him.
7.12. To execute any act of deed
required to be lodged, or registered in any deed Registry or Mining
Title Office and generally
to do or cause to be done any act
whatsoever in any such office.
7.13. To exercise all voting or other
rights attaching to shares and other securities from time to time
forming part of the Trust
Capital in such manner as he shall consider
fit and to cause or consent to any re organisation,
consolidation or merger of
any company or its capital in which the
Trust holds shares and securities from time to time.
7.14. To determine, as he shall
consider fit, whether receipt shall be treated as capital in respect
of any liquidation dividend
or return of capital paid by companies in
respect of shares forming part of the Trust Capital, and generally to
decide by apportioning
in such manner as he may deem fit, should any
difficulty arise, as to what constitutes capital and what constitutes
income.
7.15. To change the name of the Trust.
7.16. In the event of a national
calamity in the Republic of South Africa or elsewhere or of a
Beneficiary
emigrating from the Republic or for any reason
which in the discretion of the Trustee renders it expedient or
desirable so to do,
provided the necessary exchange control approval
is obtained, to create or cause to be created a Trust or Trust the
world upon
the same terms as this Trust
mutatis mutandis
for
the benefit of any
Beneficiary
of this Trust who shall be
natural persons only and to transfer to any such Trust or Trusts such
portion of the Trust Capital as
shall in the sole and absolute
discretion of the Trustee represents the share of the
Beneficiary
concerned in this Trust.
7.17. To enter into contracts on
behalf of the Trust.
7.18. Resolutions in writing singed by
the Trustee shall have the same force and effect and be as binding as
a resolution taken
at a meeting of Trustees.
7.19. All documents of transfer in
respect of the purchase or sale of stock, shares and securities and
immovable property shall
be signed by the Trustee provided that the
Trustee has by resolutions agreed the purchase or sale of the asset
in question and
the terms of purchase or sale thereof.
7.20. To adopt, ratify confirm with or
without modification any contract entered into for and on behalf of
the Trust prior to its
creation.
7.21. The powers and authorities
herein granted to the Trustee may be exercised in any part of the
world and not only within the
Republic of South Africa.
7.22. The Trustee or any members or
partner of his firm may be employed to act in any matter relating to
the administration of the
Trust and shall in addition to any
remuneration payable to such Trustee in his capacity as such, be
entitled to charge and be paid
for any services rendered by him or
his firm in a professional capacity.
7.23. Generally, the Trustee is in
fact to have the same absolute control over and unfettered powers of
investment and re-investments
of the Trust assets as if he had been
absolutely and beneficially entitled to the Trust Capital and he is
specially indemnified
against any claim arising from the loss of
income or capital as a result of the
bona fide
exercise of the
discretion hereby granted to them.
8.
LIABILITY
The
Trustee shall :
8.1 perform his duties and exercise
his powers with care, diligence and skill, which can reasonable be
expected of a person who
manages the affairs of another and shall be
liable for breach of trust where he fails to show the degree of care,
diligence and
skill as requested;
8.2 be liable for losses as may arise
from or be occasioned by his own dishonesty, wilful misconduct or his
negligence or that of
his employees;
8.3 subject to the provisions of
section 9 of the Trust Property Control Act number 57 ("the
Act") of 1988, not be liable
for any act of dishonesty or any
other misconduct committed by any of his agents unless he knowingly
allowed it or was an accessory
thereto;
8.4 subject to the provisions of
section 9 of the Act, be indemnified out of the Trust assets against
all claims and demands of
whatsoever nature that may be made upon him
arising out of the exercise or purported exercise of any of the
powers hereby conferred
upon him.
8.5 The Trustee holding office shall
be required to furnish either individually or collectively to the
Master of the High Court
or any other government official, security
for the administration of the Trust hereby created, as the Master
deems fit.
9.
NOMINEE REGISTRATIONS
All
investments or other assets acquired by the Trust may be registered
in the name of the Trust without specifically naming the
Trust, or in
the name nominee company, or in such manner as the Trustee may deem
expedient from time to time.
10.
EXCLUSION OF MARITAL POWERS
The
rights of any amounts paid to any
Beneficiary
under this Trust
shall in no way from party of any community of property or joint
estate or accrual system of such
Beneficiary,
and the husband
of a female
Beneficiary
shall, whether his marriage to her be
in or out of community of property, not have or acquire any martial
powers, control or power
of administration over any such rights or
amounts.
11.
INDEMNITY - INCOME TAX
In
the event of the
Beneficiary
hereunder becoming legally liable
in any statutory year to tax upon the whole or any portion of the
income arising from the Trust
Fund to which he has not received the
benefit by reason of any provision in any law hereafter in force, in
terms of which the aforesaid
person is rendered liable for tax on
such income, then, in such circumstances, it shall be competent for
the Trustee to pay out
of the income or capital of the Trust, the
amount of the additional tax which the
Beneficiary
is obliged
to pay as aforesaid. For the purposes of this clause the expression
“tax” shall be deemed to include all
Income Tax, Imports
and other duties levied by the State or other competent authority.
12.
ACCOUNTING
The
Trustee shall cause proper records, which may be wholly or partially
computerised to be kept of all affairs and dealing of the
Trust The
records of the Trust shall be submitted to Accountants to be audited
and vouched at the end of each financial year, which
shall be
regarded as being the last day of February, of any other day which
may be selected by the Trustee and shall be submitted
within six
months of each financial year end.
13.
PAYMENT AND DELIVERY
In
paying out of any amount of capital or income of the Trust to or for
the benefit of a
Beneficiary,
the Trustee shall be empowered
to make the said payments in whole or in part be delivery of an asset
or assets or share in an asset
or assets having a value equivalent,
in the opinion of the Trustee, to the payment effected by such
delivery.
14.
UNDERTAKING
The
undertaking contemplated by section 17(4)(a) of Act 56 of 1996 as set
out above, will be administered by the Trustee, and the
Trustee will
be entitled to payment of 100% of the prescribed remuneration for the
administration of the undertaking and the defendant
will pay such
remuneration to the Trustee under the aforesaid undertaking
contemplated by section 17(4}(a) of Act 56 of 1996 as
set out above.
15.
AMENDMENTS
This
Trust Deed may not be amended or added to, save by way of an order of
court.
16.
GENERAL
14.1. The interest of the
Beneficiary
in terms of this Trust shall not be capable of being ceded,
assigned, transferred, pledged, hypothecated or in any way alienated
without the prior written consent of the Trustee and the Master of
the High Court or by order of Court.
14.2. The rights, benefits or
interests conferred on the
Beneficiary
under this Deed shall
not be capable of being exercised or claimed in any way by anyone
other than such
Beneficiary
or being attached at the instance
of any creditor or vesting in any other person in whomsoever in any
capacity.
14.3. Until any benefit or reward is
actually paid over to the
Beneficiary
nothing herein contained
nor any resolution, deed or act of the Trustee shall create or confer
upon any person any claim or right
enforceable at law to any benefit
or award hereunder.
14.4. Howsoever or wherever the assets
may be held or registered they shall be held on and for the account
of the Trust and at no
time shall the Trustee be deemed to acquire
for himself or his personal account any vested right or interest in
the Trust Fund.
AND
the said
CONSTANT WILSNACH
declared to accept office as
Trustee and promised to undertake diligently to perform the duties
hereinbefore imposed on him.
THUS
DONE AND SIGNED at Pretoria this 16lh day of September 2014.
AS
WITNESSES
:
1.
___________________
___________________
2.
___________________
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 4407/2011
In
the matter between:
SAMKELO
VUSI
NHLENGETHWA
Plaintiff
And
ROAD
ACCIDENT
FUND
Defendant
CONSENT
I,
the undersigned,
CONSTANT
WILSNACH
do
hereby consent to act as Trustee to
SAMKELO VUSI NHLENGETHWA
should the above Honourable Court deem fit to appoint met as such.
DATED
at PRETORIA on the 16th of September 2014.
AS
WITNESSES
1.
______________________
_____________________
2.
______________________