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[2015] ZAGPPHC 224
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De Kock v Road Accident Fund (3237/2013) [2015] ZAGPPHC 224 (22 April 2015)
SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, PRETORIA
CASE NO:
3237/2013
DATE: 22 APRIL
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
DE KOCK, MAXIE
HELENA
.............................................................................................................
Plaintiff
and
ROAD ACCIDENT
FUND
...............................................................................................................
Defendant
JUDGMENT
N
F KGOMO. J
:
INTRODUCTION
[1]
The plaintiff instituted an action against the defendant for damages
arising out of injuries she sustained when she was involved
in a
motor vehicle accident or collision on 26 October 2011 at
approximately 23h00 along the Mabopane Highway in Pretoria. She
was a
passenger in a motor vehicle with registration letters and numbers
CWH 474 MP
(“the insured vehicle”)
then
and there driven by one M Lubbe.
[2] The parties have
settled and agreed on the merits, i.e. that the defendant are 100%
liable for the proven or agreed damages
that the plaintiff may have
suffered.
[3] During the
previous court appearance herein, the defendant made an interim
payment of R1 000 000,00 (one million rand) to the
defendant.
[4] This amount will
have to be deducted from the figure this Court arrives at at the end.
[5] Past hospital
expenses were agreed at the amount of R301 643,39.
[6] Issues to be
decided in this judgment are general damages and future loss of
earnings.
[7] The plaintiff is
claiming R1 200 000,00 (one million two hundred thousand rand) in
general damages. The defendant is offering
R1 000 000,00 (one million
rand).
[8] On loss of
earnings the parties differ on whether the plaintiff would have
attained a degree or diploma post-accident, as well
as on the
contingencies to be applied.
[9]
The plaintiff sustained serious orthopaedic and severe brain Injury.
Both the plaintiff’s and defendant’s neuro-surgeons,
Drs
C M Lewer-Allan and B A Okolie as well as the two
neuro-psychologists, Ms M Gibson and Mr J Redelinghuys are agreed
that the
plaintiff suffered serious brain Injuries from which
neuro-psychological
sequelae
would
be expected. The two neurosurgeons, to whom the neuro-psychologists
deferred, agreed that the plaintiff suffered a severe
diffuse brain
injury with a risk of developing epilepsy estimated at 3-5%. The two
psychiatrists are agreed that as a result of
the serious orthopaedic
and brain injury she has an Organic Brain Syndrome with depressed
mood. The two occupational therapists
are agreed that the plaintiff,
when evaluated post-accident, showed competitive performance in
activities falling within light
to light-medium physical parameters.
They also agreed that from a physical perspective, although she is an
equal competitor in
the open labour market, her residual physical
capacity qualifies her to work in jobs falling within light physical
parameters.
They further opined that her prognosis regarding her head
injury leading to an inability to study further, poor memory, poor
social
skills leads to an opinion that when considering her cognitive
limitations as set out by various relevant experts in their reports,
her ability to function optimally and adequately in the workplace may
have been compromised negatively, such that she would need
employment
where the environment is supportive and non-stressful.
[10] The two
industrial psychologists are agreed that:
10.1 The plaintiff’s
earnings and income level was R2 600,00 per month at the time of the
accident;
10.2 But for the
accident, she would probably not have suffered from
neuro-psychological difficulties that would have precluded
her from
studying further, i.e. beyond her Grade 12 or matric as at the moment
and/or that that would have impacted on her preaccident
competitiveness for and productivity and sustainability in future
potential employment.
10.3 Considering her
socio-economic background as well as the neuro-psychologist, Dr
Gibson, it is anticipated that she would have
been able to further
her education at a tertiary level, completing diploma level studies
at the least.
10.4 In any case,
the plaintiff would have lost her job because the firm she worked for
closed down in December 2011. However, the
experts agreed that the
period she would have been unemployed was estimated at about three
months after which she would have secured
work of a semi-skilled
nature. Her initial earnings would have fallen between middle and
upper range for semi-skilled workers in
the non-corporate sector in
the range of about R5 000,00 per month. They also agreed that after
two years or so she would have
on all probabilities secured
employment in the formal labour market. Her salary would then have
fallen at the median of A3 Paterson
level of around R6 500,00 per
month.
10.5 The industrial
psychologists also agreed that the plaintiff would on all
probabilities have studied part-time while working
from 2012 until
around 2016 and obtained her tertiary qualification. Her salary would
have correspondingly increased to around
R12 282,00 upon completion
of her diploma studies at NQF level 6. From 2017 she would then have
secured employment at a large company
in the formal labour market.
10.6 They further
agreed that she would have probably reached her earning ceiling on
Paterson C level at the median of C4 Paterson
level at age 42,5 years
in a straight line progression to Paterson level C3/C4 total package.
The accompanying income level is
around R38 257,00 per month.
10.7 She would
probably have continued working until age 65 with the option of
retiring at age 60.
10.8 Several
unpredictables including preferences and workplace policies would
have affected or influenced the way forward.
[11] Post-accident
the plaintiff was unemployed for 10 months, receiving a full salary
for October and November 2011 and 50% thereof
for December 2011. She
was thus entitled to compensation for partial past loss of Income.
[12] During
September 2012 and December 2013 the plaintiff worked as a counter
clerk or assistant at Las Vegas Costumes, earning
R3 500,00 per
month. She resigned in January 2014 and started work at Plastics R
Us, still earning R3 500,00 per month as at the
time of her
assessment by the industrial psychologists.
[13] From August
2014 she resigned her previous post and started her own business,
which has not been very successful.
[14] The experts
agreed further, that the plaintiff was still going to be absent from
work so as to attend to treatment and therapies
recommended by
applicable experts. She ought to be compensated for such leave of
absence. The entire process would then be subjected
to contingencies.
[15]
Generally and in conclusion, the industrial psychologists were agreed
that the plaintiff has been rendered less competitive
in the open
labour market due to the
sequelae
of
the brain injury she sustained as a result of the accident. Her
employment prospects have consequently reduced significantly
relative
to what they were, but for the accident.
[16] Dr Fine
concluded that the plaintiff may even lose her current employment if
she displays demotivation and less emotional control.
Ms Gibson
opined that she may do so if her relationship with work colleagues is
poor and her job loyalty is low. They suggested
that this can be
cured or balanced by the application of appropriate contingencies.
ACTUARIAL
CALCULATIONS VS BLIND PLUNGE INTO ESTIMATION BY COURTS
[17]
In this matter the two sides are almost
ad idem
as
to the kind of losses the plaintiff may have suffered. Each side then
instructed its actuary to quantify the loss of earnings.
They
(actuaries) adopted slightly different methodologies resulting in
substantially different awards.
[18] To resolve this
impasse, this Court is presented with extensive actuarial evidence by
Ivan Kramer CC on behalf of the plaintiff
and Alexander Forbes on
behalf of the defendant.
[19]
Before dealing with the respective reports and their conclusions it
is necessary that a foundation is laid by referring to
the
traditional method of calculating future loss of income in order to
determine the extent to which the provisions of the amendment
to the
Road Accident Fund Act, 56 of 1996
(“the Act)
have affected this traditional
method.
[20] Section
17(4)(c) of the Act as amended is of application here.
[21] The court’s
task of quantifying claims where the putative future loss of income
or loss of earning capacity of young
persons is to be quantified, is
notoriously difficult and the judicial dilemma has been highlighted
on many occasions,
“
...
sometimes
in very colourful language
..
.”
1
[22] In approaching
claims of this nature, the courts have always had open to it two
possible approaches, namely:
22.1 either that the
Judge makes a round estimate of an amount which seems to him to be
fair and reasonable. That process is entirely
a matter of guesswork -
a blind plunge into the unknown;
or
22.2 that the Judge
tries 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.
[23]
It is manifest that either approach involves guesswork to a greater
or lesser extent. However, the court cannot for this reason
adopt a
non possumus
attitude
and make no award.
[24] The inherent
difficulties and uncertainties therein manifest, it has generally
been accepted that it is preferable to make
an assessment based on
actuarial calculations rather than to take a blind plunge into the
unknown.
[25] I prefer this
approach.
[26] Where the
actuarial approach is adopted, the traditional method entails a
four-stage process as follows:
26.1 Calculate the
present value of the future income which the plaintiff would have
earned but for the injuries and the consequent
disability.
26.2 Calculate the
present value of the plaintiffs future income, if any, having regard
to the disability.
26.3 Subtract the
figure obtained under 26.2 from that obtained under 26.1.
26.4 Adjust the
figure obtained as a result of this subtraction in the light of all
relevant factors and contingencies.
[27]
Applying the above
criteria
,
in calculating the plaintiffs estimated future income, the
traditional method entails the following steps:
27.1 Ascertain the
likely career path that the plaintiff would have followed had she not
been injured. This requires assessment
of elements such as academic
and vocational qualification; promotion; chosen profession or job;
likely rate of remuneration including
fringe benefits; working
lifespan; and retirement.
27.2 The raw data
obtained in step 27.1 above is then fed to an actuary who calculates
the present value of the plaintiff’s
future income stream by
taking into account the net capitalisation rate which, in turn, takes
into account the expected rate of
investment return less the expected
fixed rate of inflation; the relevant life tables i.e. the claimant’s
mortality index;
and the applicable rate of income tax.
27.3 Ascertain the
same facts as in 27.1 above relating to the plaintiff, now that she
is injured and repeat the exercise in 27.2
above with regard to the
plaintiff’s future income stream in her injured position or
condition.
[28] Only after the
above exercises had been performed will the final adjustment be made
in order to provide for contingencies in
respect of both income
streams separately, after which the plaintiffs net loss can be
determined.
[29]
Where the above method is followed, a lot of guesswork is removed
from the process of quantification while at the same time,
casing the
cash flow of the Road Accident Fund
(“the Fund
”
).
The disadvantage of this method is that it undoubtedly adds
immeasurably to the administrative workload of the Fund. Furthermore,
it requires the co-operation and substantial agreement of both
parties.
IMPACT
OF S 17(4)(c)
OF
AMENDMENT ACT ON THE TRADITIONAL
METHOD
[30]
Before its amendment s 17 of the Act obliged the Fund to compensate a
third party, without limitation, for any loss or damage
suffered by
such third party as a result of, e.g. bodily injury to him or her,
caused by or arising from the driving of a motor
vehicle by another
person. This was in line with the avowed purpose of this class of
social security legislation which is among
others to provide, as
judicial precedent suggests, the fullest possible protection to
victims of road accidents.
2
[31] The amended s
17 limits the obligation of the Fund to compensate third parties in a
number of respects. The limitation relevant
or material to our
present case is that placed on claims for loss of income, which now
falls to be calculated, irrespective of
actual loss, on the basis of
a maximum annual loss. It introduced a so-called “cap” on
the claim.
[32] The material
provision i.e. s 17(4)(c) reads as follows:
"...
(c) includes a claim
for loss of income or support, the annual loss, irrespective of the
actual loss
,
shall
be proportionately calculated to an amount not exceeding
-
(i)
R160 000 per year in the case of a claim for loss of income
...”
3
[33]
After several challenges to this amendment, the Constitutional Court
endorsed the cap of R160 000,00 per year.
4
[34]
It is my view and finding that it is not necessary for this Court, in
determining the amount of loss of earnings by the plaintiff,
indulge
in sophisticated and intelligent arguments and expositions. The issue
of the “cap” should not be over-stated.
As
Sutherland
J
held
in
Sil
and Others v RAF:
5
“
...
the purpose of the
cap is to limit merely the sum to be paid, and its purpose is not to
interfere with or in the calculation of
the loss
...”
[35]
It is my considered view also that, as
Sutherland
J
also
found, that the practice of calculating contingencies as it has
existed for decades need not be disturbed. It boils down to
the
following: In our present matter, the contingencies are to be applied
to the calculation of actual future loss of earnings
before applying
the capped limitation.
6
[36] In the vast
majority of cases people, like the plaintiff herein, earn less than
the annual cap. Consequently, the calculation
of their claims for
loss of income will not be affected by the cap. Their claims for loss
of earnings or income will accordingly
continue to be calculated in
accordance with the traditional method.
[37]
The parties are agreed that there was nothing meaningful that would
have stood in the way of the plaintiff attaining a degree
qualification
post
-accident.
When asked to comment on this aspect, the defendant’s counsel
could not come forth with anything to gainsay the
above. In any
event, the plaintiff had always submitted that she would attain a
degree level qualification.
[38] After listening
to very persuasive argument and submissions from the plaintiffs
counsel, this Court agrees and rules that the
calculations of the
amount payable to the plaintiff in respect of loss of earnings should
be made up of a median between the amounts
calculated in respect of a
diploma and a degree. The plaintiffs actuaries have done such an
exercise which can be found as a last
page of their actuarial report.
Although the defendant’s counsel did not differ much with the
above submission, he suggested
a contingency of 15% on accrued value
of income and 25% to 35% on prospective income. The plaintiffs
submission was a 5% on accrued
value and 20% on prospective income,
up to 25% in respect of a degree.
[39] After weighing
the probabilities against the proven facts this Court finds that the
plaintiff could have easily attained a
degree-level tertiary
qualification. In the circumstances, the method of calculation to be
adopted is that which was suggested
by the plaintiffs counsel and
documented in their actuarial report. The defendant’s
suggestion of 15% and 25% to 35% contingencies
on the amount so
arrived at is not supported by the facts and circumstances on the
ground.
[40] It is my
considered that a tendency has developed among practitioners of the
law in cases involving contingencies to assume
that their application
to the amount found to be appropriate for or to be awarded to a
claimant, is a given. That they must at
all times be applied.
[41] It is my
further view that this perception or understanding is misplaced.
[42]
I agree with the findings of the court in
Road
Accident Fund v Reynolds
7
as read together with the authorities therein quoted. In reviewing
the approach our courts adopt when dealing with the question
of
contingencies the learned judge therein stated the following:
“
Thus,
allowing for contingencies is one of the elements in exercising the
discretion to award damages
.
(CF Southern
Insurance Association Ltd v Bailey NO
1984 (1) SA 98
(A) 116H.)
[6]
Contingencies may consist of a wide variety of factors. They include
matters such as the possibility of error in the estimation
of a
person's life expectancy, the likelihood of illness, accident or
unemployment which in any event would have occurred and therefore
affects a person’s earning capacity (Minister of Defence and
Another v Jackson, supra, at 34F-H. Boberg “Deductions
from
Gross Damages in Actions for Wrongful Death
”
(1964)
81 SALJ 194
at 198). Contingencies may be positive or negative
.
Not all contingencies
are negative involving a reduction of the award. In Bresatz v
Przibilla
[1962] HCA 54
;
(1962)
36
ALJR 212
(HCA) at 213
(cited with approval in Minister of Defence and Another v Jackson
supra at 34H-J and in Southern Insurance Association
Ltd v Bailey NO
1984 (1) SA 98
(A) at 117B-D the following
w
as
said:
‘
It
is a mistake to suppose that it necessarily involves a “scaling
down”. What it involves depends, not on considering
what the
future might have held for the particular concerned. He might have
fallen sick from time to time, been away from work
and unpaid. He
might have become unemployed and unable to get work. He might have
been injured in circumstances in which he would
receive no
compensation from any source. He might have met an untimely death.
Allowance must be made for these
contingencies
or
vicissitudes
of life
as they
are glibly called. But this ought not to be done by ignoring the
individual case and making some arbitrary subtraction ...
Moreover,
the generalisation that there must be a
“
scaling
down
”
for
contingencies seems mistaken. AH
“
contingencies
”
are not adverse; all
vicissitudes are not harmful. A particular plaintiff might have had
prospects or chances of advancement and
increasingly remunerative
employment. Why count the possible buffets, and ignore the rewards of
fortune. Each case depends on its
own facts. ’
[43]
Consequently, after listening to submissions from counsel on both
sides and considering the matters raised and argued, it is
my view
and finding that an appropriate contingency deduction to be applied
to the “
uninjured
’
earnings
would be 5% bearing in mind the following positive and negative
factors:
43.1 The plaintiffs
career path would have reached a ceiling at the level of Paterson
C3/C4 on the basis that she would have obtained
a national diploma at
worst and a university degree at best, both of which are conservative
predictions since it is premised on
her having been expected to
definitely attain a diploma qualification and possibly obtaining a
university degree.
43.2 The possibility
of the plaintiff actually attaining a university degree which would
push her up to the Paterson D band with
commensurate higher earnings
looms bright on the horizon when the facts and circumstances herein
are anything to go by.
43.3 Environmental
factors such as family background and backing, circumstances of the
extended family and work ethic of the family
points to there having
been encouragement to a motivated and carrier-hungry individual.
43.4 The evidence do
not exclude the fact that it would have been within the plaintiffs
ability to have obtained a tertiary education
qualification and
embark upon a successful career in his chosen field.
[44] In the final
analysis, a contingency percentage on the accrued capital in respect
of both the diploma and degree basis should
be 5%. On prospective
earnings it should be 20% in respect of a diploma and 25% in respect
of a degree. A median of the two scenarios
should then lead us to an
appropriate loss of earnings.
[45] When applying
the above contingencies to the calculated amounts about which both
sides do not have serious differences, the
following evolves:
45.1 But for the
accident, gross accrued value of income in respect of the diploma
basis is R244 882,00. In respect of a degree
it is R248 404,00.
Having regard to the accident the loss amount should be R79 862,00.
When the 5% contingency is applied the deductions
amount to R12
244,00 for a diploma and R12 420,00 for a degree. There is no value
having regard to the accident. The net accrued
value of income is
R232 638,00 for diploma and R235 984,00 for a degree.
45.2 Gross
prospective value of income but for the accident is R6 830 289,00 for
a diploma and R8 361 182,00 for a degree. Contingency
will be R1 366
058,00 for a diploma and R2 090 296,00 for a degree. The net
prospective value of income would thus be R5 464 231,00
for a diploma
and R6 270 886,00 for a degree.
45.3 The total value
of income arrived at will be R5 696 869,00 for a diploma and R6 506
870,00 for a degree. The total value having
regard to the accident is
R79 862,00.
[46] When
calculating the value of income using the median route, taking into
account the contingency deductions as used in the
above scenario, the
situation pans out as follows:
46.1 But for the
accident for diploma and degree scenario, the net accrued loss for
the diploma scenario will be R152 776,00. For
a degree it will be
R156 122,00. The average of the two becomes R154 449,00.
46.2 For the net
prospective loss it is R5 484 231,00 or a diploma and R 270 886,00
for a degree. The average or median scenario
is thus R5 867 559,00.
46.3 The total loss
of income in respect of a diploma comes to R5 617 007,00 and for a
degree it is R6 427 008,00. The average of
the two scenarios is a
total of R6 022 008,00.
[47] Consequently,
the total loss of income payable to the plaintiff is R6 022 008,00.
CONCLUSION
[48] This Court has
taken a median or average on the general damages by adding the
plaintiffs demand of R1,2 million to the defendant’s
offer of
R1 million. It comes to R1 100 000,00 (R1,1 million). In any case,
the two parties were not far from each other.
MEDICAL AND
HOSPITAL EXPENSES
[49] This aspect was
partly dealt with by Ledwaba DJP on 27 May 2014 when issues like
future medical expenses were finalised and
a Draft Order to that
effect was made an order of court. Past hospital and/or medical
expenses were settled at the amount of R301
643,39 but are not
included in that Draft. Future medical and/or hospital expenses were
catered for in an Undertaking in terms
of the Act.
INTERIM
PAYMENT
[50] The interim
payment in the amount of R1 000 000,00 paid out to the plaintiff
needs to be deducted from the total amount payable
to the plaintiff
after the exercise we engaged in today.
[51] Total payment
or entitlement for loss of earnings or impairment of earning capacity
is R6 022 008,00. General damages is R1
100 000,00. The grand total
of the above two heads of damages is thus R7 122 008,00. When the R1
000 000,00 interim payment is
deducted from this amount, the total
amount payable to the plaintiff and which should be made an Order of
this Court is R6 122
008,00 plus past hospital expenses of R301
643,39 bringing up a total capital sum of R6 423 651,39.
[52] The plaintiffs
counsel handed in a Draft Order with no opposition from the
defendant’s side, that fully sets out what
the former believes
the Court Order should look like. I have perused this Draft Order and
there is nothing contentious in it. It
caters for the setting out
therein of the total capital amount payable by the defendant to the
plaintiff. The aspect of the setting
up of a Trust is also set out
therein.
[53] This Draft
Order is accepted, marked “X” and authenticated with my
signature and date, and it fully depicts the
capital amount payable.
ORDER
[54] Order is
granted in terms of Draft Order “X” which is made Order
of Court and the Draft Order is annexed to this
judgment, formTrv^ an
integral part hereof.
N F KGOMO
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, PRETORIA
FOR THE
PLAINTIFF: ADV SIDDLE SC
INSTRUCTED BY: DE
BROGLIO INC
BROOKLYN,
PRETORIA
TEL NO: 011 446
4200
FOR THE DEFENDANT
INSTRUCTED BY:
IQBAL MAHOMED ATTORNEY
VERMEULEN STREET,
PRETORIA
TEL NO: 012 324
2203
DATE OF HEARING:
11 FEBRUARY 2015
DATE OF JUDGMENT:
13 MARCH 2015
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA)
Case No:
3237/2013
Pretoria, 11
February 2015
Before The
Honourable Judge Ledwaba DJP:
In the matter
between:
DE KOCK, MAXIE
HELENA
............................................................................................................
Plaintiff
and
ROAD ACCIDENT
FUND
...............................................................................................................
Defendant
DRAFT ORDER
HAVING heard
counsel and having read the documents filed of record, and by
agreement between the parties, it is ordered that:
1.
Defendant shall pay to the Plaintiff a capital amount of R 6423
651-39 (six million four hundred and twenty three thousand six
hundred and fifty rand thirty nine cents) as compensation for
delictual damages to Maxie Helena De Kock (“the patient").
2. The capital
amount shall be paid into the account of Plaintiffs’ attorneys,
De Broglio Inc Trust Account, Account number
1469 186 160, Nedbank,
Business Northrand Branch, through means of a direct transfer on or
before 28
th
March 2015.
3. The plaintiffs
attorneys of record shall retain the aforesaid amount, net of the
attorney’s costs, in an interest-bearing
account in terms of
Section 78(2)(A) of the Attorneys Act, for the benefit of the
patient, pending the creation of the trust referred
to in 4 below and
the issuing of letters of authority.
4. The plaintiffs’
attorney of record shall pay the amount set out in 3 above, together
with any accrued interest, over to
the trustee of a trust, which is
to be created within four months from date of this order, and in
respect of which trust, the following
shall apply:
4.1 The trust shall
be created in accordance with the trust deed which shall contain the
provisions set out in annex A hereto and
which is to be established
in accordance with the provisions of the Trust Property Control Act,
number 57 of 1988, in favour of
the patient;
4.2 The trust shall
have as its trustee, Standard Trust Limited, registration number
1880/000010/06, with those powers and duties
as set out in annex A
hereto;
4.3 The trustee
shall:
4.3.1 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 plaintiffs attorneys of record taxed,
unless agreed;
4.3.2 be obliged to
render security to the satisfaction of the Master of the High Court;
4.3.3be entitled to
administer on behalf of the patient, the undertaking referred to in 6
below and to recover the costs covered
by such undertaking on behalf
of the trust for the benefit of the trust.
4.3.4 At all times
administer the trust to the benefit of the patient.
4.4 Shall not be
capable of being amended without leave of the court.
5. In the event of
the trust not being created within four months from date of this
order, plaintiff and her attorney are directed
to approach this court
within four 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
the patient.
6. The Defendant has
previously furnished the patient and/or the trustee referred to in 4
above with an undertaking in terms of
section 17(4)(a) of the Road
Accident Fund Act 56 of 1996 (‘the undertaking”), to
reimburse the patient and/or the
trustee for the cost of the patient
for future accommodation in a hospital or nursing home, or treatment
of, or the rendering of
a service, or the supplying of goods to her,
arising out of the injuries sustained by the patient in the motor
vehicle accident
that occurred on 26 October 2011, after such costs
have been incurred and upon proof thereof. In addition, the
undertaking shall
include the costs of creation of the trust referred
to in 4 above, 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.
7. The defendant
shall pay the cost of the cause of the plaintiff and the patient,
including the following:
7.1 the costs of:
7.1.1 obtaining
expert medico-legal reports delivered in terms of Rule 36(9)(a) and
(b);
7.1.2 the
qualification fees, including the costs of obtaining medico-legal
reports in respect of the patient and the costs consequent
upon the
preparation of joint minute, if any;
7.1.3 The costs
consequent upon the reports and calculations of Ivan Kramer, Actuary.
7.1.4 The taxed or
agreed costs of Senior Counsel.
7.2 The plaintiff
shall, in the event that costs are not agreed, serve the notice of
taxation on the Defendant attorney of record.
7.3 The plaintiff
shall allow the defendant seven court days to make payment of the
taxed costs.
8. This order must
be served by the plaintiffs 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
REGISTRAR
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA)
Case No:
3237/2013
ANNEXURE“A”
TO DRAFT ORDER OF
COURT DATED 11 FEBRUARY 2015
DEED OF TRUST
MEMORANDUM OF
AGREEMENT
ENTERED INTO BY AND
BETWEEN
De Broglio
Incorporated represented by Michael de Broglio (hereinafter referred
to as the “Donor")
And
Standard Trust
Limited represented by __________________________Registration number
1880/000010/06 (hereinafter referred to as the
“Trustee”)
WHEREAS
the Donor is obliged in terms of an order of the North Gauteng High
Court, Johannesburg under case number 3237/2013 dated 11 February
2015 to create a Trust for the benefit of the Beneficiary upon the
terms and conditions set out below.
AND WEREAS
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 condition in this Trust Deed.
NOW THEREFORE THE
PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
1.1 In this Trust
Deed, unless the contrary appears for the context, the following
expressions shall have the following meanings:
TRUST : the Trust
created in terms of this Trust Deed;
TRUSTEE: the
original Trustee and any person succeeding the original trustee
appointed in terms of this Trust Deed;
CAPITAL
BENEFICIARY
MAXIE HELENA DE KOCK
(Identity number: [...])
INCOME BENEFICIARY
the Capital Beneficiary;
BENEFICIARY: the
Capital- and/or Income Beneficiary;
TRUST ASSETS: the
donation made in terms of clause 4 below 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 contest, words importing the
singular shall include the plural and vice versa and words
relating
to ender shall include the other gender and bodies corporate and
words relating to persons shall include bodies corporate
and
vise
versa.
1.3 The 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 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
MAXIE HELENA DE KOCK TRUST.
4. DONATION AND
VESTING OF RIGHTS IN TRUST ASSETS
The donor hereby
donates to the Trustee the sum of R 100-00 (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. APPOINTMENT OF
TRUSTEES
6.1 The 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;
7.3 To 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/or income of the Trust
ALIENATION 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 provide a market related price is obtained.
7.5 IMMOVABLE
PROPERTY
7.5.1 To purchase,
exchange or sell immovable property in any other manner and upon such
terms and conditions as may be deemed fit;
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, subdivision,
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 BANK ACCOUTS
To open and operate
bank accounts in the name of the trust.
7.8 BUSINESS
To conduct any
business in the name of the trust for profit.
7.10 LETTING AND
HIRING
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 INSOLVENCY
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
INVESTMENTS
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 county 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 VESTING OF THE TRUST ASSETS
10.1 Subject to the
provisions of this trust deed and in particular the provisions of
this clause, the trustees shall, in the administration
of the trust
assets, follow such procedures ad take such administrative steps as
it deems necessary from time to time, subjected
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 ail
respects subject thereto that the trustee
shall at all times act in
the best interest of the beneficiaries.
11 TERMINATION OF
TRUST AND 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 Beneficiary.
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 Income.
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 Income 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 TERMINATION OF
TRUST AND DISTRIBUTION OF ASSETS
The trust shall
terminate upon the death of Maxie Helena De Kock and the remaining
net assets be distributed upon termination in
accordance with Maxie
Helena De Kock’s succession regime at the time of death.
13 EXCLUSION OF
BENEFITS FROM COMMUNITY 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 TAXES
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 following
witnesses:
AS WITNESS
DONOR
AS WITNESS
TRUSTEE
AS WITNESS
EXECUTED by the
said
STANDARD TRUST
LIMITED
1
Sweatman v Road Accident Fund
2013
JDR 2821 (WCC) per Griesel J.
2
See
Law
Society of South Africa v Minister of Transport
2011
(1) SA 400
(CC) at para [40].
3
This was operative figure when Amendment Act came into operation on
1 August 2008. On 31 October 2013 it was adjusted to R213
675 (see
BN 209 in Government Gazette 36951 of 25 October 2013) as allowed by
s 17(4A)(a) of the Act as amended.
4
See
Law
Society v Minister of Transport
paras
[81]-[86].
5
2013 (3) SA 402
(GSJ) at para 113].
6
See also
Jonosky
v RAF
2013
(5) SA 356
(GSJ) at paras [12] and [13].
7
Unreported case 18.2.2005.