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[2015] ZAGPPHC 1123
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DEM obo K.O.M v Member of the Executive of Department of Health, North West Province (27605/2015) [2015] ZAGPPHC 1123 (5 June 2015)
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IN
THE COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 27605/2015
DATE:
5/6/2015
In
the matter between:
D
E M. obo K.
O
M.
Plaintiff
and
MEMBER
OF THE EXECUTIVE COUNCIL OF THE
DEPARTMENT
OF
HEALTH,
NORTH WEST
PROVINCE
Defendant
JUDGMENT
A.C.
BASSON. J
[1]
On a previous occasion the respondent - the Member of the
Executive Council of the Department of Health, North West
Province-
accepted liability to the plaintiff (Ms M.) in her representative
capacity for such damages as the plaintiff may prove
were sustained
by K. O. M. ("K.") on [.....] 2003.
Brief
exposition of the facts
[2]
K. was injured at birth on [.....] 2003. On 2 September 2014 this
court ordered the defendant to make an interim payment in
the amount
of R 1,500,000.00 which amount was duly paid. This amount therefore
falls to be deducted from any award made by this
court in these
proceedings. The plaintiff, K.'s mother, claims for future hospital
and medical expenses, loss of earnings and general
damages.
[3]
It is common cause that K. suffered a fracture of the left humerus
and nerve damage which has resulted in Erb's paralysis (also
known as
brachia! plexus injury). He has as a result of the injury effectively
no hand function of his right arm.
[4]
The only issue that was disputed in these proceedings was whether K.
had also suffered a diffuse brain injury due to hypoxia.
[5]
In order to prove that K. did indeed suffer a
diffuse brain injury, various experts
were called
to testify to this effect. The report of Prof Odendaal - a Professor
of Obstetrics and Gynaecology - was admitted when
liability was
conceded. His conclusion was that "...
oxygen deprivation is
manifest
and consistent
with brain
injury".
He also regarded the brain injury as
"probabl
e
"
.
[6]
Dr Jaques du Plessis - a Neurosurgeon - records in his report that
the Apgar score of K. after birth was low and was 2/10 at
one minute
and 7/10 after 10 minutes. All the experts were
ad idem
that this is a very low score and a cause of concern. The
hospital records also record that K. was
"very
limpy
and cyanosed”
one minute after birth. Dr du
Plessis states in his report that it is not certain whether K. has
also suffered mild hypoxic
brain damage but deferred to the
opinions of a paediatric neurologist, neuropsychiatrist and
educational psychologists to express
an opinion in this regard.
[8]
In a lengthy and detailed report, Ms Eleanor Bubb - a Clinical and
Educational Psychologists with many years' of experience-
explains in
meticulous detail how she had arrived at the conclusion that K. had
in fact suffered a diffuse brain injury following
a hypoxic episode.
She confirmed in her evidence that she had conducted tests and
assessments on K. and that she had concluded
that the ability of K.
lies in the low average range. She explained that K. experiences
problems with simple tracking and attention,
that his working memory
and quality of information processing are affected and that he
experiences problems with the fine motor
control on his left hand. K.
also experiences problems with visuo-spatial reasoning and non-verbal
concept formulation and with
short term auditory memory for logical
material. He also experiences difficulties with comprehension and
instructions, arithmetical
skills, verbal fluency, cognitive
flexibility and productivity, to name but a few. She concluded that
present information
suggests that pre-injury K. probably was of
average to high average ability and that he probably would have
obtained a Grade 12
and would have studied further at a University of
Technology. Post-injury his ability is low average to average with
particular
deficits in visuo-spatial/perceptual memory. She explained
in detail that these difficulties are going to become more evident in
his schooling achievement when he enters high school and when greater
demands on higher-order cognitive skills are made with which
he will
not cope. She also explained that as K. enters into adolescence -
when further significant maturity occurs within the brain
- these
areas will not develop at optimum and that the full extent of
the probable brain injury sustained during birth will
come into play
and that further problems can be expected. According to her, K. will
probably only obtain a Grade 9. She recommended
that K. be placed in
a remedial school.
[9]
Dr Louise Olivier - a Clinical- and Neuropsychologists - with years
of experience also submitted an extensive and detailed report.
In
brief she concluded that K. has lasting cognitive-, emotional-, and
behavioural and personality problems due to the trauma
experience at birth and the ramifications of him having to be forced
out of the birth canal and suffering a cerebral hypoxic episode
at
birth. In her report Dr Olivier identifies numerous cognitive
deficits. She also notes that there are clear indications of brain
injury in his profile on the Bender Visual Motor Gestalt Test. She
also identifies indications of clinical depression with an organic
underlay. Dr Olivier also notes that there are clear indications of
especially good cognitive abilities and poor cognitive abilities
which would be consistent with brain injury. She concludes that it
would be highly unlikely for K. to pass Grade 12 with university
exemption and that he will have to focus on the more practical
subjects which will makes it difficult for him to enter the world
of
work because of his physical disability. Dr Olivier also recommended
that any monies awarded to K. need to be protected in a
trust.
[10]
It is clear from the evidence of Dr Olivier and of Ms Bubb that it is
generally accepted that a brain lesion does not necessarily
show up
on a MR scan and that this was the reason why Dr Du Plessis deferred
to the expertise of a Neuropsychologist (Dr Olivier)
and an
Educational Psychologists (Ms Bubb).
[11]
I have already referred to the fact that both Dr Olivier and Ms Bubb
were adamant that K. has a brain injury that probably
stems from
hypoxia at birth. In this regard Ms Bubb specifically referred to the
hospital records that show that K. was cyanotic
after birth and that
he had a very low Apgar score in circumstances where it was common
cause that the saturation of oxygen was
very low. The hospital
records also show that K. was taken to the High Care Unit after
resuscitation.
[12]
Ms Bubb also referred to the fact
that K. did not obtain the developmental
milestones he ought to have obtained and that this indicates
brain injury. Dr Du Plessis also notes in his report that these
developmental milestones could not be explained on the basis of the
brachial plexus injury. Both Dr Olivier and Ms Bubb are of
the view
that it is clear that the reason for the delay in reaching
developmental milestones is probably due to cerebral hypoxia.
Both
experts were also adamant that the cognitive and emotional deficits
were due to a brain injury.
[13]
Even though the clinical psychologists retained by the defendant did
not testify it is clear that she also confirms some of
the deficits,
significantly the slowness, identified by Dr Olivier and Ms Babb. The
defence closed its case without leading any
evidence.
Evaluation
[15]
I am
persuaded on
the
evidence that was
placed
before the court that K.'s
brain
deficits
were
caused
at
birth. The
evidence
of
both Dr
Olivier and
Ms Bubb
were
compelling
and
points to
the conclusion
that
K.
had
suffered a
brain
injury
at
birth. In
this
regard I
had
regard
to
the recent
decision of
the
Supreme
Court
of
Appeals in
Goliath
v
MEG
for
Health,
Eastern
Cape
[1]
where
reference
was
made
to
the
well-known
case
of
AA
Onverlinge
Assuransie-Associasie
in
respect
of
what
must
be
proven
by
a
plaintiff
in a civil case:
"[19]
Thus at the close of Ms Goliath's case, after both she and Dr Muller
had testified, there was sufficient evidence which
gave rise to an
inference of negligence on the part of one or more of the medical
staff in the employ of the MEC who attended to
her. In that regard it
is important to bear in mind that in a civil case it is not necessary
for a plaintiff to prove that the
inference that she asks the court
to draw is the only reasonable inference; it suffices for her to
convince the court that the
inference that she advocates is the most
readily apparent and acceptable inference from a number of possible
inferences
(AA
Onderlinge
Assuransie-Assosiasie
Bpk v De
Beer1982 (2) SA 603 (A);
see
also
Cooper and
Another
NNO v Merchant
Trade Finance
Ltd2000
(3) SA 1009 (SCA))."
Loss
of earnings
[16]
It was not in dispute that K. would have matriculated and would have
obtained a three-year University/Technicon degree/diploma
had it not
been for the injury at birth. In this regard the Actuary has
calculated that this would have yielded earnings for him
of R4, 999,
00.00. For ease of calculation this figure is rounded off to R5
million.
[17]
It must be taken into account that, because K. had suffered the
injuries at birth, many years had to lapse and that many
uncertainties
exists. In light of this fact, it was conceded on
behalf of the plaintiff that a 20% contingency should be deducted in
respect
of general contingencies. Taking this into account the
uninjured earnings amounts to R4 million.
[18]
I have also taken into account the fact that Prof Schreuder - an
Industrial Psychologist - has given evidence to the effect
that K.
would not do much better than a practical Grade 12 or academic Grade
9 qualification.
[19]
According to Prof Schreuder, K. is functionally unemployable in the
open market and may at best obtain sympathetic employment.
Prof
Schreuder, however, accepted that there is a residual earning
capacity of 10%. If this residual earning capacity is taken
into
account this would leave the claim for loss of earnings at R4 million
less 10%. The amount awarded for loss of earnings is
therefore R3.6
million.
Future
medical expenses
[20]
As in the case of the loss of earnings, the parties did not seem to
be in dispute that an amount of R847274.00 would be fair
in the
circumstances. In this regard Ms Bubb has given evidence about what
expenses would be fair and reasonable in respect of
future medical
expenses as calculated by the Actuary. In addition to this amount it
would be necessary for K. to receive occupational
therapy. Dr Rony
Birrel - an orthopaedic surgeon - has also recommended a possible
amputation and some conservative treatment.
General
damages
[21]
The parties had different views in respect of the amount
that should be awarded in respect of General Damages.
What is however
clear from the facts is that K. will from birth until his dying day
never have the use of his dominant right arm:
It will always be a
useless appendage and he may at some stage opt to amputate his arm.
However, apart from the fact that K. suffers
disfigurement, he will
undoubtedly also suffer psychiatric and psychological trauma. K. is
also particularly vulnerability as a
result of the brain injury and
will experience considerable difficulty in dealing with his
disfigurement.
[22]
I have also already referred to the fact that not only did K. suffer
from a brachia! plexus injury; he has also suffered a
brain injury
that has resulted in cognitive deficits and emotional problems. All
of these injuries have effectively wrecked K.'s
employability and
will compromise the rest of his life.
[23]
None of the
parties
could
refer
the court to a matter
similar to
this one.
Both
parties
have however referred me to cases where the plaintiff had undergone
an
amputation of an arm. See in this
regard
Rens
v
MEG for Health:
Northern
Cape
Provincial
Department of
Health
[2]
and
Shadrachk
v
Road
Accident
Fund.
[3]
In the
l
atter
case the court awarded
R1.1
million in respect of General Damages.
The
defendant
also
referred
the
court
to
cases
where
the
courts have
awarded
less
in
respect
of
General
Damages
where
a
person's
arm
was
amputated.
[24]
I have considered the case law dealing with amputations. Although
these cases are not exactly similar, they do offer some assistance
to
the court in arriving at a conclusion in respect of General Damages.
I am of the view that an amount of R1.2 million would be
fair in the
circumstances taking into account the fact that K. had suffered a
brachia! plexus injury as well as a mild brain injury.
[25]
I have provided in my order attached hereto as Annexure "A"
for the creation of a Trust. The Deed of Trust is also
attached to
the order. From the amount awarded to K., an amount o R 1.5 million
must be deducted as having already been paid over
to the plaintiff.
[26]
The total amount awarded to K. is R 5 647 274.00. From this amount
certain amounts must be deducted as provided for in the
attached
order.
[28]
The order marked "Annexure A" is made an order of Court.
___________________________
A.C.
BASSON
JUDGE
OF THE HIGH COURT
NORTH
GAUTENG HIGH COURT
IN
TH
E
H
IG
H COU
RT
OF SOUTH AFRICA
G
AUTENG
DIVISIO
N
. P
RETORIA
CASE
NO : 70876/ 2010
ON
J U N E 2015
BEFOR
E H ER LA DYSH IP MADAM J USTICE BASSO N
In
the matter between:
D.
E. M.
Obo
K.
O.
M.
Plaintiff
AND
M
EM
B
E
R OF TH
E
E
X
ECUTIVE COU
NCI
L OF
T
H
E
DEPARTM
ENT OF H
EALTH,
N
O
RTH
WEST
P
ROVI
NCE
Defendant
O
R
DER
Having
heard counsel and the evidence tendered by the
parties, the following order is made :
1.
1.1 The defendant is ordered to
pay
plaintiff, for the
benefit of K. O. M. ( born [....] 2003)
R5647274.00 (five
million six hundred forty seven thousand two
hundred seventy four; rand);
1.2
The amount in paragraph 1.1 takes into account the interim payment
of Rl,500,000.00 (One Million Five Hundred Thousand
Rand).
2.
The defendant is ordered to pay the plaintiff's costs of suit,
up to and including 2 June 2015, such costs to include :
2.1
the costs of two counsel (up to 25 May 2015) and thereafter the costs
of senior counsel;
2.
2 the reasonable taxable fees for consultation and preparation for
trial, qualifying fees (if any and on proof thereof) of the
following
experts :
2.2.1
Dr Louise Olivier;
2.2.2
Eleanor Bubb;
2.2.3
Dr Dries Schreuder;
2.2.4
Wilma van der Walt;
2.3
it is noted that the
defendant
was ordered on 2
September 2014, to inter alia, pay the reports of Drs Birrell, du
Plessis, Schreuder,
Gladys Maluleke, Eleanor Bubb and Wilma van der W
alt. The defendant is ordered further to pay the report of Dr Olivier
and the
costs of relevant experts for compiling joint minutes
and that of further actuarial reports;
2.4
the cost of establishing the K. O. M. Trust;
2.5
5 the costs of the trustee as if he/she were appointed
as curator
bonis
under the Administration of
Estates Act;
2.6
the costs of the trial enrolled for quantum on 25 May 2015 a nd 1 and
2 June 2015.
3.
The amount in paragraph 1 a nd the costs, once taxed or agreed, are
to be paid into the trust account of Messrs Marais Basson as follows
:
Bank
: Standard Bank
Account
holder : Marais Basson Incorporated
Account
number :
Branch
code : 052750
4.
After deduction of agreed/attorney and client fees due to the
plaintiff's
attorneys of record and their correspondent, and after
payment of disbursements and an advance of R250,000.00 (Two Hundred
and
Fifty Thousand Rand) to the plaintiff, the net proceeds of the
claim are to be paid to the K. O. M. TRUST. A copy of the draft Trust
Deed is attached hereto, with the consent of the proposed trustee.
5.
It is noted that the Plaintiff has agreed to furnish the
Defendant
with at least 14 (FOURTEEN) days written notice of
taxation.
6.
The plaintiff's attorney is entitled to charge contingency fees in
terms of the Contingency Fees Act on the basis of the contingency fee
agreement dated 8 May 2013.
BY
ORDER
REG
ISTRAR
DEED
OF TRUST
entered
into by and between
STEFANUS
PETRUS SASSON
(hereinafter
referred to as the "DONOR")
And
JACO
BUS FR EDERIK DE BEER
(hereinafter
referred to as the "TRUSTEE")
In
terms of which the DONOR donates to the TRUSTEE, the sum of Rl00.00,
which amount is to be held by the TRUSTEE in trust and be
administrated by him in terms of the conditions and terms of this
Deed of Trust as is herein set out:-
1.
DONATION
The
DONOR hereby donates to the TRUSTEE the sum of R100.00, which amount
will be paid to the TRUSTEE and will be received by him
with the
registration of this Deed.
2.
NAME
OF
TRUST
The
Trust will be known as the K. O. M. TRUST.
3.
TRUSTEE
3.1
There will at all stages be one trustee who must be an admitted
attorney or a registered
chartered accountant;
3.2
The TRUSTEE of this Trust will be the person described as TRUSTEE in
the preamble to this
Trust Deed. This office will be held by him for
an indefinite period until his resignation or incapacity or the
termination
of the Trust;
3.3
3 The TRUSTEE must furnish security to the
satisfaction of
the Master of the High Court of South
Africa for the assets of the Trust and for the due compliance of all
his obligations
towards the Trust.
4.
BEN EFICIA RIES
The
beneficiary of this Trust will be K. O. M. with regards to the income
derived from the Trust assets and the capital shall also
be used to
the benefit of K. O. M. in such a way as the TRUSTEE may deem
appropriate. At the death of the mentioned K. O. M. the
Trust's
assets will be transferred to the heirs of K. O. M. as set out in the
Will of K. O. M. or should K. O. M. not leave behind
any will, the
assets will be transferred to the intestate heirs of K. O. M.
in accordance with the provisions of theIntestate
Succession Act.
5.
OBJ ECTIV ES
The
objectives of this Deed of Trust are the following :-
5.1
To maintain and support the said K. O. M. physically and
mentally for
the remaining part of his life;
5.2
The TRUSTEE will as far as possible endeavour to utilize the funds of
the Trust to comply
with the medical needs of the mentioned K. O. M..
In this respect the TRUSTEE will in his discretion, and if he deems
it necessary,
be authorised to make use of medical
advice in overseas countries and if
necessary,
send the mentioned
K.
O. M. to the foreign country if the TRUSTEE in his discretion deem it
to the benefit of K. O. M. and if there are sufficient
grounds
and funds for such advice and medical treatment;
5.3
To provide accommodation to the beneficiaries and one other person
who will act as the beneficiary's
caretaker/nurse if necessary
and affordable.
In
this respect the TRUSTEE will also be entitled in his discretion to
employ people and to remunerate them for services rendered
to K. O.
M. where and if necessary and affordable;
5.4
To do anything that the TRUSTEE in his discretion deem necessary for
the general well-being
of the mentioned K. O. M. and the TRUSTEE will
be entitled to incur such reasonable costs as he deems necessary in
this regard
in his absolute discretion;
5.5
To invest the Trust's assets and to act therewith in such a manner so
as to attempt
to increase same and if possible to cause capital
growth in order for the funds paid over in trust to be administered
for as long
as possible, to the benefit of K. O. M..
6.
ASSETS
The
assets of the Trust will include:-
6.1
The assets donated to the TRUSTEE in terms of this Deed as well as
any additions and accruals
thereto;
6.2
All donations and inheritances donated or bequeathed to the Trust in
supplementation
of the Trust's assets;
6.3
All assets that the Trust may purchase with its own funds or borrowed
funds or that may
be acquired by any other juristic act;
6.4
Any assets that may be allocated to the Trust in terms of an
Order of Court or settlement
of the action.
7.
INCOME FROM THE TRUST
The
income of the Trust will be all income earned
by means of the Trust's assets.
8.
POWERS OF THE
TRUSTEE
8.1
To enable the TRUSTEE to comply with all obligations in
terms of the Deed
of Trust, the TRUSTEE will be entitled: -
8.1.1
To perform any act in general, whatsoever, that is according to his
opinion, beneficial for the preservation and growth of the assets of
the Trust, or in the interest of the Beneficiary. The powers
entrusted to him according to the paragraphs hereinafter do not limit
the generality of this sub-paragraph;
8.1.2
To use any part of the assets or income of the Trust for payment of
any costs reasonably incurred by him in relation to his duties and
obligations as TRUSTEE;
8.1.3
To invest the assets or income of the Trust or any part thereof, in
such a manner as he may deem proper in his discretion. Without
detracting from the generality of the aforementioned clause, he will
be entitled to invest in shares in public companies, building
societies, loans with security, investments in state and municipal
shares, investments in fixed property or any such assets as he may
deem beneficial to the Trust and its beneficiaries which will
also
include moveable assets of whatsoever nature if deemed reasonably to
the benefit of the beneficiaries. Such moveable
assets may be
used or consumed by the TRUSTEE if, in his discretion, it is deemed
to be reasonably in the interest of the beneficiary.
He will
furthermore be entitled to call up any investments, to make any
investments solvent, to convert, amend, realise and to
re invest
such investments in any manner reasonably deemed appropriate;
8.1.4
If the TRUSTEE practices a profession and in such capacity performs
any other act or service on behalf of the Trust, in
such capacity, the TRUSTEE will be remunerated for his professional
services rendered without limiting or reducing his right to
remuneration as stipulated hereinafter;
8.1.5
To institute legal and arbitration proceedings and to oppose same
in
any competent court with regard to any matter forthcoming from the
Trust and to pay the costs incurred in relation thereto
from
the assets or income of the Trust;
8.1.6
To purchase, sell, let, hire or to hire-purchase any assets;
8.1.7
To acquire or renounce, in any manner whatsoever, rights on behalf of
the Trust;
8.1.8
To acquire money through a loan or expend money by way of a loan
on
any conditions and against proper security being furnished where
money is expended by way of a loan;
8.1.9
To encumber any assets of the Trust by way of a bond, pledge,
hypothec or session as security;
8.1.10
To perform all acts on behalf of the Trust which may be necessary to
effect transfer
of any assets of the Trust;
8.1.11
To grant extensions for the complying with any
duty towards
the Trust, to reach compromises and oppose claims
against the Trust, to recognise, and settle same and to handle any
claims in
favour of the Trust in the same manner;
8.1.12
To employ people to perform any act and to remunerate them from the
assets or income
of the Trust. The possibility that the TRUSTEE would
have been able to perform such act himself does not detract from the
aforementioned
entitlement;
8.1.13
To utilize the assets and income of the Trust in such a manner as the
TRUSTEE may
deem proper for the conservation, maintenance or
replacement of any assets of the Trust and to demolish any buildings
if deemed
appropriate by the TRUSTEE to erect new buildings on the
fixed property of the Trust;
8.1.14
To exercise his voting right as deemed appropriate, with regard to
any shares which
belong to the Trust and are held in any company or
society. The exercise of his discretion and
authority
hereunder is not reduced where they directly or
indirectly have an interest in such company or society, neither will
the
TRUSTEE, due to his confidential relationship with the Trust, be
obliged to give account of any benefit, which accrues to them due
to
such interest either directly or indirectly, nor is any act,
agreement or deed of the TRUSTEE void or voidable on the ground
that
they received such benefit. The object of this clause is to avoid
that the consequences of voidability or voidness due to
the
confidential office of the TRUSTEE will supervene and insofar as it
may affect agreements and relationships with companies
and societies
in which the TRUSTEE has a personal interest;
8.1.15
To lend money to any person or legal entity on such conditions as he
in his absolute
discretion may stipulate on the condition
that proper security is provided by the lender;
8.1.16
To enter into insurance contracts and
to pay
the premiums from the assets of the
Trust;
8.1.17
To pay the debts of the Trust;
8.1.18
To accept or refuse donations and inheritances to the Trust;
8.1.19
To open a bank account and to borrow money from a bank on the
overdraft facility or otherwise;
8.2
Notwithstanding the stipulations of paragraph 5.1 or any other
paragraph in this Deed, the
TRUSTEE will not be entitled to dispose
of any assets or income of the Trust for his own benefit or the
benefit of his estate.
Without detracting from the
generality of the aforementioned he will specifically not be entitled
or authorised to appropriate
or to dispose of any of the assets or
income of the Trust as his own, as he deems fit, if he by doing so
will benefit himself or
his estate. The TRUSTEE will furthermore not
be authorised to use or consume any of the assets of the Trust, for
his own benefit
unless so authorised by the Master of the High Court
of South Africa ;
8.3
3 IIf the Trust shows drastic
growth and if the
administration
thereof requires it, the TRUSTEE will be entitled to employ a
person or persons, full time
or part time, to assist with the
administration of the Trust and in this respect
he will
be entitled
to pay a reasonable
salary or remuneration,
which he in his discretion deem appropriate,
to such a person or persons. Control and care over the Trusts
assets will
however always be the responsibility of the TRUSTEE
including fixed property or a bond with regards to any place in
the Republic
of South Africa. In this regard the only
limitation is that investments may only be made within the
borders of the Republic
of South Africa.
9.
BOOKKEEPI NG
9.1
The TRUSTEE must keep a complete set of accounting records with
regard to the affairs
of the Trust;
9.2
The TRUSTEE will ensure that the accounting records of the Trust are
audited by a chartered
accountant and that such accountant will have
free access to the books, documentation and assets of the Trust.
10.
APPLICATIO N OF INCOM E
The
TRUSTEE will use the income of the Trust to pay the administration
costs for the administration of the Trust and to realise
the
objectives of the Trust.
11.
PUTIES
OF
TH
E
TRUSTEE
The
TRUSTEE will:-
11.1
As far as possible endeavour to realise the objectives of the Trust;
11.2
Open a current account with a registered commercial bank of his
choice, which
account will be used for the receipt of all cash which
is paid to the Trust;
11.3
Invest and reinvest the funds of the Trust in such a manner as he may
deem
fit in shares, securities or any assets of whatsoever nature
including fixed property or on bond in any place in the
Republic
of South Africa and in this respect the only
limitation is that investments may only be made within the borders of
the Republic
of South Africa ;
11.4
Amend, regroup or reinvest the investments in such a manner and on
such
conditions and for such objectives as the TRUSTEE in his sole
discretion may deem appropriate;
11.5
See to it that proper minutes of all decisions made by him, are kept
in a safe place;
11.6
See to it that the financial statements of the Trust
for
each year are kept in safe custody for the period of the existence of
the Trust;
11.7
See to it that all contracts are fulfilled;
11.8
Make all payments that may be payable on the income of the Trust;
11.9
If he deems it necessary to effect any amendments to the Trust Deed,
he will be entitled to make the said amendments on condition that
such amendments are approved by the DONOR during his lifetime.
After
the death of the DONOR he will be entitled to make such amendments as
he may deem appropriate on condition that such amendments
will not
amend the objective of the Trust;
11.10
See to it that the set of books that he must open and keep will
immediately become
operational and at the same time appoint a firm of
auditors for the Trust as soon as the Master of the High Court has
registered
this Deed;
11.11
See to it that the firm of auditors that is appointed for the Trust
will at all
times have free access to the books and accounts and
vouchers of the Trust and he further undertakes to obtain such
information
as the auditors may require and to make same available to
the firm of auditors and if explanations are required, to provide
same;
11.12
To report and file statements of account to the Master of the High
Court, Pretoria, as at 28 February
of every y ear.
12.
POWERS OF THE TRUSTEE
The
following people will be incompetent to act as TRUSTEE of this
Trust:-
12.1
Any person who is incompetent to act as a director
of a company in
terms of the stipulations of the relevant Company Laws of the
Republic of South Africa;
12.2
Any person who is an unrehabilitated insolvent;
12.3
Any person who has previously been removed as
a TRUSTEE from a trust
due to his/her misadministration of the said Trust;
12.4
Any person who has previously been found guilty,
in the Republic of
South Africa or elsewhere, of theft, fraud, forgery, perjury,
corruption or any misconduct or offence where
dishonesty was an
element of and resulted in that person being found guilty;
12.5
Any person who has been declared mentally ill
or incapable of
managing his/her own affairs.
13.
TERMI
NATION OF THE TRUST
The
Trust will terminate at the death of the mentioned K. O. M.. It
requires an application to the High Court in Pretoria, to terminate
or dissolve the Trust prior to the death of K. O. M..
14.
DISSOLUTION OF THE TRUST
With
termination of the Trust as a result of the death of K. O. M. the
Trust will be liquidated and the capital will after
all
the administrative costs and debts as well as claims against the
Trust have been paid, be allocated according
to
the stipulations of the will of the
mentioned K. O. M. and if the mentioned K. O.
M. dies
intestate, the net assets of the Trust will be divided equally
between his intestate heirs in accordance with the
relevant
Intestate Succession Act that is applicable in the Republic of South
Africa. If the Trust is terminated by Order
of the Master of the High
Court of South Africa, the funds will be paid out in accordance with
the stipulations of such order.
15.
EXEMPTIONS
With
regard to the aforementioned the following exemptions will be
applicable:-
15.1
No TRUSTEE will be incapable due to his office as TRUSTEE of this
Trust, to enter into a contract with the Trust or any company in
which the Trust has an interest. Furthermore any contract entered
into between the Trust and such company will not be
void due to the Trustee's interest in the company. The only
requirement with regard hereto, is that the TRUSTEE must before
any negotiations are entered into, disclose his interest
in the
contract or entity, to the Master of the High Court of South Africa
before such negotiations take place;
15.2
Any TRUSTEE, who is a member of or a partner in a firm of
professional
practitioners, may be employed by the Trust or render
services for the Trust and in such instance the TRUSTEE will be
entitled
to a fee in his professional capacity;
15.3
No TRUSTEE will be requested to make good any damages that the Trust
may have
suffered, regardless of how such damage was caused, with the
exception of such damage that was caused by the dishonesty of a
TRUSTEE
or as a result of his negligence;
15.4
No TRUSTEE will be liable for any dishonesty or wrongful act
committed by any
other TRUSTEE unless such a TRUSTEE had knowledge
thereof and allowed such dishonest acts or acted as an accessory;
15.5
The TRUSTEE shall be indemnified out of the assets of the Trust with
regards
to any claims that may be instituted against him personally
and which result from the reasonable acts of the TRUSTEE and the
exercise
of any of his competencies which he/she is entitled to
exercise in terms of this Deed.
16.
REM
U
N
E
RATION
If
the TRUSTEE is a professional person, he will be entitled to his
reasonable professional fees for any professional work done
for the
Trust. Such fees will include any fees that are reasonably payable to
his partners and he will further be entitled to make
use of the
services of other similar professional people as also auditors,
medical doctors, attorneys and advocates. With regard
to services
rendered by the TRUSTEE for the general administration of the Trust
and arrangements which he will make with regard
to the care of the
mentioned K. O. M., the TRUSTEE will be entitled to a yearly fee as
stipulated in the relevant legislation of
the Republic of South
Africa.
17.
ACCE PTANCE
The
TRUSTEE hereby accepts the donation made to him according to this
Deed subject to the conditions of this Deed and further undertakes
to
realise the objectives of this Trust Deed.
SIGNED
at PRETORIA on this the
day of MAY 2015.
AS
WITNESSES:
1.
DONOR
2.
SIGNED
at PRETORIA on this the
day OF MAY 2015,
AS
WI
T
NESSES:
1.
TRUSTEE
2,
IN
THE HIG H COU RT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO : 70876/2010
In
the
ex
parte
application of:
D.
E.
M.
Plaintiff
(IN
RE :
THE
APPOINTMENT OF A TRUST FOR K. O. MALAD
(born
[.....] 2003)
I,
the undersigned
JACOBUS
FR
E
DERIK
DE
BEER
confirm
that :
1.
I am practising as an attorney at the firm,
Gildenhuys
Malatji, Pretoria.
2.
I am not related to the patient and he is not known to me.
3.
I agree to act as trustee for K. O. M..
JACOBUS
FR
E
DERIK
DE
BEER
[1]
2015 (2) SA 97 (SCA).
[2]
Case number 799/2006.
[3]
Case number 64897/2010.