About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2024
>>
[2024] ZAECBHC 12
|
|
M.M v Member of the Executive Council for the Department of Health, Eastern Cape (920/2021) [2024] ZAECBHC 12 (27 May 2024)
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
(EASTERN CAPE
DIVISION, BHISHO)
CASE NO:920/2021
In the matter between:
M[…]
M[…]
PLAINTIFF
And
MEMBER OF THE
EXECUTIVE COUNCIL
FOR THE DEPARTMENT OF
HEALTH,
EASTERN
CAPE
DEFENDANT
JUDGMENT
ZONO AJ:
Introduction
[1] This matter was duly
set down for trial on 20 May 2024. The allocation of a trial date and
set down was a sequel to the following
incidences.
1.
On 01 September 2022 the court granted an
Order in terms of Rule 33(4) of the Uniform Rules of Court,
separating the issue of liability
from that of
quantum
.
The matter was then ordered to proceed on merits on the date of the
trial, with the issue of
quantum
being postponed
sine die.
Apparently, this court granted an Order by agreement in terms of
which the defendant was found liable to pay the plaintiff all
such
damages as the plaintiff in both her personal and representative
capacities may prove as a result of the negligent treatment
of the
plaintiff and her minor child, A[...] M[...](who was born on 26 March
2016) by the defendant’s employees.
Quantum
was postponed
sine
die
to a date to be arranged with the
registrar. This Order was taken on 31 March 2023.
[2] On 20 May 2024 the
parties sought to stand the matter down as they were finalizing
settlement negotiations on
quantum
. On 21 May 2024 the parties
came before me with a draft order which they said it is taken by
consent. We agreed that it will be
made an Order of court on record
in the open court.
[3] Both parties
indicated that they sought audience on a crisp issue relating to the
manner or method of payment of costs of Carers
or caregiving. The
defendant expressly indicated that they have no issue with the duty
to pay costs of Carers or care giving, but
they have to be paid on
installments or on staggered payments.
[4] On arrival in court,
after submissions had been made on behalf of the plaintiff, the
counsel for the defendant, in his submissions,
sought to renege from
the agreement indicated to me in Chambers. The submissions were that
the defendant does not agree to the
amounts set out in the draft
order. Upon serious probe by the court, counsel for the defendant
confirmed that the Order is by agreement,
but he disagree with the
lumpsum payment of the amounts set out in the draft order. The
counsel for the defendant was at pains
show reference to the lumpsum
payment in the court order. He contended for payment thereof
in instalments or staggered
payments. The defendant’s counsel
could not even lay the basis for such contention, notwithstanding my
invitation to support
the contention. The Order sought by consent was
ultimately granted.
Costs of Carers or
“caregiving”
[5]
The counsel for the defendant shifted his focus to the costs of
Carers or caregiving. He disputed the amounts of costs of Carers
or
caregiving. This dispute was not the kind or nature of dispute the
parties agreed to seek resolution of in court. Their agreement
was
that they would seek court’s intervention
only
on the method of payments of costs of Carers or
caregiving. The dispute raised by the defendant about the amount of
the costs of
Carers or caregiving has no basis in fact.
[6] Firstly, paragraph 12
of the Court Order sought by consent on 21 May 2024 reads as follows:
“
12.
The parties record that it is not necessary for the plaintiff to call
any expert witness to confirm any joint minutes,
as the joint minutes
are accepted as true and correct in all respects.”
[7] Paragraph 8.2 of the
Pre-trial minute duly signed by the parties on 17 April 2024 reads as
follows:
“
8.2
The parties agree that the joint minutes and the facts agree (sic)
upon by the experts in the joint minutes are
admitted and entered
into the record of proceedings as evidence.”
[8] Paragraph 17 of the
same Minute is worded as follows:
“
FUTURE
MEDICAL EXPENSES
17. The parties agree
that the actuarial calculations of Gert Du Toit, 15 March 2024, has
calculated the child’s interim future
hospital and medical
costs and related expenses to the sum of
R16 737 267.00
and that this calculation is strictly based on the binding joint
minute of the parties’ expert and constitutes a fair
compensation
in respect of the child’s interim future hospital
and medical costs and related expenses.”
[9] The actuarial report
of Gert Du Toit referred to in the pre-trial minute is located at
pages 162 to 173 of the
Plaintiff’s Medico-Legal Reports for
Quantum
experts.
Annexure 5 of the report at
page 171 constitutes
Detailed Results of Medical Expenses
.
Items Nos. 18 to 23 of annexure 5 deal with the
care
of the
minor child. The items dealing with the Carers or caregiving (items
18-23) are agreed to by the parties’ experts.
The figures set
out in items 18-23 of annexure 5 are too, agreed to. Mr Cole SC
advised the court that the total amount of costs
relating to Carers
or caregiving amounts to
Eight Million Six Hundred and Sixty
Thousand Five Hundred and Eighty-Two Rands
(
R8 660 582.00
).
[10] The contents of
paragraphs 6 to 9 above demonstrate vividly clear that there is
absolutely no basis for the defendant to contend
that she does not
commit and agree to any amount in respect of the caregiving. There is
clear basis that there was an agreement
on the amounts set out in
items 18 to 23 of annexure 5 of actuarial calculations of Gert Du
Toit. In what follows I deal with the
binding nature and legal
effects of the pre-trial and joint minutes.
Discussion
Pre-trial Minute
[11]
With regard to the pre-trial minute, there is an authority for
proposition that parties are bound by the admissions made in
the
pre-trial minute and a party is not entitled to resile from an
agreement deliberately reached at the pre-trial conference
[1]
.
An attempt by the defendant to resile from the pre-trial minute duly
signed by the parties must be given a dim view. In paragraph
8.2 and
17 of the pre-trial minute the parties agreed that the joint minutes
and facts agreed upon by the experts in their joint
minutes are
admitted. It is also admitted that the actuarial calculations of Gert
Du Toit is strictly based on the
binding
joint minutes
of the parties’ experts and
constitutes
a fair compensation
in respect of the child’s interim future hospital and medical
costs and related expenses. It has been demonstrated above
that the
calculations in respect of the costs of the Carers or caregiving
(including figures set out therein) have been agreed
to. Defendant’s
refusal to commit to the agreed facts is without merit and is
unsustainable.
Experts’ Joint
Minute
[12]
Sutherland J had the following to say in
Thomas v
BD Sarens (Pty) Ltd
[2]
:
“
10]
Where litigants in a damages dispute give due notice to call
an expert who is to adduce facts and to give an opinion,
such notice
binds the litigant who gives that notice. It is not open to that
litigant to impeach its own expert witness unless
and until it
clearly repudiates all, or some, of the expert’s contribution.
[11] Where the
experts called by opposing litigants meet and reach agreements about
facts or about opinions, those agreements
bind both litigants to the
extent of such agreements. No litigant may repudiate an agreement to
which its expert is a party, unless
it does so clearly and, at the
very latest, at the outset of the trial. It is self-evident that do
so at so late a stage is undesirable
because it may provoke delay,
but that is a practical aspect not touching on any principle. It is
conceivable that very exceptional
circumstances might exist that
allow a litigant to repudiate an opinion later than this moment, such
as fraudulent collusion, or
some other act of gross misconduct by the
expert, but such considerations do not bear extrapolation for present
purposes.
[12] Where
experts are asked or are required to supply facts, either from their
own investigations, or from their own researches,
and an agreement is
reached with the other party’s experts about such facts, such
an agreement on the facts enjoys the same
de facto status as facts
that are expressly common cause on the pleadings or facts agreed in a
pre-trial conference or in an exchange
of admissions.
[13]
Where two or more experts meet and agree on an opinion, although the
parties are not at liberty to repudiate such an agreement
placed
before the court, it does not follow that a court is bound to defer
to the agreed opinion. In practice, doubtlessly rare,
a court may
reject an agreed opinion on any of a number of grounds all amounting
to the same thing; ie the proffered opinion was
unconvincing. (Menday
v Protea Assurance Co Ltd
1976
(1) SA 565
(E)
at 669B-E.) The rationale for not affording a litigant the same free
hand derives purely from the imperative of orderly litigation
and the
fairness due to every litigant to know, from the beginning of a trial
on a premise that an issue is resolved only to find
it is
challenged.”.
[13]
It has been alluded to above that the defendant only raised the
repudiations referred to above during argument of the case.
It was
also after the consent order had been granted, where upon expert
witnesses had been released. No exceptional circumstances
had been
shown to support her intention to resile from the agreement of the
parties’ experts. Experts’ agreement are
referred to in
the signed pre-trial minute and are considered by the parties to be
binding. I am therefore entitled to accept matters
agreed upon by the
parties
[3]
, as I hereby do.
Public Health Care
defence
[14] The defendant raises
in her amended plea a Public Health Care defence. However, in the
pre-trial minute, the parties agreed
that the issue of costs of
Carers or caregiving do not form part of the public health care
defence. Paragraphs 5 of the pre-trial
minute signed by the parties
on 17 April 2024 provides as follows:
“
5.
In this regard, the parties agree that the issues listed below do not
form part of the Public Healthcare defence and that there
be
separated in terms of rule 33(4) from issues relating to the public
healthcare defence in general and be dealt with separately
at the
hearing of the matter on 20 May 2024:
5.1
………….
5.2
………….
5.3
…………
5.4
…………
5.5
the costs of Carers
5.6
…………
..
5.7
………….
5.8
………….
5.9
The costs associated with registration/management of a Trust.”
[16] It worths repetition
that the parties agreed and advised me that:
16.1 The
defendant’s liability to pay costs of Carers or caregiving is
not an issue;
16.2 The dispute
only relates to the method of paying the costs of the Carers or
caregiving. The counsel for the defendant
indicated that he will seek
an order in terms of which defendant is directed to pay the costs of
the Carers or caregiving in instalments
or staggered payments.
[17] On the subject, the
counsel for the defendant argued in court that the defendant seeks an
order in terms of which the defendant
is directed to pay only on
production of an invoice. An argument was developed to the effect
that the plaintiff must first incur
costs and thereafter submit an
invoice or voucher. This is tantamount and akin to payment of
disbursements. This development was
not exactly what I was told to be
the issue for determination before commencement of the trial.
[18] I may at this
juncture make, in passing, a general comment that the defendant
during the hearing had a propensity of conducting
a disorderly
litigation. The litigation on behalf of the defendant was
characterized by a disposition to ambush the other party
and an
inclination to renage from agreements entered into between the
parties and their respective experts without notice.
[19] The plaintiff argued
that there is no basis for the order sought by the defendant. Once
the liability is acceded to, all the
damages must be paid. The
argument was developed to say payment in instalments is an option
only if the public healthcare defence
is not excluded. In this case,
the pubic healthcare defence is excluded, so the argument went,
therefore there is no basis for
the payment in instalments or
staggered payments.
[20] The defendant having
been invited to make submissions to the above, it was only contended
that if the court decides to grant
the lumpsum payment “so be
it”. It depends on the court, so the argument went. Whatever
this means I find that the
defendant did not make submissions to
counter-veil plaintiff’s submissions.
[21] The plaintiff
referred the court to the provisions of State Liability Amendment Act
14 of 2011 as well as to the
Public Finance Management Act No.1 of
1999
. It is necessary that the two enactments be interpreted by using
the relevant principles of interpretation.
[22]
In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[4]
Wallis JA held that:
“
[18]
………
Interpretation is the process
of attributing meaning to the words used in a document, be it
legislation, some other statutory instrument,
or contract, having
regard to the context provided by reading the particular provision or
provisions in the light of the document
as a whole and the
circumstances attendant upon its coming into existence. Whatever the
nature of the document, consideration must
be given to the language
used in the light of the ordinary rules of grammar and syntax; the
context in which the provision appears;
the apparent purpose to which
it is directed and the material known to those responsible for its
production. Where more than one
meaning is possible each possibility
must be weighed in the light of all these factors. The process is
objective not subjective.
A sensible meaning is to be preferred to
one that leads to insensible or unbusinesslike results or undermines
the apparent purpose
of the document. Judges must be alert to, and
guard against, the temptation to substitute what they regard as
reasonable, sensible
or businesslike for the words actually used. To
do so in regard to a statute or statutory instrument is to cross the
divide between
interpretation and legislation. In a contractual
context it is to make a contract for the parties other than the one
they in fact
made. The ‘inevitable point of departure is the
language of the provision itself’, read in context and having
regard
to the purpose of the provision and the background to the
preparation and production of the document.”
[23]
I now turn to the provisions of State Liability Amendment Act
[5]
.
Section 3 of the Act deals with the
satisfaction
of final court orders sounding in money
.
Subsections 2 to 5 thereof provide as follows:
“
2. The state
attorney or attorney of record appearing on behalf of the department
concerned as the case may be, must, within seven
days after a court
order sounding in money against a department becomes final, in
writing, inform the executive authority and accounting
officer of
that department and the relevant treasury of the final court order.
(3)
(a) A final court
order against a department for the
payment of money must be
satisfied—
(i)
within
30 days of the date of the order becoming final; or
(ii)
within
the time period agreed upon by the judgment creditor and the
accounting officer of the department concerned.
(b)
(i) The accounting officer of the department concerned must make
payment in terms of such order
within the time period specified
in paragraph (a)(i) or (ii).
(iii)
Such
payment must be charged against the appropriated budget of the
department concerned.
(4)
If a final court order against a department for the payment of money
is not satisfied within 30 days of the
date of the order becoming
final as provided for in subsection (3)(a)(i) or the time period
agreed upon as provided for in subsection
(3)(a)(ii), the judgment
creditor may serve the court order in terms of the applicable Rules
of Court on the executive authority
and accounting officer of the
department concerned, the State Attorney or attorney of record
appearing on behalf of the department
concerned and the relevant
treasury.
(5) The relevant
treasury must, within 14 days of service of the final court order as
provided for in subsection (4), ensure that—
(a)
the
judgment debt is satisfied; or
(b)
acceptable
arrangements have been made with the judgment creditor for the
satisfaction of the judgment debt, should there be inadequate
funds
available in the vote of the department concerned.”
[24]
It admits of no doubt that the empowering provision requires that the
payment of money in terms of a final court order must
be made within
thirty (30) days of the order becoming final
[6]
.
The provision does not open a room for staggered payment or payment
in instalments. Provisions imposing time limits and restrictions
(without giving the court a power of extension) are as a rule
peremptory
[7]
. Secondly, the use
of the word “
must”
in the text demonstrates the imperative nature of the provision
[8]
.
Everything done after the prescribed time is null and void
[9]
.
Peremptory provision requires exact compliance for it to have the
stipulated legal consequences and any purported compliance falling
short of that is a nullity. Non-compliance with peremptory provision
results in a nullity
[10]
.
[25]
It is prudent to cross-reference the provisions of section 3(3)(a)(i)
of State Liability Amendment Act 14 of 2011 to the provisions
of
section 38(1)(f) of the Public Finance Management Act No.1 of 1991
which provides that:
“
1. The
accounting officer for a department:
(f) must settle all
contractual obligations and pay all money owing, including
intergovernmental claims, within the prescribed or
agreed period.”
[26]
The provision requires that the defendant must
pay
all money owing
within the prescribed time. A trite presumption that a legislature is
presumed to know the law is applicable in this matter. When
the
legislature was enacting section 3(3)(i) of the State Liability
Amendment Act 14 of 2011, requiring that final order must be
satisfied by the department concerned within thirty (30) days of the
order becoming final, was aware of the provisions of
section 38(1)(f)
of the
Public Finance Management Act No.1 of 1999
which also require
that the accounting officer of the department must settle or
pay
all money owing
within the prescribed time. Therefore, I am persuaded that the
prescribed time referred to in the
Public Finance Management Act is
the thirty (30) days referred to in the State Liability Amendment
Act. A contrary interpretation may result in absurdity
[11]
,
especially that they are both dealing with payment by a government
department concerned. Both sections must be read conjunctively
to
give proper context
[12]
.
[27]
Reference to the phrase
pay all money owing
in section
38(1)(f) of Act 1 of 1999 is a strong indication that there is no
room for payment in instalments or staggered payments.
Contrary
interpretation may lead to absurdity.
[28]
However, both enactments provide for an exception to the general and
controlling sections which were under discussion above.
There is an
instance where, or a circumstance under which a final order and money
owing may not be paid within thirty (30) days
or within the
prescribed time.
[29]
Section 3(3)(a)(ii) of the State Liability Amendment Act 14 of 2011
provides that:
“
(3) (a)
A final court order against a department for the payment of money
must be satisfied—
(ii)
within the
time period agreed
upon by the judgment creditor and the
accounting officer of the department concerned.”
[30]
Section 38(1)(f)
of the
Public Finance Management Act 1 of 1999
provides that:
“
38 (1)
The accounting officer for a department, trading entity or
constitutional institution—
(f) must settle all
contractual obligations and pay all money owing, including
intergovernmental claims, within the prescribed
or agreed period
”
[31] For the accounting
officer of the department concerned to escape the strict provisions
of section 3(3)(a)(i) of the State Liability
Amendment Act and
section 38(1(f)
of the
Public Finance Management Act, there
must be
an agreement in place between the judgment creditor and the
accounting officer of the department concerned. In the absence
of an
agreement between the parties no deviation from the strict and
imperative provisions aforesaid is permitted. Deviation in
circumstances where there is no agreement may be null and void.
[32] In this case, it is
known that no agreement was reached as contemplated in the empowering
provisions between the parties to
pay otherwise than in terms of
section 3(3)(a)(i) of the State Liability Amendment Act.
[33]
The necessary pre-condition for the payment otherwise than in terms
of section 3(3)(a)(i) of State Liability Amendment Act
is the
existence of an agreement between the judgment creditor and the
accounting officer of the department concerned. Under common
law,
necessary pre-conditions that must exist before an administrative
power can be exercised, are referred to as
jurisdictional
fact
.
In the absence of such pre-conditions or jurisdictional facts, so it
is said, the administrative authority effectively has no
power to act
at all
[13]
. This proposition
finds application in this case. I am now satisfied that the defendant
has not made out a case for payment otherwise
than, in terms of
section 3(3)(a)(i) of the State Liability Amendment Act read with
section 38(1)(f)
of the
Public Finance Management Act. There
is no
justification for payment in instalments or staggered payments.
[34]
It has been held that a prayer for periodic payments constitutes a
special defence to the “once and for all rule”
[14]
.
The defence aforesaid must be pleaded and evidence to substantiate
the defence. I therefore find that marshalling a defence of
this
nature from the bar cannot assist the defendant. No factual basis is
established for the deviation from the provisions of
the State
Liability Amendment Act
[15]
.
[35]
The primary function of the courts is to ensure that those who are
charged with the duty to perform public functions in terms
of
legislation act within the parameters of the law
[16]
.
Court have a duty to ensure that the limits to the exercise of public
power are not transgressed. A repository of power may not
exercise
any power or perform any function beyond that conferred upon it by
law and must not misconstrue the nature and ambit of
the power
[17]
.
Kampempe J in
Head
of Department, Department of Education, Free State Province v Welkom
High School and Another; Head of Department, Department
of Education,
Free State Province v Harmony High School and Another
held
that
[18]
“
[1]
State functionaries, no matter how well-intentioned, may only do what
the law empowers them to do. That is the
essence of the principle of
legality, the bedrock of our constitutional dispensation, and has
long been enshrined in our law.”
Conclusion
[36]
The defendants seeks an order in terms of which the amounts granted
in the court order handed up and granted by consent on
21 May 2024 be
paid in four (4) equal instalments. That is apparent in the
defendant’s heads of argument filed on 22 May
2024. The
defendant effectively seeks variation of the court order granted on
21 May 2024. The default position is that the amount
granted on 21
May 2024 is payable within thirty (30) days of granting of the Order.
[37]
Rule 42(1)(a) of the Uniform Rules of court provide that:
“
42 Variation
and Rescission of Orders
(1)
The
court may, in addition to any other powers it may have, mero motu or
upon the application of any party affected, rescind or
vary:
(a)
An
order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
(b)
an
order or judgment in which there is an ambiguity, or a patent error
or omission, but only to the extent of such ambiguity, error
or
omission;
(c)
an
order or judgment granted as the result of a mistake common to the
parties.
[38]
There is nothing in the whole tenor of defendant’s heads of
argument, where the application is made, showing that the
order of 21
May 2024 was erroneously sought and granted in the absence of the
defendant. Instead it appears that the order was
taken by consent
upon offer having been tendered by the defendant and accepted by the
plaintiff. No submission is made relating
to the existence of
ambiguity, error or omission in the order. The defendant does not
submit that there is a mistake common to
parties.
[39]
In any event, those submissions are ill-fated, for there is no
application made in terms of the subrule. The Rule requires
that an
application must be made on notice to any party affected
[19]
.
It would be in that application that the evidence required would be
led. As things stand, there is no evidence to support this
application including the fact that the defendant does not have
sufficient fund. During oral submissions in court the defendant
made
no submissions about the department’s lack of sufficient funds.
It arises for the first time in the written heads of
argument
requested by the court.
The
costs associated with registration/management of a Trust
[40]
It was agreed during the pre-trial conference that the aforesaid
costs would be determined during this hearing. These costs
are
calculated on the basis of 7.5% of the total amount of the costs of
the caregivers which costs of caregivers is the amount
of
R8 660 582.00.
The total amount of costs associated
with registration or management of a Trust on the basis of the
abovementioned formular is
R649 543.65
. It is on the
basis of this formular that the counsel for the plaintiff submitted
that these costs are linked to and/or associated
with the costs of
the care giving. No submissions were made by the defendant on this
subject, both during the oral submissions
and in the heads of
argument. There is no justification for not granting these costs.
Costs
[41]
On 21 May 2024 I granted costs of suit against the defendant in
favour of the plaintiff. I granted those costs during the same
hearing in which the issues led to the preparation of this judgment
were argued. Huge part of the costs of this matter will be
dealt with
and be taxed in terms of the court order of 21 May 2024. I am of the
view that the plaintiff is entitled to such costs
as may not be
covered by the court order of 21 May 2024.
Order
[42]
In the result I make the following Order:
1.
The
Defendant shall pay the plaintiff the amount of R8 660 582.00 in
respect of the minor child’s claim and/or special damages
for
caregivers.
2.
The
defendant shall pay the plaintiff the amount of R649 543.65 for the
established, registration and management of a trust to be
established
for the benefit of the minor child, which amount is calculated on the
basis of 7,5% of R8 660 582.00 being the minor
child’s total
award.
3.
The
abovementioned amounts as referred to in paragraphs 1 and 2 above
shall be paid within 30 days of the date of this order together
with
interest thereon at the prevailing legal rate calculated from 30 days
of the date of the order to date of final payment thereof.
4.
The
Defendant shall pay the costs of suit, that are not covered by the
court order of 21 May 2024 together with all reserved costs,
if any,
and together with interest thereon at the legal rate from a date 30
days after
allocatur
and/or agreement to date of
payment, which costs will furthermore include:
4.1 the costs of two
counsel, where utilized, on scale C in terms of rule 67A.
4.2 the costs of
preparing for consultations and trial;
4.3 the travelling and
accommodation expenses, if any, of the Plaintiff’s legal
representatives attending consultations with
witnesses and court;
4.4 The reservation
fees, if any, together with the qualifying fees, if any, of the
Plaintiff’s expert witnesses in respect
of whom notices in
terms of rule 36(9)(a) and (b) have been filed of record.
5.
The
aforementioned amounts are to be paid to the trust account of the
Plaintiff’s attorneys of record, Dayimani Inc, with
the
following details:
Account Name: D[…]
I[…]
Bank: […]
Account number: […]
Branch Code: […]
Reference: M[…]
v MEC
6.
The net balance remaining after paying and recovering all
costs and expenses for which the Plaintiff is liable, including her
fees
as between attorney and own client, will be dealt with as
follows:
6.1 M Dayimani Inc.
Attorneys are directed to cause a Deed of Trust, to be named the
“A[...] M[...]TRUST” to be registered
by the Master of
the High Court incorporating the provisions normally to be found in
an
inter vivos
trust within a reasonable period from the date
of payment of this order, or within such time as directed by the
Master, with the
following additional provisions;
6.2 The Trustee to be
appointed, or their successor in title, will, if possible, be a
corporate Trustee and shall have the powers
of assumption;
6.3 In the event of it
not being possible to appoint a corporate Trustee, the Trustees to be
appointed, or their successor in title,
will, insofar as is
reasonably possible, consist of three Trustees, being the Plaintiff,
a Chartered Accountant and an Attorney,
and shall have the powers of
assumption;
6.4 The
Trustees shall be exempt from furnishing security;
6.5 The
Trustees shall hold and administer the trust fund for the benefit of
A[…] M[…];
6.6 The
Trustees shall apply the net income of the trust fund for the
maintenance and benefit of A[...] M[...]and,
if at any time it is not
adequate for the purpose, the capital thereof;
6.7 The
Trust shall terminate on the death of A[…] M[…],
alternatively in accordance with the strict
terms of the Trust Deed;
6.8 The
provisions of this paragraph shall, in accordance with the provisions
of the Trust Property Control Act of
1988, as amended, be subject to
the approval of the Master of the High Court;
6.9 This
order must be served by the Plaintiff’s attorney on the Master
of the High Court.
A.S ZONO
ACTING JUDGE OF THE
HIGH COURT
APPEARANCES:
For the
PLAINTIFF
:
ADV
COLE SC with ADV NTIKINCA
Instructed
by
:
M.
DAYIMANI INC.
NO.4
GREENAN STREET
BEREA
EAST
LONDON
REF:
MD/vs/00431
TEL:
043 110 0362
EMAIL:
info@mdayimaniinc.co.za
For
the DEFENDANT
:
ADV FRANS
Instructed by
:
STATE ATTORNEY
OLD SPOORNET BUILDING
NO.
17 FLEET STREET
EAST
LONDON
REF:
1025/21-P11 (MRS TONGO)
EMAIL:
asakasa@justice.gov.za
c/o
: SHARED
LEGAL SERVICES
OFFICE OF THE PREMIER
32 ALEXANDRA ROAD
KING WILLIAMS TOWN
Matter
heard on
:
20 &
21 MAY 2024
Judgment
Delivered on :
27 MAY 2024
[1]
Price
NO
v Allied
-
JBS
Building Society
1980
(3) SA 874
(A) at 882D - H;
MEC
for Economic Affairs, Environment and
Tourism, Eastern Cape v Kruizenga
2010 (4) SA 122
(SCA);
2010 (4) ALL SA 23
(SCA) at para 6.
[2]
Thomas v
BD Sarens (Pty) Ltd
[2012] ZAGPJHC 161(12 September 2012) at paras 10-13.
[3]
Bee
v Road Accident Fund
2018 (4) SA 366
(SCA) at paras 64 – 66;
Krebs
v Road Accident Fund
(2734/2020) [2023] ZAECQBHC 27 (25 April 2023) at para 39.
[4]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) at para 18.
[5]
State
Liability Amendment Act No.14 of 2011.
[6]
Section
3(3)(a)(i) of Act 14 of 2011.
[7]
LAWSA
Vol 25 Part 1 (Joubert) page 401 para 366.
[8]
Maguma
v Station Commander Fleet Street Police Station & Others
(EL683/2023)
[2024] ZAECELLC 8 (19 March 2024) at para 51.
[9]
GM
Cockram: Interpretation of Statutes, 3
rd
Ed page 161.
[10]
Shalala
v Klerksdorp Town Council & Another
1969
(1) SA 582
(T) at 587 A – C.
[11]
Cool
Ideas 1186 CC v Hubbard & Another
2014
(4) SA 479
(CC) at para 28.
[12]
Maguma
v Station Commander Fleet Street Police Station
supra
at
para 25.
[13]
Kimberly
Junior School & Another v Head of the Northern Cape, Education
Department & Others
2010
(1) SA 217
SCA; 2009 (4) SA ALLSA 135 SCA at para 11.
[14]
MEC
for Finance, Economic Development, Environmental Affairs and Tourism
& Others v Legal Practice Council & Others
2023
(2) SA 266
;
2022 (3) ALLSA 730
at para 62.
[15]
Phumla
Stafana-Sohopi v MEC for Health
(unreported)
Bisho Case No. 330/2019 delivered on 13 December 2022 at para 11.
[16]
Mwelase
v Minister of Social Development & Others
(Case
No. 74/16) [2018] ZAECMHC 16 (22 March 2022) at para 25; Baxter:
Administrative Law page 305.
[17]
Fedsure
Life Assurance Ltd & Others v Greater Johannesburg Transitional
Metropolitan Council & Others
[1998] ZACC 17
;
1999
(1) SA 374
(CC) at para 56-58.
[18]
Head
of Department, Department of Education, Free State Province v Welkom
High School and Another; Head of Department, Department
of
Education, Free State Province v Harmony High School and Another
2014
(2) SA 228
(CC) at para 1.
[19]
Rule
42(2) of the Uniform Rules: Erasmus: Superior Court Practice, 2
nd
Ed page D1-565.