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[2024] ZALMPPHC 44
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Tjale N.O obo N.B v Road Accident Fund (2313/2022) [2024] ZALMPPHC 44 (12 April 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
Case Number:
2313/2022
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED: YES/NO
______________
_________________________
DATE
SIGNATURE
In
the matter between:
ADV
LESIBA DONOVAN TJALE N.O.
On
behalf of: N[…] N[…]
B[…]
PLAINTIFF
AND
ROAD ACCIDENT
FUND
DEFENDANT
JUDGMENT
MARAIS C AJ:
INTRODUCTION:
[1]
On 06 March 2010, a minor child, who was
twenty-three months old at the time, was hit by a white Chevrolet
Spark vehicle with registration
number: F[…] (the “accident”),
whilst the minor was standing inside a residential yard situated at
Stand 6[...],
C Section Nwamitwa Village in the Mopani District.
[2]
The Defendant is the Road Accident Fund
(“
RAF
”
),
which is a statutory body duly incorporated in terms of section 3 of
the Road Accident Fund Act 56 of 1996 (as amended) (
“
RAF
Act
”
) whose object is “…
the
payment of compensation in accordance with this Act for loss or
damage wrongfully caused by the driving of motor vehicles
”
.
[3]
The minor child, being the Plaintiff
herein, is represented by his duly appointed curator
ad
litem
, advocate Lesiba Donovan Tjale,
who was so appointed by virtue of an application for his appointment,
granted by this Court on
16 March 2023, under case number:
12986/2022. I will elaborate more on this appointment later in my
judgment.
[4]
Before me is an application for default
judgment against the Defendant, only in respect of future loss of
earnings. General damages
and medical expenses were to be postponed
sine die
,
as the Plaintiff intended to refer the issue of general damages to
the Health Professions Council of South Africa.
[5]
Plaintiff, in his particulars of claim
dated 04 March 2022, pleaded that as a result of the accident,
Plaintiff sustained a head
and a leg injury, causing impairment and
movement problems, intellectual disability and mental fatigue and
that the impairment
and disabilities are permanent and irreversible.
The Plaintiff claims R500 000 with respect to future loss of
earnings.
[6]
On 28 August 2023, Plaintiff filed a notice
in terms of rule 28(1) of the rules of this Court, whereby he gave
the intention to
amend his particulars of claim. In terms of this
notice, Plaintiff intended to increase his loss for future loss of
income to R6’000
000. The ten-day period to file an objection
against the intention expired on 06 September 2023. No objection was
filed. The further
ten-day period to file the amended particulars of
claim pages, as provided for in rule 28(5), as read with rule 28(7)
of the rules
of this Court, was 20 September 2023. The Plaintiff,
however, only served his ‘amended pages’ on 26 September
2023
and filed it with the registrar on 04 October 2023.
[7]
When the matter was argued before me,
counsel for the Plaintiff did not bring the rule 28 notice to amend
the particulars of claim
under my attention. It was only when I
started to write this judgment that I became aware that there might
be a problem with the
dies
and filing of the amended pages. I then gave a
directive to the Plaintiff’s attorneys to provide me with
supplementary heads
of argument, wherein they only address the issue
of the
dies
to
file their amended particulars of claim, as I wanted to allow them to
fully address me on this issue.
[8]
On 22 February 2024, I received the
supplementary heads of argument. I am satisfied that the Plaintiff
made a proper case and that
their amended particulars of claim are
properly before this Court. Thus, the claim before me for loss of
future income is the amount
of R6’000 000.
EVIDENCE:
[9]
In the Plaintiff’s application for
default judgment, he prayed that the Court use its discretion in
terms of rule 38 of the
rules of this Court to accept the evidence of
the experts referred to in the expert reports and their respective
confirmatory affidavits.
In terms of rule 38(2), I accepted the
evidence by the experts as contained in their respective reports and
confirmatory affidavits.
[10]
Ms Anna Mabina, an educational
psychologist, consulted with the minor and his biological mother, on
19 August 2023, which is more
than 13 years after the accident
occurred. At the time of the consultation, the minor was 15 years and
4 months old and in grade
9. The minor’s mother reported to the
expert that her pregnancy with the minor was normal. She breastfed
the minor until
the age of two and that the minor’s infant
development was normal. The minor sat, crawled, stood and walked at
age-appropriate
periods. The minor is one of seven children and the
sixth-born child in his family. He has one younger brother. Of the
five elder
siblings, only one sibling is reported to have completed
grade 12 and is self-employed.
[11]
It was further reported that the minor’s
mother did not complete grade 12 and was at the time, a taxi driver.
Further, that
on the day of the accident, the minor was with his
brother – who was not named, and on the way to creche when the
minor got
hit by a car that was driven by a teacher from a
neighbouring school, who was dropping a child at creche. The teacher
allegedly
reversed and knocked the minor down and the car went over
the minor’s leg. The teacher then transported the minor to the
Letaba Hospital for medical assistance.
[12]
The minor repeated grade 2. The expert only
had school reports of grades 7 and 8. According to the minor’s
mother, the minor
has poor concentration and attention span and only
forgets his house chores but always remembers his schoolwork. The
minor is reported
to be well disciplined and participates in school
competitions, but as of late, has become short-tempered and easily
irritable.
He is reported to have developed anger and is aggressive
towards other children. The minor reported that he enjoys
mathematics.
The minor’s current complaints are that he sleeps
a lot, has pain when running, and often has nose bleeds.
[13]
Following the Senior South African
Individual Scale-Revised assessment, the minor tested significantly
below average in the verbal,
non-verbal, and full IQ scales. The
minor also tested significantly below average in the attention and
memory tests, concentration
and mental tracking tests, and perceptual
reasoning and reasoning tests.
[14]
However, the minor tested within the high
average range of the Bender Gestalt II tests for visual-motor
integration functioning
and his recall ability to encode, store and
retrieve information from memory. The minor struggled to read with
poor word recognition.
The expert opined that the minor would benefit
from intense reading to help him improve his vocabulary and
familiarise himself
with unfamiliar words. The minor could perform
basic mathematics but struggled with more complex sums.
[15]
The educational psychologist concludes that
if not for the accident, there would have been a high possibility of
the minor completing
grade 12 with an endorsement of a diploma or
bachelor pass, however, whereas the expert had no early childhood
development reports
it is difficult for the expert to make a
confident postulation. She further postulated that the minor presents
with emotional distress,
and that the challenges that the minor
displayed regarding reading and spelling, were not that significant.
[16]
The minor consulted with an occupational
therapist on 18 September 2023, which was more than thirteen years
after the accident.
The minor’s mother reported to the
occupational therapist that the minor was the third-born child in the
family of four children
– which is contrary to what was stated
by the educational therapist. Further, that the minor left the
accident scene by way
of ambulance, contrary to the other expert
report that the minor was taken to hospital by the teacher who
knocked him over with
a car.
[17]
The Occupational Performance
Components/Psychopathological Problems report confirmed that the
minor presented with pain-free neck,
back and upper limb movements.
The minor presented pain in his right ankle joint. He has oedema on
the fracture site and on his
left ankle, with no visible scars. The
minor had good sitting endurance but struggled to stand or walk for
longer periods. The
minor’s senses, posture and balance were
normal. His muscle strength in the left ankle and foot tested good in
strength with
pain. He walked with an abnormal gait, and it was noted
that he had a malunited left tibia fracture. The expert postulates
that
the minor will benefit from occupational therapy to assist with
his cognitive and physical challenges.
[18]
The minor and his mother consulted an
orthopaedic surgeon, Dr L Nevondo on 07 April 2022, which was just
over twelve years after
the accident. The minor’s mother
reported to the orthopaedic surgeon that the minor was “
a
pedestrian who got hit by a car which revering as he was playing with
his friends”
(sic). This is
contrary to the other versions given to other experts.
[19]
The orthopaedic surgeon noted no
deformities, scars, mild tenderness on the left leg, and normal range
of motion in the ankle and
knee. An x-ray to the left leg confirmed
that the minor had a malunited fracture of the left tibia and fibula,
distal 1/3 and medial
angulated at 5 degrees. The minor’s
whole-person impairment was 5%. The expert opined that the concerns
raised by the minor
may be managed with physiotherapy and pain
medication, and that further operative procedures are not warranted.
In his view, the
minor’s injuries were not likely to influence
the minor’s life expectancy.
[20]
On 29 September 2023 the minor consulted a
neurosurgeon, Dr Thobejane. It was reported to Dr Thobejane that the
minor resided with
his mother and two siblings, which is contrary to
other reports. All tests done by the neurosurgeon proved that the
minor was healthy.
More specifically, his neurological examination
proved to be GCS15/15. The expert concluded that the minor sustained
a mild head
injury and suffers from mild post traumatic amnesia which
affects some of his daily activities and that there were no focal
neurological
deficits.
[21]
Lungile Langa, the industrial psychologist,
met with the minor and his mother on 07 April 2022, which was just
over twelve years
after the accident. The minor and his mother
reported to the industrial psychologist that the minor only failed
grade 3, contrary
to what was reported to both the educational
psychologist and occupational therapist.
[22]
It is reported to the industrial
psychologist that eight family members live in their four-bedroom
house and have an inside tap.
The educational psychologist and
occupational therapist reported that they did not have a tap and had
to walk to another yard to
get water.
[23]
The industrial psychologist states
“
[f]rom
a pessimistic point of view, one would have concluded that (the
minor)’s educational attainments would therefore have
been in
line with his socio-economic background and family history, thus his
parents educational background. But reality is the
trend now lately
is that children often achieve more than their parents academically
and vocationally. This is due to the educational
policies that
encourage learner support and has seen most learners completing high
school education resulting to the majority of
them achieving more
than their parents academically and vocationally
.”
[24]
The expert opines that the most probable
scenario is that the minor could have enrolled for a post-matric
certificate, and, if it
transpired that the minor was more
technically inclined, he could have completed his N-studies at a
technical college and applied
for apprenticeship positions. If the
minor opted for an apprenticeship, he would have earned on par with
Paterson B1-B3 –
4 years. After this period, he could have
written a trade test and could have qualified as an artisan in which
case he would have
earned on the lower quartile of a Paterson level
B5, progressing to the lower of level C2, reaching his occupational
ceiling at
the age of 45 to 50 years.
[25]
Tshebo Actuaries took the industrial
psychologist report into consideration and concluded that, if it is
assumed that the minor
will complete grade 12 and obtain a
post-matric certificate injured, and enrolled for an apprenticeship
in January 2029, earning
in line with Paterson B1-B3 level, he could
earn an average of R235 000 per annum. If the minor secures permanent
employment in
January 2033, he could earn Paterson B5 level with an
average income of R364 000 per annum. With an increase linearly to
Paterson
C2 level, the minor could earn R473 000 per annum, by age
47.5 and thereafter to increase with inflation until retirement at
the
age of 65.
[26]
Uninjured, the actuary opines that the
minor would have completed grade 12 with a degree in December 2025
and June 2030 respectively.
If the minor then secured permanent
employment in July 2030, he could have earned in line with Paterson
B4/B5/C1 level with an
average of R425 333 per annum. The increase is
assumed to have increased linearly to Paterson D1 level of an average
of R1 082
000 per annum by age 42.5. Thereafter, the income is
assumed to increase with inflation until retirement at age 65. In
conclusion,
the actuary calculated the loss in difference in future
income to be R5 338 230.
CURATOR
AD LITEM
[27]
When the matter came before me on 09
October 2023, the curator
ad litem
,
was not present, nor was his curator’s report filed. The
application for the appointment of a curator
ad
litem
and possible curator
bonis
or creation of a special trust, was also not
before me. This application was launched under a separate case, case
number: 12986/2022.
[28]
I postponed the matter to 12 October
2023 and ordered that the curator
ad
litem
appear before me, that his
curator’s report be duly filed and that a copy of the
application for the appointment of a curator
also be filed under the
current case number.
[29]
There is a tendency amongst legal
practitioners to launch applications for the appointment of a curator
under a different, new case.
This practice must be discouraged
because there is no logical explanation for this. Not only does the
new case file cause unnecessary
administration and filing challenges
to the Court, but it also creates a situation wherein the judge who
presides over the trial
does not have a full and detailed explanation
as to why there was a need to appoint a curator in the first
instance, and what the
curator’s rights and responsibilities
were. The trial judge must satisfy himself/herself that the appointed
curator duly
complied with the order granted.
[30]
On 12 October 2023, the attorney on behalf
of the Plaintiff and the curator
ad
litem
, Adv Lesiba Donovan Tjale,
appeared. A copy of the application for the appointment of curator as
well as the curator
ad litem
’
s
report were filed.
[31]
It is trite that an application for the
appointment of a curator
ad litem
,
is sought in terms of rule 57. Rule 57(5), as read with rule 57(13),
provides that upon the appointment of the curator
ad
litem
, who shall if practicable, be an
advocate or, failing such, an attorney, shall without delay interview
the patient (in this instance,
the minor and his legal guardian(s))
and shall also inform the latter (or his legal guardian) of the
purpose and nature of the
application for appointment of a curator,
unless the curator
ad litem
consulted with a medical practitioner who
supported the application for the appointment of a curator, and the
curator
ad litem
is
satisfied that it would be detrimental to consult with the patient
(or his legal guardian). The curator
ad
litem
must make such inquiries as the
case appears to require and thereafter prepare and file with the
registrar his report on the matter
to the Court and, at the same
time, furnish the applicant (for the appointment of a curator) with a
copy of his curator’s
report. In the curator
ad
litem
’
s report, he must set forth
such further facts that he ascertained in regard to the patient’s
mental condition, means and
circumstances, and he must draw the
Court’s attention to any consideration which, in his view,
might influence the Court
in regard to the terms of any order sought.
[32]
In
Ex Parte
Phillipson and Wells NO
1954 (1) SA 245
(E)
at
246, the Court held: “…
it
is a little difficult to state the limits of the authority of the
Court to appoint a curator ad litem or a curator bonis. But
appointments have been made to avoid injustice…The principle
underlying these cases would appear to be that the Court has
power to
appoint, and will appoint, a curator ad litem to assist persons to
vindicate rights where there is no other suitable means
in the
ordinary way and will do so by appointing a curator ad litem either
to the property plaintiff or to the defendant, for where
there is a
claim of right there should be a means of vindicating it
.”
[33]
In
Abroms v
Minister of Railways and Harbours
1917 WLD 51
,
it was held that a curator
ad litem
will be appointed,
inter
alia
, to litigate and vindicate the
rights of those who cannot do so because of absence and impossibility
of communication. Although
this case was based upon a war situation,
it applies to matters where children are involved. Section 10 of the
Children’s
Act 38 of 2005 makes it mandatory that every child,
that is of the age, maturity and stage of development as to be able
to participate
in any matter concerning that child has the right to
participate in an appropriate way and views expressed by the child,
must be
given due consideration. An appropriate way is through the
assistance of a curator
ad litem
.
[34]
In terms of section 34 of the Constitution,
1996, each person has the right to access the courts. Access to
courts is essential
to achieving social justice. In
Rein
v Fleischer NO
[1984] ZASCA 102
;
1984 4 SA 863
(A)
at
874C, Hoexter JA referred to the appointment of a curator
ad
litem
as “
that
vigilant protection of the rights of minors which our system of law
seeks to promote
.”
[35]
Since
the enactment of our 1996 Constitution, we have become a society that
is more vigilant about protecting children’s rights.
Section
28(1)(h) of the Constitution gives every child the right to have a
legal practitioner assigned to such child by the state,
at the
state’s expense, in civil proceedings affecting the child,
where substantial injustice would otherwise result. In
Du
Toit v Minister of Welfare and Population Development
[2002] ZACC 20
;
2003 2 SA 198
(CC)
at
201G par 3, the Court referred to its constitutional obligation to
appoint a curator
ad
litem
for
children where there is a risk of substantial injustice. It stated
that in matters where children’s interests are at stake,
those
interests must be ‘fully aired’ before the Court to avoid
substantial injustice to those children.
[1]
[36]
In the present matter, although the mother
of the minor was in a position to speak on behalf of the minor, she
was not in a position
to speak in his name. In
Christian
Education South Africa v Minister of Education
[2000] ZACC 11
;
2000 4 SA 757
(CC)
at para 53, the Court emphasised the importance of
the appointment of a curator and that a curator (on behalf of a minor
child)
should make sensitive enquiries to enable the child's voice
and that voice to be heard.
[37]
Highly
acclaimed Professor Trynie Boezaart
[2]
summarised the duties of a curator
ad
litem
,
inter
alia
,
that the curator must interview the child without delay and make
further enquiries as the curator deems necessary. The curator’s
report should bring facts or circumstances pertinent to the Court’s
attention. The curator
ad
litem
must
represent the child’s best interest and do so by advancing all
arguments that can reasonably be put forward on the child’s
behalf.
[38]
In
Ex Parte
Glendale Sugar Millers (Pty) Ltd
1973 (2) SA 653
(N)
the
Court stated “..
the duties of a
curator ad litem are clearly not to be confined to, or delayed until,
an appearance in Court; the curator must investigate
the relevant
facts and circumstances and apply his judgment extra forensically in
deciding what attitude he should adopt and the
precise contents of
his report to the Court
”
, and
further that “
curators must make
such investigations and judgments in regard to the appointment of
curator bonis
…”
.
[39]
International law, our Constitution, and
the Children’s Act have all played their part in protecting
children's rights and
broadening the vital role of a curator
ad
litem
on behalf of a minor child. But
the positive strives can only be improved if officers of the Court,
such as an advocate appointed
as curator
ad
litem
over a minor child, fulfil their
duty towards the courts. Failure to provide the Court with a proper
curator’s report on time
could cause injustice to the child,
and that would constitute an infringement of the child's
constitutional rights.
[40]
I deem it necessary to highlight the
importance of a curator
ad litem
in children’s matters, as in the matter
before me, the curator
ad litem
’
s
report did not do justice to the minor and did not express the voice
of the child.
[41]
The application for the appointment of a
curator ad litem was granted as early as 23 March 2023. However, the
court order was only
served upon the curator
ad
litem
on 09 October 2023, when the
matter was initially enrolled for default judgment. There was no
explanation for why the attorney on
record took more than six months
to serve the application and court order upon the appointed curator.
Had they done so, the curator
would have had sufficient time to
comply with his duties and report to this Court well in advance.
[42]
The curator
ad
litem
, in his report, confirmed that
upon receipt of the court order, he made contact with the minor’s
mother and arranged to meet
her at their homestead on 10 October
2023.
[43]
The curator
ad
litem
’
s report states that the
minor, his mother, and his siblings stay in a three-bedroom home,
contrary to the experts who stated they
reside in a four-bedroom
home. I am inclined to accept this version of the curator
ad
litem
, as he attended the minor’s
home, whereas the reports by the experts are based upon information
they received from the minor
and his mother.
[44]
The curator
ad
litem
further states that when he met
with the minor
“
[t]he minor looked
fine when I consulted with him except that he looks a bit worried.
”
The greater part of the curator
ad
litem
’
s report, was a ‘copy
and paste’ summary of what the experts had opined in their
expert reports.
[45]
The curator
ad
litem
recommends that a curator
bonis
be appointed to assist the minor in managing his
affairs for two reasons. First, the appointment of the curator
bonis
would be based on the fact that the injured is
still a minor and, therefore, incapacitated to manage his own affairs
and interests.
Second, the medical findings by the experts indicate
that the minor is
compos mentis
,
though he has some cognitive and emotional impairments that affect
and will continue to affect his vocational and scholastic
capabilities and will so impact his occupational prospects and
ability to secure employment in the future.
[46]
The curator
ad
litem
concluded to recommend that a
certain Advocate Mokgopo be appointed as a curator
bonis
over the minor child and that he should provide
security to the satisfaction of the Master of the High Court; that
the curator
bonis
should
be afforded the powers and obligations as set out in an annexure
attached to his curator
ad litem
report, subject to the approval of the Master of
the High Court, or should the Court not be inclined to appoint a
curator
bonis
,
that in the alternative a protection trust be created in favour of
the minor, with Absa Bank as the trustee to such trust.
[47]
The curator
ad
litem
only briefly met the minor and
his family once, and he confirmed that he never confirmed or had
proper insight into the minor’s
academic achievements or his
school reports. The curator ad litem further confirmed that he never
met or consulted with the proposed
curator
bonis
.
Unfortunately, the curator
ad litem’s
report was of no help to this Court, which is
quite understandable, given that the curator
ad
litem
only received the court order
whereby he was appointed, a day before meeting the minor and his
family.
[48]
In
the case of
Modiba
[3]
the Court held: "
The
appointment of a curator to a patient represents a very serious
invasion of the Patient's liberty, dignity and control of his
destiny. It is therefore essential that the conditions set out in
sub-rules (1), (2) and (3) of the Rule are met before a curator
may
be appointed: see Ex parte Futter, supra. As Galgut J said in Ex
parte Klopper: In re Klopper
1961 (3) SA 803
(T) at 805E to H: ".
. . a Court will not appoint a curator bonis until it is absolutely
satisfied that the patient has to
be protected against loss which
would be caused because the patient is unable to manage his
affairs..."’
[49]
The
South African Law Commission Report of December 2015, Project 122,
arose from concern over how South African law addresses the
needs of
people with diminished capacity to make informed decisions and
exercise their legal capacity. It noted that: “
Making
decisions is an important part of human life. By exercising choice
through our decisions in matters relating to our personal
welfare and
financial affairs, we express our individuality and exert control
over our own lives. Impaired decision-making ability
can be the
result of mental illness, intellectual disability, brain injury,
stroke, dementia, a specific disease, or impairment
related to ageing
in general. A legitimate expectation for the law is that it should
establish a structure within which autonomy
and self-determination
are recognised and protected, while also protecting persons with
decision-making impairment from abuse,
neglect and
exploitation…..”.
[4]
I
share these sentiments.
[50]
As stated earlier, the curator
ad
litem
’s report should assist the
Court in making decisions in the best interest of children. To
achieve this, the curator
ad litem
could
consider the following factors (which list is not exhaustive),:
(a)
The minor’s scholastic achievements,
past and current school reports, his highest level of education and
the highest possible
level of education that he could achieve,
injured;
(b)
Having regard to the child’s age,
whether the child has been exposed to any form of work experiences or
similar exposure;
(c)
Whether the child has any talents such as
musical, art, sports and the like, which he could continue doing
after school as a source
of income.
(d)
Having regard to the child’s family
dynamics, whether the child will have any family member or another
trustworthy person
who will be able to assist the child in making
financial decisions once the child reaches the age of majority.
(e)
The child’s current health.
(f)
Whether the child is exposed to alcohol,
cigarettes or other intoxicated substances, which could cause health
problems to the child
or financial exploitation upon the child,
should an award be made to such child;
(g)
Whether the child has ever been in conflict
with the law which could have an adverse effect on such child,
especially upon reaching
the age of majority when such child may
manage his own affairs;
(h)
The nature of the child’s injuries;
(i)
The child’s family or his next of kin
who resides with him, their highest level of education or current
employment status;
(j)
The support system that the child has,
especially should an award be made to the child;
(k)
The voice of the child, taking due
consideration of the age, level of maturity and stage of development
into consideration and what
the child’s ability would be,
should he reach the age of majority;
(l)
Whether the attorneys on record for the
minor Plaintiff, has taken all reasonable steps in favour of the
minor Plaintiff, which
the curator
ad
litem
should ratify, inclusive of
whether any contingency fee agreement complies with the
Contingency
Fees Act 66 of 1997
, as it will have a financial impact on the minor
Plaintiff;
(m)
And, the fourteen factors – where
applicable, which are in the child's best interest, as provided for
in
section 7
of the Children’s Act, 38 of 2005.
[51]
I have considered the expert reports, the
minor’s academic achievements, and his family dynamics. The
minor is healthy, and
I have no reason to believe that he will be
totally incapable of managing his own affairs upon reaching the age
of majority. Considering
his youthfulness and maturity, as well as
the fact that he has no family member or friend that could assist him
in making sound
financial decisions upon reaching the age of
majority, there is a greater need to protect any award to be made to
this minor Plaintiff.
[52]
It cannot be in dispute that the minor
suffered an injury as a result of the accident that took place on 6
March 2010 when the minor
was almost two years old. Whereas the minor
suffered an injury due to a motor vehicle which knocked over the
minor, the minor is
entitled to receive compensation from the
Defendant.
[53]
On 31 May 2023, Kganyago J ordered that the
Defendant be held liable for 100% of the merits.
[54]
I am of the view that the Plaintiff’s
health concerns, such as constant headaches, nose bleeds, and often
sleeping, are all
treatable through appropriate therapy and
medication, as opined by various experts. It is not life-threatening
and the minor’s
life expectancy was not affected as a result of
the accident.
[55]
It
is trite that the percentage of the contingency deduction depends
upon many factors and ranges between 5% and 50%, depending
on the
facts of the case.
[5]
[56]
I am bound to make an award on the
pleadings that are before me. In the particulars of claim, Plaintiff
claimed R6’000 000
for future loss of earnings. I have further
considered the actuary report and the Plaintiff’s heads of
argument regarding
this claim. The actuary recommended that with
regards to future loss of income, a deduction of 20%, uninjured and
35%, injured
be applied.
[57]
Whereas this Court was not provided with
complete scholastic reports of the minor, nor could the experts opine
thereon as they,
too, did not have such reports, and also taking into
consideration that the minor was only twenty-three months old at the
time
of the accident, his family dynamics and current health status,
a high contingency must be applied if I accept the figures stated
in
the actuary report.
[58]
In
the result, I have applied a 50% contingency deduction to the
pre-morbid earnings and a 50% contingency for post-morbid.
I
am satisfied that the contingency deduction concerning both
pre-morbid and post-morbid income would be just and fair, considering
all the evidence presented to me.
[59]
The calculations are
as follows:
Income if the accident
did not occur:
Past
- R0
Future
-
R12
452 346
R12
452 346
Less 50%
R6 226 173
Amount:
R6 226 173
Income post-accident:
Past
- R0
Future
-
R7
113 303
R7 113
303
Less 50%
R3 556 651.50
Amount:
R3 556 651.50
[60]
The
nett loss of earnings is R6 226 173 – R3 556 651.50 = R2 669
521.50. Given all the facts presented, the balance of probabilities
favours awarding compensation to the Plaintiff for loss of income in
the amount of R2 669 521.50, which is fair compensation.
[61]
The
only remaining question is whether the funds should be protected by
way of the appointment of a curator
bonis
,
or the creation of a special (protection) trust. I am guided by the
principles laid down in the case of
Master
of the High Court v The Pretoria Society of Advocates
.
[6]
[62]
In my view, appointing a curator
bonis
would be too costly and limit the minor’s
right to make his own decisions upon reaching the age of majority.
[63]
A special trust, created solely for the
benefit of the minor Plaintiff, would be better suited for him, to
allow him to attain legal
capacity upon reaching the age of majority
and to enter into contracts freely. Upon reaching the age of
majority, the trustee would
also be able to guide the minor to make
sound financial decisions. Should the trustees believe that the minor
Plaintiff (upon reaching
the age of majority) can make his own sound
financial decisions, then upon an application to the High Court, this
special trust
may be terminated.
[64]
The curator
ad
litem
, made recommendations in his
report should a special trust be registered. In this regard, ABSA
Bank has consented to accept the
nomination as a trustee, and a copy
of the draft trust deed and acceptance as trustee was attached to the
curator
ad litem
’
s
report as annexures “B11” and “B12”
respectively.
Accordingly, I make the
following order:
ORDER:
[65]
The Defendant shall
pay to the Plaintiff the total capital amount of
R2’669
521.50 (two million, six hundred and sixty-nine thousand, five
hundred and twenty one rand and fifty cents) for loss
of future loss
of earnings
,
together with interest at 9% per annum from 11 March 2022, being the
date of service of the summons.
[66]
The amount of R2’669
521.50 (two million, six hundred and sixty-nine thousand, five
hundred and twenty one rand and fifty
cents) plus interest at 9% per
annum, from 11 March 2022 until date of full payment (the
“
compensation
amount
”),
shall be paid by way of electronic transfer into the trust bank
account of the attorneys of record on behalf of the Plaintiff,
being
NKP Manamela Attorneys, of Moshiya’A Mphora House, 55B
Jorissen Street, Moregloed, Polokwane, 0699.
[67]
The
compensation amount payment shall be made into the Attorney of
record’s trust account, which trust account shall be one
envisaged in terms of
section 86(4)
of the
Legal Practice Act, 28 of
2014
, pending the establishment of the Trust to be created and the
issuing of the letters of authority (“
the
Trust”
);
[68]
The attorneys
of record in the action are ordered to establish a Trust for the
benefit of N[…] N[…] B[…], identity
number:
0[…], and the nett proceeds of the action on his behalf, after
the deduction of the taxed party and party scale
costs are to be
deposited to the credit of such Trust.
[69]
The terms of
the trust are to include:
a.
The proposed
trustee is ABSA Trust, represented by Leane Edwards (of Block A, ABSA
Bank Pretoria Campus, 337 Petroleum Street, Waltloo,
Pretoria, 0184)
whose written consent to act as trustee is annexed hereto marked “A“
b.
If Leane
Edwards on behalf of ABSA Trust is unable or unwilling to accept
appointment or for any reason becomes unable to continue
to act once
having been appointed, then the Master of the High Court will in his
or her sole discretion be entitled to appoint
another trustee.
c.
c. The trustee
is required to furnish security for the administration of the trust's
assets. The trustee's fees for the administration
of the trust are to
be calculated at the rate of 1% per annum of the trust assets under
administration.
d.
The trustee
shall administer the trust subject to the powers and terms, which
follow.
i.
The trustee
must in writing accept her/their appointment as such and the benefits
and duties conveyed by the trust deed, and acknowledge
receipt of the
donation in terms of which the trust will be established.
ii.
The trustee
may at any time in writing appoint additional trustees, or one or
more trustees to succeed any or all of them, or one
or more agents
with powers of substitution and delegation, to perform any acts on
their behalf. If ever there is no trustee,
the person who keeps
the books of the trust or any beneficiary may call a meeting of the
beneficiaries, assisted by their guardians
if applicable, which
meeting shall appoint a trustee or trustees, failing which the Master
will appoint a trustee.
iii.
A trustee
shall cease to act as such if he/she resigns, or becomes mentally
disturbed or ill, or alcoholic, or incompetent or unable
to act as
trustee, or being a corporate body, it is liquidated. If any
trustee ceases to act, the remaining trustee/s shall
continue to act
and shall have full powers in terms hereof.
iv.
In
administering the trust, the trustee shall follow such procedure as
they deem fit. Proper books of account shall be kept.
The
trustee may appoint an auditor for the trust, but are not obliged to
do so. Leane Edwards on behalf of ABSA Trust shall have
the sole
signing powers on all banking accounts and shall have the power to
veto any decision. Nevertheless, she shall consult
with the
other trustees, if any, as to any distributions.
v.
Any trustee or
trustee’s agent who is a professional person will be entitled
to perform professional work for the trust and
to charge reasonable
professional fees for such services over and above the fees allowable
to the Trustee as set out herein. The
Master of the High Court is
entitled to call for taxation of any fees so charged.
vi.
The trustee
has the power to perform in the name of the trust or in their own
name on behalf of the trust, any acts and enter into
any contracts
and undertake any obligations, whether commercial or otherwise, which
may be done by a natural person of full legal
capacity, which powers
include but are not limited to the following:
1.
To purchase or
acquire in any shares, unit trusts, debentures, stocks, negotiable
instruments, mortgage bonds, notarial bonds, securities,
certificates, and any moveable or immovable property or any
incorporeal rights and to invest in such assets and to lend funds to
any party or make a deposit or investment with any institution, such
as investments to be of such nature and on such terms and
conditions
as the trustee may deem fit;
2.
Exchange,
replace, re-invest, sell, let, insure, manage, modify, develop,
improve, convert to cash or deal in any other manner with
any asset
which from time to time form part of the trust funds;
3.
Pledge any
trust assets to encumber such assets with mortgage bonds or notarial
bonds to utilise same as security in any manner
whatsoever;
4.
Institute or
defend any legal proceedings or otherwise to take any other steps in
a court of law or other tribunal and to subject
controversies and
disagreements to arbitration;
5.
To call up and
or collect any amounts that may from time to time become due to the
trust funds;
6.
Settle or
waive any claim in favour of the trust;
7.
Exercise any
option and to accept and exercise any rights;
8.
Exercise any
rights or to incur any obligation in connection with any shares,
stocks, debentures, mortgage bonds or other securitys
or investments
held by the trust;
9.
Open accounts
at any bank or other financial institution and to manage such
accounts and if necessary to overdraw such accounts;
10.
Take advise
from any attorney or advocate or any other expert for the account of
the relevant trust account;
11.
Lodge and
proof claims against companies in liquidation or under judicial
management and against insolvent or deceased estates;
12.
Appoint
professional or other person on a temporary or permanent basis to
conduct the whole or any portion of the business of the
trust under
supervision of the trustee or manage the investment opart or the
entirety of the funds of the trust and remunerate
such persons for
their services out of the funds of the trust;p
13.
Form any
company and to hold any interest in any company and to form any other
trust to hold an interest in any other trust or partnership
or
undertaking for the purposes of this trust or in the interest of
Ngobeni Nyiko Bornwise;
14.
Amalgamate
with any other trust with the same or similar aims in this trust;
15.
Commence any
business or continue such business or to acquire an interest therein
and for such purpose to acquire assets or to incur
expenses and to
partake in the management, supervision and control of any business
and to conclude any partnership or joint venture;
16.
Accept any
disposal in favour of this trust and to comply with any conditions
regarding such disposal;
17.
In general, do
all things and to sign all documents required to give effect to the
aims of this trust.
e.
The trustee
has an absolute and unlimited discretion, in all matters relating to
the trust but they may not act contrary to this
order and the trust
deed to be drafted in accordance herewith.
f.
The trustee
and
his
/or
her successor or successors shall be required to provide security for
the due administration of the trust.
g.
The trustee
shall not be personally liable to the beneficiaries for any trust
losses, except caused by gross negligence or deliberate
wrong.
h.
The trustee
shall under no circumstances be personally liable to creditors of the
trust.
i.
The
beneficiary, who for income and capital, is
N[…]
N[…] B[…]
and
any of
his
biological or
legally adopted child
/
ren
for whom
he
would be
responsible for in law to maintain and support.
j.
No asset,
capital or income of the trust will vest in any beneficiary until
such is actually paid over, handed over or delivered
by the trustee
to the beneficiary. No capital or income benefit to which any
beneficiary is or may become entitled by virtue
of this trust deed
shall, prior to actual payment or transfer thereof by the trustees to
the beneficiary, be capable of being ceded,
assigned or pledged, or
transferred in any way, or be capable of attachment by any creditor
or trustee of a beneficiary upon insolvency,
unless the trustees
consent thereto in writing.
k.
The trustee
may in h
is/h
er
absolute discretion, at any time prior to termination of the trust,
transfer or pay any part of the trust fund to the beneficiary,
as the
free and absolute property of such beneficiary.
l.
Any asset or
money which the beneficiary receives pursuant to this trust deed
shall not form part of any joint estate, and shall
not be subject to
any marital power.
m.
The trust deed
can only be amended in writing with the consent of the Master of the
High Court and, failing such consent, with the
leave of this Court
provided however that
no amendment which is in conflict with the provisions of the Court
Order may be effected without the prior
leave of the Court having
been granted thereto.
[70]
The Defendant shall pay the Plaintiff’s taxed or agreed party
and party costs on the High
Court scale, which shall include the
reasonable costs incurred by and on behalf of the Plaintiff, as well
as the costs consequent
to attending the medico-legal examinations.
______________________
C MARAIS
ACTING
JUDGE OF THE HIGH COURT
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. The date and time for
hand-down is deemed to be 16h00 on _________ 2024.
DATE OF
HEARING:
12 October 2023.
DATE JUDGMENT
DELIVERED:
________________ 2024.
APPEARANCES
:
Counsel for the
Plaintiff:
Attorney for the
Plaintiff:
NKP Manamela Attorneys
Email
Address:
info@nkpattorneys.co.za
Counsel for the
Defendant:
-
[1]
See:
T Boezaart ‘The role of a curator ad litem and children’s
access to the courts’ 2013
De
Jure
.
[2]
Ibid.
[3]
Modiba
obo Ruca; In Re: Ruca v Road Accident Fund (12610/2013; 73012/13)
[2014] ZAGPPHC 1071 (27 January 2014) at para 1 thereof.
[4]
As
cited in
Scott
and Others v Scott and Another
(2020) ZAKZDHC 37 at para 1.
[5]
See AA
Mutual Association Ltd v Maqula 1978(1) SA 805 (A) 812
[6]
Master
of the High Court v The Pretoria Society of Advocates and Others;
Van Rooyen N.O. obo Ntzokhe v Road Accident Fund;
Raphulu v Road
Accident Fund; Raubenheimer obo Brian v Road Accident Fund; Segoba
obo Sekwne v Road Accident Fund; Wentzel v
Road Accident Fund
(35182/2016;28304/2014;44200/2018;17258/2015;40258/2021;35182/2016)
[2022] ZAGPPHC 396;
2022 (6) SA 446
(GP) (20 May 2022)