SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

Case Number: 2019/44093

In the matter between :
A[...] M[...] obo PLAINTIFF
Z[...] M[...]
and
ROAD ACCIDENT FUND DEFENDANT


JUDGMENT

NGENO , AJ

[1]Plaintiff sues herein in his capacity as the father and natural guardian of Z[…] M[...](the minor child). At the time of the accident, the minor child was staying with
the Plaintiff and his wife and sti ll stays with them to date. (1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES:NO
(3) REVISED: NO
________________
DATE 17/02/2025 SIGNATURE
2

[2]The minor child sustained injuries in a motor vehicle accident that occurred on 29
September 2017 between Kestrel and Flamingo Streets, Mackenzie Park, Benoni .
He was a passenger at the time of the accident, seated at the back seat when the
insured driver lost control of the motor vehicle bearing registration numbers 7[...] and
causing it to overturn. At t he time of the collision, he was 10 years old and doing
Grade4 at P[…] Primary school.

[3]As a result of the collision, the minor child was admitted to Sunshine and Glynwood
hospitals for treatment of the injuries. He was diagnosed to have suffered the
following injuries:
3.1 A mild traumatic brain with direct trauma to the craniofacial
structures
causing multiple facial bone structures and los s of consciousness at scene;
3.2 Loss of the lower teeth jaw ;
3.3 Disfigurement on his face including lacerations to both lips ,
nose,
mandible and right eye (which has resulted in poor vision including blurry
vision) ;
3.4 Severe facial lacerations involving the right alar nasi, the bridge
of the
nose and the right lower eyelid;
3.5 A fracture of the nose extending into the ethmoid, maxillary and
frontal
sinuses ;
3.6 Frontal pneumocephalus;
3.7 Bilateral fractures of the mandible;
3.8 Laceration of the occipital scalp;
3.9 Soft tissue injury to the cervical spine;
3.10 Soft tissue injury to the lumbar spine;
3.11 Soft tissue injury to the chest and ribs;
3.12 Soft tissue injury to the right radius;
3.13 Soft tissue injury to the left tibia;
3
3.14 Soft tissue injury to the left cuff; and
3.15 Soft tissue injury to the right pelvis.

[4]Even though the defendant had initially raised two special pleas of locus standi of the
plaintiff to institute the claim on behalf of the minor child and jurisdiction owing to
failure to submit serious injury report filled by the medical practitioner , after the filing
of the replication to the plea and on 13 June 2024, the defendant made an offer on
general damages on the basis that it would pay plaintiff an amount of R1 300 000.00.
The defendant also offered to provide the plaintiff with an undertaking in terms of
section 17(4)(a) of the Road Accident Fund Act1 for payment of future medical and
related expenses. The defendant’s offer was accepted by the plaintiff on 09 July
2024.

[5]The parties have agreed that the settlement agreement relating to the offer of
general damages and future medical expenses may be made an order of court upon
determination of the outstanding issues. This agreement is recorded in paragraph 3 of the pre- trial minute dated 25 October 2025.

[6]In paragraph 4 of the pre- trial minute of 25 October 2024, the parties have recorded
that t he defendant has admitted the injuries mentioned in paragraph 3 of this
judgment.

[7]There are two remaining issues that must still be determined by the court. They relate to the liability regarding the loss of earning capacity and past medical
expenses.

[8]The plaintiff appointed various experts which include an Orthop aedic Surgeon,
Occupational Therapist, Educational and Clinical Psychologist, Clinical and
Neuropsychologist, Neurosurgeon, Plastic and Reconstruction surgeon and
Industrial Psychologist . Some of the findings of these experts will be discussed
below.


1 56 of 1996.
4
[9]The defendant did not appoint expert witnesses even though it was ordered in terms
of the court order dated 14 March 2022 to make an election within 5 days of the
service of the order whether it will be appointing its own experts or relying on such
findings of the plaintiff’s experts. The defendant failed to make an election as ordered
by the court.

[10]The defendant also did not call witnesses to testify on its behalf. In its plea, the
defendant did not offer a version. It also does not dispute the evidence contained in
plaintiff’s expert reports.

[11]At the commencement of the trial, t he plaintiff made an application in terms of rule
38(2) of the Uniform rules for the factual evidence and findings contained in the
reports of his appointed experts to be admitted into evidence. I granted the
application.

[12]For actuarial calculations, plaintiff relies on the report prepared by Johan Potgieter of
GRS Actuarial Consulting. The report was duly served on the defendant timeously .

Neuro surgeon

[13]According to Dr Segwapa, the plaintiff’s Neurosurgeon, the minor sustained a head
injury, facial lacerations , multiple facial fractures and soft tissue injury to the thoracic
spine. On arrival at the hospital his GCS was 13/15. Dr Segwapa reports that the
minor child sustained a mild traumatic brain injury. The injuries as contained in the
Neurosurgeon’s findings, are consistent with the hospital records.

[14]He reports that on examination, the minor child presented a 4 cm scar on the
glabella and nasal bridge, 2, 5 cm scar on the nose and abrasion scars on the
occiput. The minor child had no difficulty in concentration and had paid attention well
during the interview and sustained it throughout .

[15]The sequelae of the injury inc lude s uffering chronic pains to date and post -
concussion headaches . There is a risk that the minor child may develop epilepsy.
5
The minor child will require future medical treatment to manage the headaches and
thoracic spine disease.
Clinical Psychologist

[16]In his report, Mr C Sampson states that the minor child has neurocognitive deficits in
multiple domains tested and depressive symptoms. The identified cognitive deficits
have negatively impacted the minor child’s scholastic functioning and there is a likelihood that this condition will continue as he progresses to higher grades.

[17]The facial disfigurement impairs his self -esteem and probably contributes to the
symptoms of depression and behavioural difficulties.

[18]On neuropsychological assessment, he was found to have widespread impairment across various domains of cognitive functioning which include but not limited to mild impairment in concentration and mental tracking ability, visuomotor tracking, visual selective attention, recall of visual information, verbal concept formation and abstract reasoning.
Educational Psychologist

[19]The plaintiff also appointed an E ducation Psychologist Rosalind Macnab to assess
and determine the minor child’s pre- and post-accident educational potential and
investigate the impact of the injuries sustained by the minor child on his education
performance and potential leading to employment prospects.

[20]According to the Educational Psychologist, the minor child was probably a high
average learner prior to the accident and would have probably coped adequately with the requirements of a mainstream school up to grade 12 with the probability of attaining post matric studies such as the degree(NQF7) and the possibility of attaining a post graduate qualification.

[21]He performed very well at school before the accident with his marks ranging from 70
to 90% for Grade 1, falling within 80% for Grade 2 term 1 and 2. In Grade 3 there
6
was a slight decline in his performance as he obtained an average of 73% for Term1,
63% for Term 2, 57% for Term 3 and 62% for Term 4. In Grade 4 there was a slight decline in his performance as he obtained 61% for Term 1 and 55% for Term 2 and Term 3.

[22]In terms of the post -accident cognitive skills and capabilities, the minor child
experiences difficulties with comprehension as he struggles to understand what he is reading or comprehend the content of what he is taught. He has poor memory and has difficulties remembering the work that he is taught.

[23]His post -accident intellectual functioning falls within the impaired range rendering
him severely cognitively challenged. His academic profile revealed severe difficulties
in all learning areas. His school profile is likely to deteriorate further as the higher
grades place greater demands in terms of workload and abstract content.

[24]As a result, the Educational Psychologist has concluded that the minor child will not be in a position to realise his pre- morbid potential. She finds that the minor child is
not coping with the requirements of a mainstream school and recommends that he
must be placed and educated in a special needs (LSEN) school. She concludes that
the minor will be unable to complete G rade 12.
Occupational Therapist

[25]Plaintiff also appointed an Occupational Therapist Caryn Bekker to comment on the
effect of the injuries on functional ability and to discuss additional assistance, special and adapted equipment and adaptations needed.

[26]According to the Occupational Therapist, his parents reported that he requires
assistance with self -care (washing and dressing) as well as other daily living
activities during his recovery period.

[27]On functional difficulties related to the injuries, the severe scarring on his face has caused him to become less confident due to his appearance. He experiences
7
difficulty in applying himself during scholastic tasks and finds it challenging to retain
information that he is taught at school.

[28]On residual vocational capacity, it is clear that he experiences physical limitations
and restrictions. He is currently suited to load handling of up to medium work. He has not reached his full level of maturity and therefore for his true physical vocational potential as an adult to be ascertained, he should be assessed once he has reached full maturity.
[29]According to the Occupational Therapist, the impact of neuropsychological and cognitive impairments will result in significant limitations in his career or employment capacity. He is likely to be suited to supported or sheltered employment if the problems mentioned above persist into adulthood.
Industrial Psychologist

[30]The Industrial Psychologist, Dr Gulshan Sugreen was instructed to evaluate the
effects of the accident and its sequelae on the minor child’s future employment
prospects. The prospects are evaluated with regards to pre- and post -accident
career prospects considering the evidence and findings of the Neurosurgeon,
Clinical Psychologist, Educational Psychologist, Orthopaedic surgeon, Occupational
Therapist and Plastic surgeon.

Pre-accident potential

[31]The minor child was 10 years old at the time of the accident and doing Grade 4.
Having considered findings of other expert witnesses, the Industrial Psychologist is of the view that the minor would probably have entered the labour market with a degree on NQF level 7 and possibly with a n Honours degree at NQF level 8 but for
the accident.

[32]With the probability of a degree , the minor child would have entered the labour
market at an entry lev el between R166000 - R303000.00 per annum depending on
his filed of studies. With experience and further development at around the median,
8
there is a probability that he wold have earned between R421000 and R759000.00.
By late career, the he would have been at salary range between R535000.00 to R1012000.00.

[33]With the possibility of an Honours Degree, at entry lev el he would have been
between R216000.00 and R363000.00. With experience and further development he would have moved to an annual salary range between R476000.000 and
R874000.00 at around the median. By late career, he would have been at a salary range between R597000.00 and R1 140000.00.
Post -morbid potential

[34]In view of the fact that the minor child is not coping with the requirements of a
mainstream school, the Educational Psychologist recommended that he should be placed and educated at a TVET college. Given his post -morbid profile, he will not be
able to matriculate.

[35]His entry level earnings per annum would range between R56000.00 and R71000.00
depending on the field of studies. With anticipated income growth that comes with
experience and further development, he would move to a salary range between R94000.00 and R162000.00 at around median. By late career between the ages of 45 to 55 he would have moved to a salary range between R118000.00 and R162000.00.

[36]Considering his post -accident potential and given his educational,
neuropsychological, psychological and psychosocial, physical in addition to the disfigurement he has suffered, his employment options are considered limited. His prospects of securing full time meaningful income generation in the formal sector is considered to be limited.

[37]In the event he is able to secure full time employment, given his impairments and how these manifest in a work environment, he may not able to sustain such employment.

9
General approach on loss of earning capacity

[38]Generally in personal injury claims it is accepted that loss of earning capacity is a
patrimonial damage because it results in the diminution of value of the injured
person’s estate as a result of the delict committed. Patrimonial damage is determined by comparing a person’s estate before the delict to the situation and
immediately after the delict.

[39]It is trite that the court enjoys a general discretion on the amount it should award for damages. Such discretion must be exercised judiciously and not arbitrarily. In exercising its discretion, the court must be guided by what is fair and just in the circumstances of a particular case.

[40]The purpose of awarding damages is to place the plaintiff to the fullest possible
extent in the same position he was or would have been but for the accident. It is not
to put him in any lesser or better position. The objective is to compensate the plaintiff
for his loss and not to punish the defendant . In fact, when considering a fair and
reasonable amount, the court must regard the defendant with greater favour than the
plaintiff. This balancing act may be achi eved only by taking into account all relevant
contingency deductions which include the possibility of employment in the formal
sector .

[41]The approach of assessing damages for loss of earning capacity is not an easy
exercise because it involves a fair amount of guesswork. This means that certain
assumptions will have to be made. In determining a fair and reasonable amount, t he
court must make a comparison between the position of the claimant before and after
the accident. In Southern Insurance Association Ltd v Bailey No
2 the court said the
following:

“Any enquiry into damages for the loss of earning capacity is of its nature
speculative, because it involves a prediction as to the future, without the benefit of crystal balls, soothsayers, augurs, or oracles. All that the Court can

2 Southern Insurance Association Ltd v Bailey 1984(1) SA 98(A)
10
do is to make an estimate, which is often a very rough estimate, of the present
value of the loss. It has open to it two possible approaches. It has open to two possible approaches. One is for the Judge to make a round estimate of an amount which seems to him to be fair and reasonable. That is entirely a matter of guesswork, a blind plunge into the unknown. The other is to try to make an assessment, by way of mathematical calculations, on the basis of assumptions resting on the evidence. It is manifest that either approach involves guesswork to a greater or lesser extent. But the Court cannot for this reason adopt a non- possums attitude and make no award”.

[42]In the Southern Insurance matter at paragraph 113 it was stated that the courts
ought to favour the mathematical calculations which are in the form of actuarial calculations as they are a logical attempt to quantify the loss. This is so, the cou rt
reasoned, because the trial Judge’s gut feeling as to what is fair and reasonable is nothing more than a blind guess.

[43]Contingencies are a factor that the court needs to take into account when assessing
damages for loss of earning capacity because there are generally no certainties in
life. Contingencies are normal consequences and circumstances of life which would
affect the amount of money the plaintiff would have earned. Contingencies are entirely at the discretion of the court and are dictated to by the circumstances of a
particular case.

[44]The general approach adopted in similar matters has always been that contingency deductions are not prescriptive, and are a mere suggestion, since they are a
prerogative of the courts. It has become customary for courts to apply the so- called
sliding scale to contingencies which entails a half percent for year to retirement age that is 25% for a child, 20% for a youth and 10% in the middle age.
3

Analysis and application of law to the facts


3 Goodall v President Insurance Company Ltd 1978 (1) SA 389 (W).
11
[45]The issue of whether or not plaintiff in his capacity as aforesaid has a claim for loss
of earning capacity is not in dispute. What remains is the determination of a fair and
reasonable compensation having regard to the findings of the experts and actuarial calculations.

[46]It is also not in dispute that as a result of the accident, the minor child sustained
head injury, facial lacerations, multiple facial fractures and soft tissue injury to the thoracic spine. This is so because the parties have agreed to these injuries as common cause as recorded in the joint pre -trial minute of 25 October 2024.

[47]The court accepts that the effect of the injuries has presented the minor child with
severe facial scarring and deformity which has changed his appearance dramatically .
The court was favoured with photos taken before and after the accident and a
comparison was made.

[48]The minor child was in Grade 4 at the time of the accident and had already
completed Term 3. The minor child did not return to school to do Term 4 after the accident. There is also no dispute that prior to the accident the intellectual
functioning was intact. The accident has caused it to fall within the impaired range with the result that the minor child is not coping with the requirements of a
mainstream school and hence the recommendation that he must be placed and
educated in a special needs (LSEN) school.

[49]I have also taken note of the fact that before the accident, there was a decline in the minor child’s academic performance. This will be a factor that will be considered
when the court determines the contingencies to be applied on pre- morbid. The court
was also not provided with the copy of Grade 11 report. The defendant’s counsel submitted that contingencies on post morbid should be decreased because of this factor.

[50]The minor child continues to experience headaches approximately twice a week and
this is often triggered when he spends time in the sun, when he is stressed or anxious about the school work and also when he attempts to concentrate for a long
time.
12

[51]On the evidence that has been presented I have no difficulty in accepting that the
minor child experiences residual physical limitations which are as a result of the injuries sustained.

[52] I also have no difficulty in accepting the evidence from all the experts appointed by
the plaintiff. I also have no difficulty in accepting the plaintiff’s evidence as it was uncontested.

[53]Defendant’s counsel also argued that when dealing with a minor child, a higher than normal contingency should be applied. He submitted that I should apply 25% for pre morbid. For this submission he referred me to the case of Road Accident Fund v
Guedes 2006(5) SA 583 SCA.

[54]On the conspectus of all the evidence as contained in the experts ’ reports, I come to
the conclusion that the accident has had a serious impact on the earning capacity of
the minor child and must be compensated accordingly .

[55]With regard to the post morbid employment, I have had regard to the Industrial
Psychologist report which state that the minor child will benefit from placement in a TVET college that will provide him with the education and practical skills and training
necessary to take up a specific trade. The placement will equip the minor child with
knowledge and practical skills . Defendant’s counsel also submitted that the minor
child will benefit from a TVET college for a streamlined career.

[56]Notably, the Indus trial Psychologist does not mak e a provision for a possibility of the
minor child being self -employed. All the postulations are based on potential for
employment in the formal sector .

[57]Accordingly , there is no postulation on the possibility that once he is equipped with
knowledge and practical skills by the TVET college, it is likely that he may establish
his own business once he qualifies for a specific trade. This information is important
for the court to take account of in determining a just fair compensation. The effect
thereof will be that this possibility would have an effect on the contingency that the
13
court will have to apply. In applying what it deems to be the appropriate contingency
on post morbid, the court will take into account this likelihood.

[58]I have taken note of the fact that, even though the minor child’s performance declined after the acc ident, he has never failed any grade before and after the
accident.

[59]Plaintiff’s counsel submitted that I should apply the contingency on the probability as opposed to the possibility. The probability is that the minor child should have proceeded to obtain matric and a degree. The possibility is that the minor child could
have gone up to Honours’ level after the degree. On the basis of the plaintiff’s
submission, scenario 2 which is based on the minor child obtaining an Honours’
degree should fall away. Plaintiff’s counsel submitted that in view of the
circumstances of the case I should apply 20% contingency on pre- morbid and 35%
on post -morbid.

[60]Having in mind that I should confine myself to only scenario 1, accordi ng to the
actuarial report pre-morbid the minor child would have completed grade 12 in
December 2025 and a degree in December 2029. The minor child would have
started working on 01 January 2030 earning R234 500.00 per annum. At the age of
40, the minor child would have been earning an amount of R590 000.00 per annum
and at the age of 50, the minor child would have been earning an amount of R773 500.00 per annum. All the amounts would increase with inflation.

[61]The ac tuarial report states that post -morbid, the minor child would have start ed
working on 01 June 2030 and earning an amount of R63500.00 per annum. At the age of 40, the minor child would have been earning an amount of R128 000.00 per
annum and at the age of 50, he would have been earning an amount of R167000.00 per annum. All these amounts would increase with inflation.

[62]In both pre - and post -morbid scenarios, the minor child would have worked until the
age of 65.

14
[63]Taking into account that the circumstances of this case and in particular the
academic profile of the family and the decline of the minor child’s academic
performance pre-morbid , I come to the conclusion that the appropriate c ontingency
to be applied on pre- morbid is 25%. The actuarial calculations indicate that the
income the minor child would have received pre- morbid would have been R9 214
952.00. Applying the contingency of 25% percent an amount of R2 303 738.00 would
have to be deducted. This would leav e a net amount of R6 911 214.00.

[64]Regard being had to the fact that the minor child had never failed any grade after the
accident despite his limitations and also taking into account that the minor child will benefit from the TVET college and could be self -employed, I come to the conclusion
that the appropriate contingency to be applied post -morbid is 30%. The actuarial
calculations indicate that post -morbid, the minor child would have earned an income
of R2 491 011.00. Applying the contingency of 25% an amount of R 747 303.30
would have to be deducted. This would leave a net amount of R1 743 707.70.

[65]Accordingly, I come to the conclusion that plaintiff is entitled to a fair and reasonable compensation for loss of ear ning capacity in the amount of R5 167 506.30.
Past Medical Expenses

[66]I now turn to deal with the damages relating to past medical expenses . It is common
cause that following the accident, plaintiff had received medical treatment. He was
admitted at Sunshine hospital and thereafter at Glynwood hospital.

[67]Plaintiff testified personally and stated that some of the medical expenses were paid
by the medical aid and some have not yet been paid. Plaintiff was taken through all
the vouchers when evidence was led. The total amount that represents all the
vouchers is R1 192 248.17.

[68]There is no dispute on the past hospital, medical and ancillary expenses incurred by the plaintiff and/ or medical aid for the minor child. The defendant has agreed to this fact as recorded in paragraph 4.3 of the pre- trial minute of 25 October 2024.

15
[69] In terms of section 17 of the Road Accident Fund Act, the defendant is liable to
compensate claimants for all proven damages including past medical expenses.

[70]There was an issue raised by defendant’s counsel that since some of the expenses
were settled by the medical aid, plaintiff did not suffer damages and that the principle of subrogation applies.

[71]The issue of medical expenses already paid by the medical aid has been settled in our law. In the matter that came before this division
4, Mbongwe J quoting from
D’Ambrosini v Bane 2006(5) SA 121 (C) , Mbongwe J states the following:

“medical aid scheme benefits which the plaintiff has received, or will receive are not deductible from (sic) in determining his claim for past and future hospital and medical expenses.”

[72]In D’Am brosini v Bane
5 matter, the court also reasoned as follows:

“This is a fallacious argument in that it ignores the established fact that, at the
time he suffered such injuries, the plaintiff was, and still is, a member of a
medical aid scheme, which has , in fact , raised his premiums in return for all
embracing cover. He has not received, nor is it envisaged that he will , in
future , receive any benevolent or ex gratia payments from such scheme.
There is hence no question that any payments made to him by the scheme are in the nature of deductible social insurance benefits. I am in respectful agreement with Gautschi AJ in the Thomson case (par [41] above) that a medical aid scheme, such as that of which the plaintiff is a member, is , in
substance a form of insurance. In my view , it is no different from any other
form of indemnity insurance which offers cover against injury or damage in return for premium payments.”


4 Discovery Health(Pty) Limited v Road Accident Fund and Another(2022/016179)[2022]ZAGPPHC
768( 26 October 2022)
5 D’Ambrosini v Bane 2006(5) SA 121
16
[73]In Zysset and Others v Santam Ltd 1996(1) SA 273 (C) at 277H -279C the court
stated the following:

“The modern South African delictual action for damages arising from bodily
injury negligently caused is compensatory and not penal. As far as the
plaintiff’s patrimonial loss is concerned, the liability of the defendant is no more than to make good the difference between the value of the plaintiff’s estate after the commission of the delict and the value it would have had if the delict had not been committed…Similarly, and notwithstanding the problem of placing a monetary value on a non- patrimonial loss, the object in awarding
general damages for pain and suffering and loss of amenities of life is to compensate the plaintiff for his loss. It is not uncommon, however, for a plaintiff by reason of his injuries to receive from a third party some monetary or compensatory benefit to which he would not otherwise have been entitled. Logically and because of the compensatory nature of the action, any advantage or benefit by which the plaintiff’s loss is reduced should result in a corresponding reduction in the damages awarded to him. Failure to deduct
such a benefit would result in the plaintiff recovering double compensation
which, of course, is inconsistent with the fundamental nature of the action.

Notwithstanding the aforegoing, it is well established in our law that certain benefits
which a plaintiff may receive are to be left out of the account as being completely
collateral. The classic examples are (a) benefits received by the plaintiff under
ordinary contract of insurance for which he has paid the premiums and (b) money
and other benefits received by a plaintiff from the benevolence of third parties
motivated by sympathy. It is said that the law baulks at allowing the wrongdoer to
benefit from the plaintiff’s own prudence in insuring himself or from a third party’s
benevolence or compassion in coming to the assistance of the plaintiff.”

[74]I am therefore satisfied that the plaintiff has on a balance of probabilities proved that
he is entitled to be compensated for past hospital and medical expenses. The claim
must therefore succeed.

17
[75]I now come to the issue of costs. The plaintiff has been successful in his claim
against the defendant in all the heads of damages and for that reason the costs
should follow the result .

[76]In the result, I make the following order:

76.1 The Defendant is liable for 100% of the Plaintiff’s proved or agreed delictual
damages arising from the injuries which Z[...] M[...] sustained in the motor vehicle
collision which occurred on 29 September 2017.
76.2 The Defendant is directed to pay to Plaintiff the amount of R7 659 754.47
(seven million, six hundred and fifty nine thousand, seven hundred and fifty forty
seven cents), and which comprises: -

General Damages R1 300 000.00
Future Loss of Earnings R5 167 506.30
Past Hospital and Medical Expenses R1 192 248.17

76.3 The capital amount in the sum R7 659 754.47 (seven million, six hundred and
fifty ni ne thousand, seven hundred and fifty forty seven cents), shall be paid into the
trust account of Plaintiff's attorneys of record, within 180 (one hundred and eighty) days of the date hereof, which details are as follows: -
Name of Account: W[…] & W[…] Attorneys Trust Account
Bank: F[…] N[…] B[…]
Branch Code: 2[…]
Account No: 6[…]
76.4 In the event that the capital amount as aforesaid is not paid in full within 180
(One Hundred and Eighty) days of the date of this order as stipulated in paragraph 3
above, then in that event, the Defendant shall be liable for interest on the capital
amount or any part thereof, a tempore mora from 15 (fifteen) days after the date of
this Court Order, to date of final payment.
76.5 The Defendant is directed to furnish the Applicant/Plaintiff, within 14 (fourteen)
days of Judgment, with an Undertaking in terms of section 17(4)(a) of the Road
18
Accident Fund Act 56 of 1996, as amended (“ the undertaking” ), to reimburse Z[...]
M[...], for the cost of future accommodation in a hospital or nursing home, or
treatment of, or the rendering of a service, or the supplying of goods to him, arising out of the injuries sustained by him in the motor vehicle collision that occurred on 29 September 2017, after such costs have been incurred and upon proof thereof.
76.6 The aforesaid amount of R7 659 754.47 ( seven million, six hundred and fifty
nine thousand, seven hundred and fifty forty seven cents ), shall be kept in the trust
account of Wadee & Wadee attorneys, in an interest -bearing account in terms of
Section 86(4) and (5) of the Legal Practice Act No 28 of 2014, for the sole benefit of Z[...] M[...] pending the formation of a Trust as referred to below and the opening of a
bank account of the Trust.
76.7 The Plaintiff’s Attorney Wadee & Wadee Attorneys shall: -
76.7.1. cause a Trust to be established in accordance with the provisions of
the Trust Property Control Act, No 57 of 1988 on favour of Z[...] M[...] within six
months hereof;
76.7.2. be entitled from the aforesaid capital amount and interest, where
applicable, to deduct their fees and/or disbursements for professional services rendered;
76. 7.3. account for any payment/s m ade from the capital amount and
interest applicable thereon.
76.8 The trust instrument, contemplated in paragraph 7 above, shall inter alia make
provision for the following: -
76.8.1 Z[...] M[...] to be the sole capital and income beneficiary of the Trust;
76.8.2 The Trust Property to be excluded from any community of property or accrual
arising from any valid marriage concluded by Z[...] M[...] ;
76.8.3 The sole purpose of the Trust is to administer the estate of Z[...] M[...] in a
manner which best takes account of Z[...] M[...]’s interests at the relevant times;
76.8.4 The number of Trustees for the purpose of transacting the business of the
Trust (save the appointment of the Truste es) shall be three (3) and such number
shall not be exceeded or reduced;
76.8.5 The appointment of at least (3) three Trustees of whom at least 1 shall be an
independent Trustee who shall be properly qualified to administer the Trust assets,
19
and who should ideally be either a banking institution and/or an accountant or an
attorney;
76.8.6 The composition of the Board of Trustees and the structure of the voting rights
of the Trustees to be such that:
76.8.6.1. The calling and holding of meetings is specified;
76.8.6.2. The taking of all resolutions is properly regulated and recorded in
writing; 76.8.6.3. The Trustees are to attempt to achieve unanimity on all decisions of the
Trust;
76.8.6.4. If same is not achieved, an adequate procedure is specified to resolve
disputes between the Trustees;
76.8.6.5. A deadlock between the Trustees is avoided;
76.8.6.6. That any procedures to resolve any potential disputes to be referred to
the Master of the High Court, subject to the review of any such decisi on by this
Honourable Court;
876.8.6.7. The remaining Trustees are prevented and/or precluded from acting
otherwise than to achieve the appointment of a replacement Trustee, in the event of their number being reduced below that prescribed;
76.8.6.8. To act in a tax efficient and cost -effective way at all times including but
not limited to making investments and/or recovering their remuneration and/or costs;
76.8.6.9. No charge shall be made by any Trustee in relation to the receipt of the
initial payment to the Trust of the proceeds of the litigation.
76.8.7. That any procedures to resolve any potential disputes to be referred to
the Master of the High Court, subject to the review of any such decision by this Honourable Court.
76.8.8. The powers of the Trustees to be exercised with specific reference to
the circumstances of Z[...] M[...] and such to include but not be limited to: -
76.8.8.1. The right to purchase, sell and mortgage immovable property, invest
and reinvest the Trust capital and/or income; b82c86- 7
76.8.8.2. Applying the net income of the Trust Fund and if that is not adequate at
any time for the purpose, the capital thereof, for the maintenance including, without derogating from the meaning of the term, the maintenance of Z[...] M[...], his
reasonable pleasures, entertainment, general upkeep, educational needs, welfare benefits and rehabilitation and the acquisition or provision of residential facilities or a
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residence for Z[...] M[...] when he is an adult. The income not used as aforesaid shall
accumulate to the capital;
76.8.8.3. T he provision of a monthly stipend to the Plaintiff on behalf of Z[...]
M[...] alternatively to Z[...] M[...] directly when he becomes an adult after due and
proper consideration of his needs, requirements and his ability to manage such
funds,
76.8.8.4. T he provision for a reasonable annual increase in the above monthly
stipend subject to an annual review of the Plaintiff’s alternatively Z[...] M[...] ’s needs,
requirements and ability to manage such funds.
76.8.9. The duty of the Trustees to disclose any personal interest in any
transaction involving the Trust property to the Master of the High Court;
76.8.10. The amendment of the Trust instrument subject to the leave of the High
Court only;
76.8.11. The termination of the Trust on the death of Z[...] M[...] alternatively
only with the leave of this Honourable Court;
76.8.12. The right of the Trustees to settle the Plaintiff’s Attorneys “attorney and
client fee”;
76.8.13. The Trustees shall be entitled to call for a taxation of the Plaintiff’s
Attorney’s “attorney and client fee”, if deemed necessary;
76.8.14. Subject to the approval of the Master of the High Court, the nomination
of the below – mentioned First Trustees whose consents have been obtained:
76.8.14.1. Fatima Parker on behalf of First National Bank Trust Limited - as an
Independent Trustee;
76.8.14.2. Z[…] M[...], in her capacity as mother and natural guardian of Z[...]
M[...] and who has identity no: 7 […] ; and649b8eb82
76.8.14.3. Khadija Adams Paruk Razack, an adult female, with identity no: 7[…]
76.8.15. The Trustees should immediately take all the requisite
steps to secure an appropriate bond of security for each of them, to the satisfaction of the Master of the High Court, for the due fulfilment of their obligations and to ensure that the bond/s of security be submitted to the Master of the High Court at the appropriate time as well as to all other interested parties, including on an annual basis. 76.8.16. Z[…] M[...] is to: -
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76.8.16.1. specifically be excluded from charging any remuneration for their duties
as trustee, as they might have been entitled to in terms of Section 22 of the Trust
Act;
76.8.16.2. be remunerated only for any disbursement(s) incurred in the course
and scope of their duties as trustees, such to include but not be limited to travelling expenses for attendances at in person trustee meetings.
76.8.17. That the Trust property and the administration thereof be subject to an
annual audit; 8ebc86- 10
76.8.18. The provisions referred to above shall, in accordance with the
provisions of the Trust Property Control Act, No. 57 of 1988, be subject to the approval of the Master.
76.9 In the event that the Trust is not established within six months as
contemplated in paragraph 7 and 8 above, the Plaintiff is directed to approach this Honourable Court within 30 days of the expiry of the first six months period, to obtain
further direction from this Honourable Court with regards to the administration of the capital amount referred to in paragraph 3.
76.10 Pending the formation of the Trust, the First Trustees referred to in paragraph
8.14 above are directed to conduct within one month hereof a “needs analysis” for
Z[...] M[...]’s maintenance.
76.11 The Defendant is directed to pay the costs of the action to date, which costs
shall include but not be limited to, inter alia :
76.11.1 The Plaintiff's attorneys costs including but not limited to:-
76.11.1.1 the costs attendant upon obtaining payment of the capital amount
and/or legal costs and/or interest in full;
76.11.1.2 the costs of the determination of both the merits and the quantum
aspects;
76.11.1.3 telephonic, virtual and/or in person consultations with Plaintiff and/or
counsel and/or witnesses and/or experts.
76.11.1.4 perusal of documentation and/or pleadings in the matter, preparation,
drafting of correspondence and/or pleadings and/or notices, and/or drafting and considering of settlement proposals and offers;
76.11.1.5 preparation for Block Settlement with the Defendant including the cost
of copies of documentation supplied to the Defendant;
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76.11.1.6 attorneys reasonable costs of time spent for travel for issue and
service;
76.11.1.7 preparation and attendances at Pre- Trial Conferences and Special Pre-
Trial Conferences in terms of the Practice Directive/s, including the drafting of the
Pre-Trial Agenda’s and Special Pre- Trial Agenda;
76.11.1.8 Drafting of the Rule 38(2) Application, the drafting of all affidavits
including expert affidavits and aff idavits of the lay witness/es;
76.11.1.9 preparation and consultations for Trial (telephonic and virtual included,
irrespective of whether client was present), including the drafting of the proposed draft orders and contingency fee affidavits; and 76.11.1.10 all appearances at court and the attorney's reasonable travelling costs
to and from Court.
76.11.2 the costs consequent upon the employment of counsel, on Scale B ,
76.11.3 the costs of the below mentioned expert witnesses, including but not
limited to the costs of consultations with the Plaintiff and/or Attorney of Record and/or Counsel, the costs of the reports and/or addendum report, if any, in accordance with Rule 36(9)(a) and (b) respectively, the costs of securing affidavits from the expert witnesses, reservation costs, namely: -
76.11.3.1. Dr E Schnaid (Orthopaedic Surgeon);
76.11.3.2. Drs Matisonn Scott & Tobias Inc (Radiologist);
76.11.3.3. Ms C W Bekker (Occupational Therapist);8eb8
76.11.3.4. Mrs. R Macnab (Educational Psychologist);
76.11.3.5. Dr L Berkowitz (Plastic & Reconstruction Surgeon);
76.11.3.6. Mr C. Sampson (Clinical & Neuropsychologist);
76.11.3.7. Dr LF Segwapa (Neurosurgeon);
76.11.3.8. Dr G. Sugreen (Industrial Psychologist); and
76.11.3.9. Mr. J. Potgieter of GRS Actuarial Consulting (Actuary).
76.11.3.10. the cost associated with the compilation of the RAF 4 Serious Injury
assessment Report/s, namely: -
76.11.3.10.1. Dr E Schnaid (Orthopaedic Surgeon);
76.11.3.10.2. Mr C Sampson (Clinical & Neuropsychologist);
76.11.3.10.3. Dr L Berkowitz (Plastic & Reconstruction Surgeon); and
76.11.3.10.4. Dr LF Segwapa (Neurosurgeon).
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76.11.4. The reasonable travelling costs of attendances at the medico- legal
assessments for the Plaintiff to the experts, including follow up assessment/s.
76.11.5. The aforesaid costs are to be paid by the Defendant directly to the
Plaintiff’s Attorney.
76.11.6. The Plaintiff shall, in the event that costs are not agreed, serve the
notice of taxation on the Defendant.
76.11.7. The Defendant is directed to ma ke payment of the taxed and/or agreed
costs within 180 ( one hundred and eighty ) days of agreement or taxation, as
applicable.
76.11.8. Only in the event that the agreed and/or taxed costs are not paid within
180 (One Hundred and Eighty) days as stipulated in paragraph 11.7 above, then in
that event, the Defendant shall be liable for interest on the aforesaid agreed or taxed
costs or any part thereof, a tempore mora from 15 (fifteen) days after this Court
Order to date of final payment.
76.12. The Contingency Fee Agreement entered into between the Plaintiff and the
Plaintiff’s Attorneys of Records is declared valid.
T NGENO
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG

APPEARANCES
Heard on : 18 November 2024
Judgment delivered on : 17 February 2025
For the Plaintiff : Adv M Patel
Instructed by Wadee and Wadee Attorneys
Parkhurst, Johannesburg
For the Defendant : Mr TH Ngomana
Instructed by State Attorney, Johannesburg