SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 47126/2018
In the matter between:
N[...] A[...] M[...] Plaintiff
and
ROAD ACCIDENT FUND Defendant
Summary: Attorney – duty towards a client in respect of a claim against the
Road Accident Fund (the RAF) which has become settled discussed.
The settlement amount was R 1 650 000.00. At the time this was
agreed on, the plaintiff was still a minor. Despite the matter having
(1) REPORTABLE: NO
(2) OF INTE REST TO OTHER JUDGES: NO
(3) REVISED.
DATE: 11 JUNE 2026
SIGNATURE
been settled on 31 March 2022 and despite payment having been
made by the RAF on 31 July 2023 already, by the time the matter
featured on the Settlement Roll in February 2026, only R 50 000.00
had been paid to the client. The client had by then attained the age
of majority. Lack of proper attention to the needs of client s and the
protection of proceeds of settled claims in respect of vulnerable
persons discussed. Attorneys denied fees for unnecessary
proceedings and undue delays.
ORDER
1. It is noted that the defendant has agreed to pay 90% (Ninety percent)
of the plaintiff's damages in the amount of R 1 650,000.00 ( One
Million Six Hundred and Fifty Thousand Rand and Zero Cents ) after
apportionment and that this agreed amount has already been paid on
31 July 2023.
2. Since the payment was made later than the 180 days after settlement
had been reached, the defendant is ordered to pay interest on the
amount mentioned in par 1 above at the prescribed rate from 1
September 2022 until 31 July 2023.
3. The defendant is ordered to furnish the trustee appointed in respect of
a trust to be created for the benefit of the plaintiff with an undertaking
in terms of Section 17(4)(a) of the Road Accident Fund Act 56 of
1996, limited to 90% for the costs of the future accommodation of the
plaintiff in a hospital or nursing home or the treatment of or the
rendering of a service or the supplying of goods (of a medical and
non-medical nature) to the plaintiff arising out of injuries sustained by
her in a motor vehicle collision on 12 March 2017, in terms of which
undertaking the defendant will be obliged to compensate the trustee in
respect of the said costs after the costs have been incurred by either
the plaintiff or by the trustee or by any party on behalf of the plaintiff
and on proof thereof. The defendant is ordered to pay the reasonable
travelling costs and accommodation for the plaintiff and any caretaker
for her to and from the location where she is to receive treatment
covered under the undertaking.
4. By agreement and w ithout derogating from the generality of the
foregoing, the Undertaking shall include the reasonable costs of the
formation of the trust contemplated in this order for the benefit of the
plaintiff and the costs of administration of the said trust, including the
costs attendant upon the provision of security by the trustee, and
auditing and/or accounting services as set out in the Trust Deed.
5. By agreement t he defendant is ordered to pay the plaintiff's taxed or
agreed party and party cost s on the High Court scale, for the
instructing and correspondent attorneys, which costs may include, but
not be limited to the following:
5.1 The fees of counsel on scale B, including a day fee in respect of
appearance at the settlement roll.
5.2 The cost of obtaining all expert medico legal reports and any
other reports of an expert nature which were furnished to the
defendant;
5.3 The cost of obtaining documentation/evidence, scans, considered
by the expert(s) to finalise their reports;
5.4 The reasonable taxable reservation, qualifying and preparation
fees of all experts whose report(s) were provided to the
defendant;
5.5 The reasonable cost of consultation fees between the plaintiff's
experts and the plaintiff's legal teams regarding the matter;
5.6 The reasonable cost of one consultation between the plaintiff and
the plaintiff's legal team to consider the offer to settle;
5.7 The reasonable taxable accommodation and transportation costs
(including toll and e-toll charges) incurred on behalf of or by the
plaintiff (including one person having to accompany her) in
attending medico legal consultations with all experts and
consultations with the legal representatives;
5.8 The reasonable cost for an interpreter's at the medico legal
appointments for translation of information;
5.9 The above -mentioned payment with regard to costs shall be
subject to the following conditions:
5.9.1 The plaintiff shall, in the event that costs are not agreed,
serve the notice of taxation on the def endant's attorney of
record; and
5.9.2 The plaintiff shall allow the defendant 180 calendar days
to make payment of the taxed costs;
5.9.3 The defendant is to request and load payment within 14
(fourteen) calendar days from date of settlement/taxation
of the bill of cost, with proof of same to be sent to the
plaintiff’s attorneys;
5.10 For purposes of the payment of interest and costs, t he plaintiff's
Attorney's Trust account details are as follows:
ACCOUNT HOLDER: VZLR INC
BRANCH: ABSA BUSINESS BANK
HILLCREST
BRANCH CODE: 632005
TYPE OF ACCOUNT: TRUST ACCOUNT
ACCOUNT NUMBER: 3[...]
5.11 In the event of default on the above payment, interest shall
accrue on such outstanding amount s at the prescribed rate
calculated from the 15th day of the date of this order in respect of
interest and from the 15 th day of settlement/taxation of the bill of
costs until the date of payment.
6. After deduction of the legal costs consultant’s fee for drawing the bill
of costs and attending to its settlement or taxation, the balance of the
costs referred to in paragraph 5 above shall be paid to the trust ee of
the trust contemplated below . In the event that the trust has not yet
been created, such balance shall be invested in terms of Section 86(4)
of the Legal Practice Act, 28 of 2014, with the relevant financial
institution, for the benefit of the plaintiff, until the trust is created.
7. The fees contemplated in paragraph 5 above, shall be subject to the
limitation set out in par [63] of the judgment.
8. The plaintiff’s attorneys are directed to, within 10 (ten) days from
date of this order, deliver to the court, the plaintiff and the proposed
trustee a full reconciliation in respect of the payment received from
the defendant on 31 July 2023, the interest accrued thereon, the fees
already debited and the fees to be debited in terms of the attorneys’
mandate to date of this order.
9. The plaintiff’s attorneys are directed to pay one half of the balance
due to the plaintiff in respect of the aforesaid reconciliation within 10
(ten) days from date of this order to her and to pay the other half,
together with the interest referred to in paragraph 2 above , once
received, to the trustee of the trust to be created for the benefit of the
plaintiff.
10. It is directed that a trust be created for the benefit of the plaintiff,
which shall be in terms of the draft trust deed annexed hereto as
Annexure “A” and the proposed trustee’s consent annexed as
Annexure “B” and initialled for identification purposes.
11. The proposed trustee is ordered to furnish security to the satisfaction
of the Master of the High Court.
12. It is noted that the plaintiff’s mother has entered into a contingency
fee agreement on behalf of the plaintiff and plaintiff's attorneys in
terms of the Contingency Fees Act.
________________________________________________________________
J U D G M E N T
________________________________________________________________
The matter was heard in open court and the judgment was prepared and
authored by the judge whose name is reflected herein and was handed down
electronically by circulation to the parties’ legal representatives by email and
by uploading it to the electronic file of this matter on Caselines. The date of
handing-down is deemed to be 10 June 2026.
DAVIS, J
Introduction
[1] The plaintiff is Ms M[...]. Her mother, when the plaintiff was still a
minor, had instituted action on h er behalf against the Road Accident Fund (the
RAF) for the recovery of damages suffered by h er as a result of injuries
sustained in a motor vehicle accident which had occurred on 12 March 2017.
The plaintiff was a pedestrian and was 10 years old at the time.
[2] The reason for this judgment is the concern of the court in the delay of
payment to the plaintiff by her attorneys. The matter was initially settled on 31
March 2022, but apparently “finally” settled on 26 January 202 3. The
settlement amount was subsequently paid to and received by the plaintiff’s
attorneys on 31 July 2023.
[3] The plaintiff attained the age of majority on 23 January 2025.
[4] By the time the matter came before me as then Acting Deputy Judge
President, on that part of the daily trial roll allocated to settled matters on 25
February 2026, the plaintiff had only been paid R 50 000.00. This was despite
the fact that her correspondent attorneys had even already debited and collected
their fees from the amount paid by the RAF.
The settlement
[5] Action was instituted against the RAF on 5 July 2018 by the plaintiff’s
mother, acting at the time as aforesaid. The attorneys in Pretoria were VZLR
Inc. They were acting as correspondent attorneys on instructions of Moss &
Associates Inc t/a J Visser Attorneys. The total amount of damages claimed was
R 1 850 000.00
[6] The RAF defended the action and after the exchange of pleadings and
expert notices on behalf of the plaintiff, two pre -trial conferences were held. At
the first pre-trial conference on 12 September 2018 very little was resolved but
at the second pre -trial conference held on 29 March 20 19 it was recorded that
the RAF had made a settlement offer on 30 January 2019. At this conference a
certain attorney Ms M Dixon from VZLR Inc appeared for the plaintiff.
[7] On 14 June 2021, the RAF made a further settlement offer. This was in
the amount of R 1 610 993.88, after a 10% apportionment.
[8] On 10 March 2022, the RAF increased its offer to R 1 650 000.00 (also
after 10% apportionment). Ms Dixon accepted this offer on 31 March 2022 by
responding as follows: “ Thank you for the offer below. Please find attached
hereto the following: 1. Draft order – makes provision for a trust as suggested
by the experts; 2 Consent; 3. Deed of trust…. you are welcome to forward a
discharge form for signature”.
[9] It appears that the consent referred to was one obtained by an attorney,
Mr Van der Merwe . The attorney stated in his affidavit deposed to on 27
October 2021 in Hartswater, which affidavit was included in the plaintiff’s
“settlement bundle” presented to court, that he was practising at J Visser
Attorneys in Hartswater and that he had perused an offer made by the RAF on
27 October 2021. He had evaluated the offer and considered it fair and
reasonable and corresponding to the medico-legal reports obtained.
[10] Mr Van der Merwe had advised the plaintiff’s mother (who was then the
representative plaintiff) of the reasonableness of the offer which would be
contained in a draft order. She, in turn, by way of a separate affidavit deposed to
by her also on 27 October 2021 in Hartswater, consented to the offer. Neither
the offer nor the draft order referred to by Van der Merwe in his affidavit were
presented to the court.
[11] The RAF subsequently made a formal offer of settlement on one of its
pre-printed standard forms on 24 January 202 3, repeating the offer of R
1 650 000.00 (after a 10% apportionment) which had already been accepted the
previous year . This repeated offer was again accepted on behalf of “the
claimant” by Ms M Dixon of VZLR Inc on 26 January 2023 by the completion
of the acceptance part of the form. The form also contains the wording: “ I
understand the meaning and extent of this offer and acceptance and confirm
that it records the full and final agreement between the RAF and me. The RAF
is discharged from liability pertaining to the loss suffered in the
abovementioned accident…” The offer included payment of the taxed or agreed
party and party costs, on the appropriate scale.
[12] As aforementioned, hereafter the RAF paid the agreed amount to VZLR
Inc on 31 July 2023. The obligations of the RAF in terms of the settlement, save
for costs, were thereby discharged.
The delay
[13] It is immediately apparent that there is a substantial delay between the
date of payment of the settlement amount and when this matter came before
court for purposes of consideration of the protection of the proceeds of that
payment. This delay commenced during a period of time when the plaintiff was
still a minor and this court her upper guardian. To the prejudice of the plaintiff,
the delay denied the court the opportunity to exercise its upper guardianship.
[14] After the initial hearing of the matter by me on 25 February 2026, I stood
the matter down twice, first to 10 March 2026 and then to 19 March 2026. I also
issued the following directive: “ Both the instructing and the correspondent
attorneys are directed to furnish evidence to this court on 19 March 2026
concerning the delay in the matter since the action has settled in 202 2 and the
payment of fees on 31 July 2023 and why: 1)the attorneys should not be
deprived of fees; 2) the attorneys not be directed to pay de bonis propriis some
of the disbursements of the action and 3)why a trust is necessary for a major
and on what basis the attorneys obtained instructions to create a trust. “
[15] As part of the responses to the directive , attorney Ms Sebonka from
VZLR Inc deposed to an affidavit wherein she stated that she only became
involved with the plaintiff’s file from August 2025. She therefore had no part
in the pr eceding steps which gave rise to this court ’s concerns. Apart from
other detail in her affidavit, Ms Sebonka confirmed the following in respect of
the payment by the RAF: “Around July 2023 capital payment was received from
the Road Accident Fund, statements with payment breakdown (interim fees to be
deducted and disbursements to be paid) was sent to Moss Inc and upon their
instructions and approval thereof, we proceeded to make payment to them”.
[16] Ms Sebonka in her affidavit referred to above, with reference to email
correspondence between her predecessor and various officials at the RAF,
stated that since the date of the settlement in March 2022 the attorneys have
been struggling to obtain a confirmation letter from the RAF. In addition, a very
been struggling to obtain a confirmation letter from the RAF. In addition, a very
convoluted exchange of opinions ensued between the predecessor and the RAF
as to whether a curator should replace the plaintiff’s mother and, if so whether a
separate application would be necessary, alternatively whether the proceeds of
the claim should be protected by the creation of trust.
[17] The attorneys blame the RAF for the impasse, labelling the reason for the
delay in their affidavits the RAF’s “ procedural fork (Trust v Rule 5 7)” but they
could not explain, neither in their affidavits nor by argument addressed on their
behalf what role the RAF still had to play in this regard after the payment of the
agreed capital amount and the accepted offer of costs. The RAF, while it had
engaged with the attorneys by way of email exchanges, never made the payment
of the claim dependent on the protection of the funds or an agreement as to the
nature of such protection. Even if it had, such condition was overtaken by the
actual payment.
[18] It was explained to the court that on 25 April 2022 the instructing
attorneys instructed Ms Sebonka’s predecessor to proceed with a curatorship
application. Such an application was served on the RAF on 10 November 2022.
Ms Sebonka stated in her affidavit that “… between November 2022 – 19
February 2025: Various follow -ups were made at court for a hearing date ”,
allegedly to no avail. Apparently the application was eventually set down for
hearing on 26 May 2025 but removed from the roll by the attorneys. The reason
given in Ms Sebonka’s affidavit was that the plaintiff had since attained the age
of majority. Despite this having happened on 23 January 2025, a notice of
substitution was only filed on 9 March 2026, that is a day before the first
standing down by this court of the matter to 10 March 2026.
[19] In her affidavit Ms Sebonka submitted that the further delay in the matter
was that the attorneys could not agree with the RAF what the terms of the trust
exactly should be and that they sought to resolve this before sanctioning the
trust by way of a court order.
[20] In a separate affidavit, attorney Ms Small from Moss & Associates Inc t/a
J Visser Attorneys in Ran dburg, Johannesburg, described the “phases of
litigation” to the court. She confirmed that the matter was settled on 31 March
2022 and that she had then instructed VZLR Inc to “ proceed with a draft order
including a trust to be established”. After some email interaction with the RAF,
she instructed VZLR Inc during April 2022 to proceed with an applica tion for a
curator ad litem, which she stated “ was not standard practice”. She stated that
thereafter, the attorneys could only obtain a date on the unopposed motion court
in May 2025. She had thereafter been advised by VZLR Inc that such an
application would no longer be necessary due to the plaintiff having attained the
age of majority.
[21] The attorney then proceeded in her affidavit to jump ahead to the end of
December 2025, when the plaintiff contacted their offices “ … to inform me that
the plaintiff’s mother (previously the representative of the plaintiff …) had lost
her employment and required financial assistance.” . The attorney explained
what she then did as follows: “ I reached out to the trustee, informing them (in
anticipation of their appointment) to advise that the family requiring this
assistance and ultimately a lump sum was made to assist in the interim and the
family had been updated on the proceedings and attempts to obtain a
confirmation letter from the Road Accident Fund”.
[22] The attorney then contended that the RAF had “ softened its stance” after
the plaintiff had attained the age of majority, which enabled the attorneys to
agree on the terms of the trust deed. Thereafter a “confirmation letter” was
obtained and the matter was enrolled on the settlement roll. Ms Small contended
that “the reason for not applying for a settlement roll date prior is owing to the
previous directive requiring a draft order, accompanying practice note and a
previous directive requiring a draft order, accompanying practice note and a
confirmation letter from the defendant confirming the draft order can be made
an order of court”.
[23] In December 2026 VZLR indeed confirmed to the RAF that payment had
already been made and requested a confirmation letter “ in order to finalize the
matter.
[24] Further email correspondence resulted in a first “confirmation letter”
from the RAF . It was contained in the “settlement bundle” which was placed
before court and was dated 28 January 2026. It was from the litigation officer
with whom the plaintiff’s attorneys had corresponded during 20 22 already. The
letter reads, in its totality, as follows; “ We refer to the above -mentioned matter.
The Defendant is to pay the plaintiff’s attorneys the sum of R 1 650,00.00 (ONE
MILLION SIX HUNDRED FIFTY THOUSAND) in respect of the Plaintiff’s
claim for damages and loss of earnings. Your sincerely…”. This letter was
uploaded on 12 February 2026.
[25] During the course of the hearing of the matter, no less than three draft
orders were presented to the court, including a second version of the
abovementioned confirmation letter, still dated 28 January 2026. This letter was
uploaded on 9 March 2026 and its contents now read as follows: “The
Defendant is to pay the Plaintiff ’s attorneys the sum of R 1 650,000.00 (ONE
MILLION SIX HUNDRED AND FIFTY THOUSAND), post apportionment, in
respect of the Plaintiff’s claim for general damages and loss of earnings as per
the amended draft order. We have perused the contents of the court order and
confirm that same is in order and an order of court can be made (sic)”.
[26] On 19 March 2026 Ms Small deposed to a supplementary affidavit from
which more of the chronology of the matter, including the involvement of the
instructing attorneys, could be pieced together. The first consultation with the
plaintiff’s mother regarding settlement of the matter took place on 8 October
2021. This was with Mr Van der Merwe. It was apparently pursuant to this
consultation that the plaintiff’s mother deposed to the consent affidavit referred
to in paragraph 10 above. No particularity of the date of the offer discussed, nor
the amount thereof is reflected in the affidavit.
[27] On 2 February 2022, when the plaintiff’s mother visited the instructing
attorneys’ Kimberley offices however, she was advised that the attorneys were
awaiting a revised offer.
[28] On 16 March 2022 the plaintiff’s mother was contacted by the instructing
attorney’s Kimberley office “… and the revised offer was explained as well as
the pending curator appointment and incorporation of a trust along with
reasons laid out by the experts. Further to this the anticipated delay was
explained…”.
[29] On 7 July 2022 the plaintiff’s mother was contacted to sign an affidavit
in support of an application for the appointment of a curator ad litem, which she
subsequently did. I shall refer to the contents of that affidavit later.
[30] Hereafter the attorney got confused and alleged that the plaintiff’s mother
was contacted on 18 August 2022 “… when payment was received… ”. This
could only have been in August 2023, but nevertheless, the plaintiff was
apparently contacted by “ …a separate department [of the attorney’s firm] who
makes contact with clients… ” to inform them of payments. She was allegedly
also informed that a trust still needs to be created and it was recommended that
“… she allow for a few months for discussion between the parties…”.
[31] In January 2023 the plaintiff’s mother called for an update and “… it was
explained that we now await for a date from Court for the application and that
ultimately we would not be able to obtain a confirmation letter…which is
needed to obtain a court order should we not follow these steps first…”.
[32] The attorney in her affidavit, ignoring the confusion referred to above and
the conversations which would have taken after receipt of the funds, stated in
her affidavit that “[B]etween July and August 2023 we tried calling Ms M[...]
[the plaintiff’s mother] and could not get a hold of her. Eventually on 4
September 2023 we were able to reach Ms R M[...] and she confirmed having
phone trouble ...”. It was alleged that the family reported doing well and that
they would be patient.
[33] The patience must have run out as the plaintiff’s mother visited the
attorney’s Kimberley offices on 7 February 2024 and gave a new cellphone
number. The attorney stated that on 16 February 2024 she telephoned the
plaintiff’s mother to explain that the delays were “very frustrating” but that she
seems “to be making some progress” with the RAF.
[34] After attempts by the attorney on 24 June 2024, the plaintiff’s mother
contacted the attorney on 13 August 2024. The attorney says that she then
explained that she needed to speak with the plaintiff herself regarding the
creation of a trust, for which purpose the attorney was amending the draft order.
[35] The next interaction was in February 2025 when the attorney said she
“requested documents” and that the plaintiff advised the attorney to speak with
her mother. On 11 March 2025, however the plaintiff herself requested an
update. The attorney said that she informed the plaintiff “that we await the
confirmation letter from the Road Accident Fund to have the matter placed on
the settlement roll and will reach out as soon as we received same and apply for
the date”.
[36] The chronology explained by the attorney is then silent regarding the
lapse of the rest of 2025, save to state that during August 2025 a new attorney
had been appointed in the correspondent attorney’s office (Ms Sebonka referred
to earlier) and that “ we proceeded to follow up on the confirmation letter ”. It is
no wonder that on 9 December 2025 the plaintiff and her family started
contacting the attorney, stating that they were in dire financial straits and still
awaiting payment. This finally resulted in a meeting on 2 March 2026 with the
plaintiff, her minor son, her mother, two family members, the attorney Ms
Small and the proposed trustee. The attorney stated that this meeting was to
“…update the family members on the recent happenings…”.
[37] At the meeting the attorney attempted to determine “the family’s needs”.
The plaintiff wanted R 600 000.00 from the proceeds of the claim to meet with
family needs and to fix the roof of their house. Based on the fact that some of
the money would be spent paying of some of the mother’s debts, the attorney
“ultimately agreed” with the family that only R 50 000.00 would be paid “in the
interim”, while a trust would be created, to which the plaintiff and the family
agreed.
[38] The principal cause for the delay therefore, apart from long periods of
mere inactivity, appears principally the instructing attorney’s belief that, despite
a final settlement having been reached and despite that settlement even having
been fulfilled, she still needed a confirmation letter from the RAF and its
consent as to how she needs to protect the proceeds of such payment in the
interest of her client.
The protection of the proceeds of the claim (the “funds”)
[39] The position regarding the protection of funds arising from claims agai nst
the RAF in respect of minors and incapacitated persons have definitively been
dealt with by a full court of the Division in In re: Protection of Certain
Personal Injury Awards (Pretoria Society of Advocates and Others as Amici
Curiae)1. Although only reported later in 2022, the judgment in this matter was
handed down on 20 May 2022.
[40] The result was that the manner in which matters of this nature has to be
approached, was well settled by the time the plaintiff’s attorneys signed the
formal settlement document on 26 January 2023. At the very latest, f rom that
time, the attorneys should have taken steps to determine whether the proceeds
of the settlement should be protected and, if so, in what fashion.
[41] The plaintiff suffered both orthopaedic and neurological injuries. The
orthopaedic injuries were a C 7 transverse process fracture, resulting in some
spinal asymmetry and neck pain as well as a tibia/fibula fracture which later
healed but resulted in some range of motion restriction. Her head injury resulted
in a decreased Glasgow -coma scale score (10/15) on admission to the hospital
post-accident, which was later diagnosed as a severe traumatic brain injury,
resulting in some cognitive impairment.
[42] The expert reports obtained on behalf of the plaintiff were not uniform in
their opinions as to the extent of the brain injury or its sequelae . In heads of
argument submitted to the court, reliance was placed on selective extracts of
these reports. Reference was made to the report of the neurologist and the
educational psychologist. The former opined that “ …it would seem fair
that…the funds be protected with the aid of a curator …”. The latter was of the
opinion that “…the funds…be protected and managed by a trust to be available
for N[...] during her lifespan, in order to address issues as they arise during
different developmental stages. The latter is recommended as N[...] is a
vulnerable minor child with permanent damage … N[...]’s functioning indicates
that she is vulnerable to exploitation by others ”. These opinions were expressed
1 2022 (6) SA 446 (GP).
in reports resulting from assessments done as long ago as on 16 April 2019 and
30 July 2019 respectively, when the plaintiff was 12 years old.
[43] In a similarly aged report, dated 29 March 2019, the neuropsychologist
expressed her view that, as “ N[...] is a minor, funds to be awarded should be
adequately protected”.
[44] In the full court decision referred to above 2, legal practitioners acting for
claimants in personal injury matters were reminded that protection of funds
were necessary in respect of persons who were not capable of handling their
own affairs and that such persons primarily fell into two categories, namely
minors and those declared to be incapable by way of the process provided for in
Rule 573. The two manners of protection of funds are by way of the creation of
a trust or by way of the appointment of a curator bonis.
[45] The full court also referred to a third category of persons 4, being those
with “partial incapacity". Th e full court found, after consideration of
submissions made by the Master, as follows: “ In reality, it is not a rarity,
particularly in RAF matters, for medical experts to recommend protection of
funds despite the fact that the plaintiff does not meet the threshold of
‘incapacity’ outlined in Rule 57. In cases like this, the requirement of a curator
bonis under either subrules 57(10) or (13) are not met…the obvious mechanism
for the protection of funds in these cases is through the mechanism of a trust .
The trust mechanism also gives the court the flexibility to tailor make the
powers of the trustee so as to avoid infringing on the rights of the plaintiff more
than is necessary”5.
2 Full court judgment at paras 3, 136 and 161.
3 Rule 57 provides that a high court may, on application to it and upon consideration of medical evidence ,
declare a person incapable of managing her or his own affairs and appoint someone else, a curator bonis, to do
so.
4 Full court judgment at par 118.
5 Full court judgment at paras 119 and 120.
[46] I find that this is such a case. My reasons for this finding start with the
opinion of the orthopaedic surgeon. He had already determined seven years ago
that the plaintiff had, orthopaedically, made much progress since the accident.
[47] Similarly, although the head injury was traumatic, with grade 2
subarachnoid haemorrhage, it required no more than conservative treatment and
analgesics and left the plaintiff cognitively intact. The neuropsychologist’s
opinion expressed in favour of protection, was based on the plaintiff’s status of
being a minor at the time. Similarly, even though the educational psychologist
opined there was a decrease in the plaintiff’s post -accident learning
performance, her opinion regarding protection of funds was based on the
plaintiff’s circumstances at the time, being a minor learner. She found, for
example the plaintiff to be “ Emotionally susceptible [and] at risk to cope with
stress and anxiety related to second school studies…”.
[48] Currently, the plaintiff is no longer a minor and she now also has a child
of her own. During the meeting with the attorney on 2 March 2026 she
indicated that she previously wanted to study but she has been convinced by
family members to start an own business. The instructing attorney interpreted
this and the plaintiff’s reference to her mother’s debts and the family’s leaking
roof, as proof of impulsiveness and susceptibility to influence on the part of the
plaintiff. The attorney however also indicated that, to the contrary, after having
initially requested a large lump -sum payment, the plaintiff, after separate
consultation with family members, reduced this request by more than 90%. This
does not appear to me to evince impulsiveness or a total incapacity. Apart from
the fact that the court is concerned about the fact that this appears to be the first
comprehensive consultation with the plaintiff since the settl ement of her matter
or at least since she has become a m ajor, her needs, prospects and vocalisation
or at least since she has become a m ajor, her needs, prospects and vocalisation
of her circumstances might have be en completely different had she received
funds which would have enabled her to study almost four years ago.
[49] In an attempt to update the expert reports, the attorney arranged a
telephonic consultation between counsel and the educational psychologist who
had produced a report almost seven years ago . The court was thereupon
furnished with a single page email from the educational psychologist dated 9
March 2026, simply stating the following: “ The client sustained a severe
traumatic brain injury . Cognitive functioning had various problems (sic). This
client is a vulnerable individual and therefore lifelong management and
protection is recommended” . In the absence of any indication of a revision of
documents, examination of the plaintiff or even a discussion with her or any
other primary source of facts , this opinion is without factual foundation or
proper reasoning and therefore discarded6.
[50] Having concluded that the plaintiff is “partially incapacitated” and based
on the instructions and information obtained by the attorney from the plaintiff
herself and her mother, whereby they had agreed to the creation of a trust, I find
that at least part of the funds should be so protected. Having regard to the
plaintiff’s obvious immediate need for funds, the use of which she has been
denied for many years, I determine however that only half of the funds should
be placed in the proposed trust and the rest be paid out to her immediately.
[51] I currently do not know the full extent of the remaining funds, nor has
either the plaintiff or the court been favoured with any reconciliation of the
funds received, fees debited, disbursements paid or accrued interest. In order not
to prejudice the plaintiff by further delays, payment should be made
immediately, but the attorneys will still have to answer to the court in this
regard. I shall, in the order of this court, include a direction for the furnishing of
such a reconciliation, which the court may direct in terms of its inherent
oversight jurisdiction over its officers. A proper discharge of their obligations
oversight jurisdiction over its officers. A proper discharge of their obligations
by the attorneys should not result in a need for any further steps being required.
6 See: Masstores (Pty) Ltd v Pick ’n Pay Retailers (Pty) Ltd 2016 (2) SA 586 (SCA) at par 15 and Road Accident
Appeal Board v Gouws [2018] 1 All SA 701 (SCA).
Final evaluation and costs
[52] As already indicated above, the attorneys have, on 9 March 2026, secured
a letter from the RAF confirming that the contents of a draft order submitted to
it, may be made an order of court. The court is therefore bound to give effect to
this agreement, but only insofar as it pertains to the terms relating to the
furnishing of an undertaking in terms of section 17(4)(a) of the Road Accident
Fund Act7 and the permissible costs aspects included therein (which were rather
extensive and partially extended the previous agreement relating to costs on a
party and party scale to one partially on the scale as between attorney and
client).
[53] Despite the agreement to the contents of the draft order, its contents were
still incorrect insofar as it purports to order the RAF to pay what it has already
paid, refers to the plaintiff as a patient and contains discrepancies between the
terms of the proposed trust and the draft trust deed annexed thereto as well as
further grammatical incongruities. I determine that the correction of these
discrepancies fall within the ambit of what a court is entitled to do to make the
order “proper and competent” , without derogating from the agreement
otherwise reached with the RAF.8
[54] There is, however one further aspect which requires attention and that is
the manner in which the plaintiff’s interests were served after the matter had
become settled. Even in high volume legal practices such as those of the
plaintiff’s attorneys, the services rendered by attorneys to vulnerable clients
such as minors and those incapable of managing their own affairs, should
receive individualised attention in order to serve the needs of those clients.
7 56 of 1996.
8 Eke v Parsons 2016 (3) SA 37 (CC) read with RAF v Taylor and related matters 2023 (5) SA 147 (SCA) and
Mafisa v RAF 2024 (4) SA 426 (CC).
[55] Of particular concern in this matter was not only the delay in obtaining
finality, but also the i ncurrence of fruitless expenditure and the recovery of
costs in respect thereof. Once the plaintiff’s claim had been paid, there existed
no further lis between her and the RAF. The issue of whether the funds had to
be protected and, if so, how, was a matter initially between her mother and the
attorneys and subsequently between herself and the attorneys.
[56] An example of the lack of attention to the detail of the plaintiff’s case and
which caused some delay and certainly fruitless expenditure, was the aborted
application for a curator ad litem. It was drafted and signed on 15 July 2022,
that is after the settlement had been reached, but before payment by the RAF. It
would have been supported by a founding affidavit deposed to by the plaintiff’s
mother, at the behest of the attorneys and even included a prayer in the notice of
motion that the curator ad litem would be authorised to institute and prosecute
an action against the RAF, which action had by then already been concluded.
[57] In the affidavit drafted by the attorneys for her, Mrs M[...] stated that the
plaintiff would still be a minor when the matter went to trial and that it was
“crucial” that a curator be appointed “…as the minor cannot prosecute his claim
against the defendant in his personal capacity” . Again, this statement was not
correct, as the matter had already been settled.
[58] It was also submitted by Mrs M[...] in the affidavit that the proposed
curator ad litem would advise on the available options for the creation of a trust
or the appointment of a curator bonis. I find this to be a strange submission as
the instructing attorney had in her affidavit to this court expressly confirmed
that she had already taken instructions from Mrs M[...] to establish a trust. This
was after receipt of the revised offer from the RAF on 16 March 2022 after
having received instructions from Mrs M[...] to accept the offer.
[59] Although the initially proposed curator ad litem had furnished her consent
on 22 June 2022, the correspondent attorney deposed to a supplementary
affidavit to this effect for purposes of the appointment of the curator, on 20
March 2025 with a fresh consent, dated 5 March 2025 . That was when the
attorneys still intended to proceed with that application, then enrolled for
hearing on 25 April 2025.
[60] It is now common cause that the application for the appointment for a
curator ad litem was never proceeded with. The attorneys blame the RAF for
this but, apart from the fact that the RAF had fallen out of the picture upon
settlement, a proper scrutiny of the correspondence reveals that the RAF’s only
stance was that once there was an intention to remove any powers from the
mother as the plaintiff’s biological mother and then natural guardian and place it
in the hand s of another person, be it a trustee or a curator, the RAF could not
simply agree thereto and that a court needed to be approached. The attorneys
have failed to do so until the minor had reached the age of majority.
[61] In addition to the above and in yet another unnecessary procedure, the
plaintiff’s attorneys had launched an application late in 2021 to strike the RAF’s
defence on the basis that it had failed to attend a scheduled pre -trial conference.
After two previous pre-trial conference, it is not clear why such a step may have
been justified at the time, but what is more astounding is that the attorneys
proceeded to request and obtain an order from this court, per Ndlovokhane AJ
on 13 April 2022, compelling the RAF to comply with a Rule 37(2) notice and
attend a pre -trial conference within 10 days after service of the order. By that
time, the action had already been settled and no further trial proceedings were
contemplated. Significantly, this unnecessary order did not feature in the
affidavits supplied by the attorneys to this court.
[62] The whole struggle to obtain a “confirmation letter” after that which such
a letter would have confirmed, namely a settlement of the matter, became an
unnecessary and fruitless exercise after payment of the settlement amount had
already taken place.
[63] In the exercise of this court’s inherent oversight role over officers of the
court, I find that the attorneys are not entitled to recover any fees from either
their clients or the RAF for the fruitless steps taken since 31 March 2022 until
the eventual placing of this matter before court on the settlement roll, last -
mentioned being the steps since the set down was served on 18 February 2026
and thereafter and which may include the costs of the drafting of the trust deed.
Order
[64] In the premises, it is ordered as follows:
1. It is noted that the defendant has agreed to pay 90% (Ninety percent)
of the plaintiff's damages in the amount of R 1 650,000.00 (One
Million Six Hundred and Fifty Thousand Rand and Zero Cents) after
apportionment and that this agreed amount has already been paid on
31 July 2023.
2. Since the payment was made later than the 180 days after settlement
had been reached, the defendant is ordered to pay interest on the
amount mentioned in par 1 above at the prescribed rate from 1
September 2022 until 31 July 2023.
3. The defendant is ordered to furnish the trustee appointed in respect of
a trust to be created for the benefit of the plaintiff with an undertaking
in terms of Section 17(4)(a) of the Road Accident Fund Act 56 of
1996, limited to 90% for the costs of the future accommodation of the
plaintiff in a hospital or nursing home or the treatment of or the
rendering of a service or the supplying of goods (of a medical and
non-medical nature) to the plaintiff arising out of injuries sustained by
her in a motor vehicle collision on 12 March 2017, in terms of which
undertaking the defendant will be obliged to compensate the trustee in
respect of the said costs after the costs have been incurred by either
the plaintiff or by the trustee or by any party on behalf of the plaintiff
and on proof thereof. The defendant is ordered to pay the reasonable
travelling costs and accommodation for the plaintiff and any caretaker
for her to and from the location where she is to receive treatment
covered under the undertaking.
4. By agreement and w ithout derogating from the generality of the
foregoing, the undertaking shall include the reasonable costs of the
formation of the trust contemplated in this order for the benefit of the
plaintiff and the costs of administration of the said trust, including the
costs attendant upon the provision of security by the trustee, and
auditing and/or accounting services as set out in the Trust Deed.
5. By agreement the defendant is ordered to pay the plaintiff's taxed or
agreed party and party costs on the High Court scale, for the
instructing and correspondent attorneys, which costs may include, but
not be limited to the following:
5.1 The fees of counsel on scale B, including a day fee in respect of
appearance at the settlement roll.
5.2 The cost of obtaining all expert medico legal reports and any
other reports of an expert nature which were furnished to the
defendant;
5.3 The cost of obtaining documentation/evidence, scans, considered
by the expert(s) to finalise their reports;
5.4 The reasonable taxable reservation, qualifying and preparation
fees of all experts whose report(s) were provided to the
defendant;
5.5 The reasonable cost of consultation fees between the plaintiff's
experts and the plaintiff's legal teams regarding the matter;
5.6 The reasonable cost of one consultation between the plaintiff and
the plaintiff's legal team to consider the offer to settle;
5.7 The reasonable taxable accommodation and transportation costs
(including toll and e-toll charges) incurred on behalf of or by the
plaintiff (including one person having to accompany her) in
attending medico legal consultations with all experts and
consultations with the legal representatives;
5.8 The reasonable cost for an interpreter's at the medico legal
appointments for translation of information;
5.9 The above -mentioned payment with regard to costs shall be
subject to the following conditions:
5.9.1 The plaintiff shall, in the event that costs are not agreed,
serve the notice of taxation on the defendant's attorney of
record; and
5.9.2 The plaintiff shall allow the defendant 180 calendar days
to make payment of the taxed costs;
5.9.3 The defendant is to request and load payment within 14
(fourteen) calendar days from date of settlement/taxation
of the bill of cost, with proof of same to be sent to the
plaintiff’s attorneys;
5.10 For purposes of the payment of interest and costs, t he plaintiff's
Attorney's Trust account details are as follows:
ACCOUNT HOLDER: VZLR INC
BRANCH: ABSA BUSINESS BANK
HILLCREST
BRANCH CODE: 632005
TYPE OF ACCOUNT: TRUST ACCOUNT
ACCOUNT NUMBER: 3[...]
5.11 In the event of default on the above payment, interest shall
accrue on such outstanding amount s at the prescribed rate
calculated from the 15th day of the date of this order in respect of
interest and from the 15 th day of settlement/taxation of the bill of
costs until the date of payment.
6. After deduction of the legal costs consultant’s fee for drawing the bill
of costs and attending to its settlement or taxation, the balance of the
costs referred to in paragraph 5 above shall be paid to the trustee of
the trust anticipated below. In the event that the trust has not yet been
created, such balance shall be invested in terms of Section 86(4) of
the Legal Practice Act, 28 of 2014, with the relevant financial
institution, for the benefit of the plaintiff, until the trust is created.
7. The fees contemplated in paragraph 5 above, shall be subject to the
limitation set out in par [63] of the judgment.
8. The plaintiff’s attorneys are directed to, within 10 (ten) days from
date of this order, deliver to the court, the plaintiff and the proposed
trustee a full reconciliation in respect of the payment received from
the defendant on 31 July 2023, the interest accrued thereon, the fees
already debited and the fees to be debited in terms of the attorneys’
mandate to date of this order.
9. The plaintiff’s attorneys are directed to pay one half of the balance
due to the plaintiff in respect of the aforesaid reconciliation within 10
(ten) days from date of this order and to pay the other half, together
with the interest referred to in paragraph 2 above , once received, to
the trustee of the trust to be created for the benefit of the plaintiff.
10. It is directed that a t rust be created for the benefit of the plaintiff ,
which shall be in terms of the draft trust deed annexed hereto as
Annexure “A” and the proposed trustee’s consent annexed as
Annexure “B” and initialled for identification purposes.
11. The proposed trustee is ordered to furnish security to the satisfaction
of the Master of the High Court.
12. It is noted that the plaintiff’s mother has entered into a contingency
fee agreement on behalf of the plaintiff and plaintiff's attorneys in
terms of the Contingency Fees Act.
______________________
N DAVIS
Judge of the High Court
Gauteng Division, Pretoria
Date of Hearing: 19 March 2026
Judgment delivered: 11 June 2026
APPEARANCES:
For the Plaintiff: Adv L Mastoroudes
Attorney for the Plaintiff: VZLR Attorneys, Pretoria
For the Defendant: No appearance