in the high court of south africa (north gauteng high ... · capacity as mother and guardian of her...
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IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT, PRETORIA)
CASE NO: 2010/25934
DATE: 27 NOVEMBER 2013 IN THE MATTER BETWEEN: LOCHNER, ILZE
(obo MEGAN JANSEN)…………………………………………………………..PLAINTIFF
AND
MEC FOR HEALTH AND SOCIAL DEVELOPMENT,
MPUMALANGA………………………………………………………………..DEFENDANT
JUDGMENT
TOLMAY, J:
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INTRODUCTION
[1] Plaintiff instituted action against the defendant in her personal and representative
capacity as mother and guardian of her minor daughter Megan, who was born on
16 January 2007. The premature birth of Megan resulted in a condition known as
Retinopathy of Prematurity (ROP), which was not diagnosed and treated by the
Witbank Hospital in Emalahleni, Mpumalanga, this caused Megan’s blindness.
The defendant accepted liability for medical negligence at the previous trial date.
The plaintiff and Megan’s father are not married, they are engaged and have been
living together since before Megan’s birth.
[2] The plaintiff claimed compensation for damages caused by the defendant’s
negligence under the following headings:
1. Fair compensation for past expenditure and caregiving;
2. Future hospital and related expenditure;
3. Loss of income and earning capacity;
4. General damages, and
5. Costs of protection of the award.
ASPECTS SETTLED BETWEEN THE PARTIES
[3] Although at the outset of the trial most issues were placed in dispute certain
concessions were made as the trial progressed.
3.1 With reference to past caregiving, compensation to Megan’s maternal
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grandmother and other costs of 2013 was agreed at R88 000-00, leaving in
dispute the question of fair compensation of Megan’s parents and broader
family for their caregiving of her over the period prior to January 2013.
3.2 As far as future hospital, medical and related expenditure is concerned, all
items were agreed save for psychotherapy and occupational therapy, i.e:
(a) Future ophthalmic care was agreed at R779 625-00;
(b) Psycho-educative therapy was agreed at R103 948-00;
(c) Physiotherapy (other than physiotherapy as a result of fractures and
falls and osteoporosis) was agreed at R100 000-00;
(d) Speech therapy was agreed at R130 310*00;
(e) Provisions for fractures, falls and osteoporosis was agreed at R200
000-00; and
(f) Additional accommodation costs was agreed at R150 000-00.
3.3 General damages was settled at the amount of R1 200 000-00.
3.4 The parties also agreed that the award needs protection by way of the
creation of a trust with a professional trustee who will furnish security,
and that the costs will be met by way of a 7.5% add on to the capital
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amount of the final award for future hospital, medical and related
expenses, loss of income and earning capacity and general damages.
THE FOLLOWING ISSUES REMAINED IN DISPUTE
[4] (a) The question of fair compensation for caregiving over the period from the
discovery of Megan’s blindness up to and including December 2012;
(b) Psychotherapy;
(c) Occupational therapy, despite the fact that the occupational therapists
found large areas of agreement; and
(d) Loss of income and earning capacity.
[5] The parties agreed that Mr Whittaker’s actuarial calculations were correct, thus
obviating the need for him to testify, and enabling the parties to lead evidence on
the actuarial calculations done by him.
WITNESSESS
[6] Plaintiff called Megan’s father, Mr Johnny Jansen, the clinical psychologist, Dr
Truter, the industrial psychologist Mr Linde, the blind achiever and adventurer, Mr
Wagner and the occupational therapist, Mrs Greeff.
[7] The defendant called the occupational therapist, Mrs Vlok and the industrial
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psychologist, Mr Prinsloo.
[8] I will deal with the evidence of the witnesses under the appropriate headings.
GENERAL PRINCIPLES IN PERSONAL INJURY MATTERS
[9] Before dealing with the different claims it is appropriate to set out some of the
general principles applicable to personal injury matters. I will also deal in more
particularity with some of the principles under the different headings.
[10] In the matter of Van Der Merwe v Premier Mpumalangai, a case with many
similarities to this one, the court dealt comprehensively with the principles
applicable to the calculation of compensation. In that case the plaintiff was, as in
this instance, the parent of a girl, Rochelle, who was at the time of the trial 12
years old and who suffered from the same condition (ROP) as Megan in this
case. As a result of that I will refer to that matter and the findings made therein
wherever it is appropriate
[11] The following was said pertaining to the calculation of compensation in the matter
of Van Der Merweii:
“[9] Die basiese beginsel onderliggend tot ‘n toekenning van skadevergoeding in terme
van die Lex Aquiliae is dat die vergoeding beraam moet word met die oog daarop
om die eiseres, sover moontlik, in die posisie te plaas waarin sy sou gewees het
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indien Rochelle van geboorte af nie blind nie, maar siende was. By die
berekening van skade moet nie net daadwerklike positiewe verliese (damnum
mergens) maar ook negatiewe verliese in die aard van ‘n vermoe of potensiaal
wat Rocehelle verhoed is om te bereik, (lucrum cessans), in aanmerking geneem
word vir sover dit voortspruit uit die delik. Toelating moet gemaak word vir die feit
dat toekomstige verliese noodwendig ‘n spekulatiewe element betrek by die
beoordeling van wat redelike skadevergoeding is. Ofskoon skade op ‘n oorwig van
waarskynlikhede bewys moet word, vereis geregtigheid dat ‘n
gebeurlikhedstoelating gemaak moet word selfs vir blote moontlikhede van sekere
vorme van skade of verlies. Die feit dat dit moeilik is om in ‘n bepaalde geval ‘n
bed rag skadevergoeding te bepaal,vereis steeds dat die hof moet poog om op
die beskikbare getuienis ‘n redelike beraming te maak. Dit beteken egter nie dat
waar daar ‘n aantal moontlikhede is, die hof die moontlikheid wat die minste
gunstig is vir die eiseres moet kies omdat sy die bewyslas dra en nie kon bewys
dat ‘n meer gunstige moontlikheid toegepas behoort te word nie’’.
[12] From the aforesaid it transpires, firstly that Megan must be placed, as far as
possible in the position she would have been if the incident did not occur.
Secondly it must be taken into consideration that, as far as future losses are
concerned, an element of speculation is unavoidable in order to determine what
would constitute reasonable compensation for damages suffered. The court is
required to make an estimate of reasonable compensation on the available
evidence before it.
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[13] Contingency additions and deductions form part of the process one follows when
determining the appropriate compensation. In the matter of Van Der Merwe supra
Claassens J, comprehensively set out the principles pertaining to contingency
deductions. The following was inter alia stated in this regardiii:
“[11] Ten opsigte van die berekening van ‘n eis vir die verlies van verdienste of
verdienvermoe word daar, afhangende van die metode van berekening
wat gebruik word, gebruiklik voorsiening gemaak vir sekere faktore en
gebeurlikhede deur middel van ‘n gebeurlikheidsaftrekking. Gebeurlikhede
is beskryf as:
“Hazards that normally beset the lives and circumsntaces of
ordinary people”.
In Shield Insurance Co Ltd v Booysen 1979(3) SA 953 (A) op 965G het Trollip
AR gese dat gebeurlikhede: “Involves by its very nature, a process of subjective
impression or estimation rather than objective calculation.
[12] Die toepassing van ‘n gebeurlikheidsaftrekking is gebruiklike praktyk ten opsigte
van alle eise vir ‘n verlies van verdienste, alternatiewelik verdiensvermoe waar daar
gebruik gemaak word van die berekeningsmetode waarvolgens ‘n eiser/es se pre- en
postmorbiede verdienpotensiaal op ‘n wiskundige of aktuariele basis bereken word in
teenstelling met ‘n algemene lompsom. Daarteenoor is gebeurlikheidsaftrekking by eise
vir toekomstige hospitaal-, mediese- en aanverwante kostes en eise vir
hulpmiddels,assistente, huisverbeterings, ens nie noodwendig gebruiklik nie. Soms is dit
glad nie van pas om ‘n gebeurlikheidsaftrekking ten opsigte van hierdie skadehoofde te
maak nie. Dit hang egter telkens af van ‘n verskeidenheid van faktore en die spesifieke
feite van die geval. Alhoewel daar geen vaste reel in hierdie verband is nie sal die
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toepassing van byvoorbeeld verdiskontering (in teenstelling met ‘n nul
verdiskonteringskoers), gewoonlik geen gebeurlikheidsaftrekking verg nie. Aktuariele
berekenings maak ook dikwels voorsiening vir die bepaalde eiser se lewensverwagting,
wat op sigself ‘n toelating vir vervroegde afsterwe is. Gebeurlikheidsaftrekkings word ook
soms gebruik om ‘n ietwat liberate toekenning te temper vir die kans dat die voile bedrag
nie benodig mag word nie. Daarteenoor is daar ‘n verskeidenheid van positiewe
gebeurlikheidsfaktore wat juis ‘n aftrekking mag weerle soos byvoorbeeld ‘n onderskatting
van die aantal of tipe behandelings of hulpmiddels wat benodig word, die feit dat koste
teen ‘n veel hoer tempo mag eskaleer as wat voorsien is, dat inflasie teen ‘n hoer
koers mag plaasvind, ens. Leiding moet in sulke omstandighede gevind word in
sake waar daar uitgebreide reeks hulpmiddels en verwante kostes toegelaat is
wat oor ‘n betreklike lang tydperk strek”.
[14] The principle seems to be that although it is generally accepted that contingency
deductions will be applied when loss of earning or earning capacity is considered,
contingency deductions with relation to future hospital, medical and related costs,
as well as costs for equipment, assistance etc. do not necessarily follow. It
seems that whether a contingency deduction should be applied will depend on
the evidence as well as the facts applicable to each case.
[15] The determination of any contingency deduction is discretionary and the
appropriate test when considering items to provide aid and assistance is whether
“the particular items of expenditure is reasonably required to remedy a condition
or ameliorate it”iv. In order to determine whether a contingency deduction is
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appropriate one will have to consider all the circumstances in a particular case. I
will apply the aforementioned principles when determining the appropriate
compensation for each of the items that remains in dispute.
[16] The purpose of contingency deductions must also at all times be kept in mind.
Such purpose was described in Southern Insurance Association v Baileyv as to
be to fine tune an underlying scenario to take account of the extent to which it
might be overly liberal or conservative.
[17] I will now deal with each of the disputed claims and will apply the aforementioned
principles in determining the applicable contingencies and fair compensation
FAIR COMPENSATION FOR PAST CARE-GIVING
[18] This claim relates to the period from when Megan’s blindness was discovered
until December 2012. The expenditure incurred from January to October 2013,
inclusive of the salary paid to Megan’s grandmother was settled at R88 000-00
and need no further consideration.
[19] The question that needs to be answered is whether Megan’s parents and other
caregivers should be compensated for their care giving. On behalf of the
defendant it was argued that seeing that Megan was in day-care prior to her
blindness being discovered this expense should not be allowed.
[20] It was agued by plaintiff that her parents and caregivers are entitled to
compensation. The evidence attests to the fact that Megan’s parents and her
grandmother have been caring for her and made considerable sacrifices to do so.
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[21] In considering whether compensation to family members and relatives should be
allowed Lord Denning MR stated as follows in Cunningham v Harrison and
Anothervi.
... The plaintiff’s advisors seem to have thought that a husband could not claim for the
nursing services rendered by a wife unless the husband was legally bound to pay for
them. So, on their advice ... an agreement was signed whereby the husband agreed to
pay his wife £2 000 per annum in respect of her nursing services . . . I know the reason
why such advice is given. It is because it has been said in some cases that a plaintiff can
only recover for services rendered to him when he was legally liable to pay for them ... But,
I think that view is much too narrow. It seems to me that when a husband is grievously
injured - and is entitled to damages - then it is only right and just that, if his wife renders
service to him, instead of a nurse, he should recover compensation for the value of the
services that his wife has rendered. It should not be necessary to draw up a legal
agreement for them. On recovering such an amount, the husband should hold it on trust
for her and pay it over to her ...”
[22] Our courts have in the past made allowance for an award under this headingvii. In
the matter of Websterviii, the claimant was a 15 year old school girl at the time of
the accident. She was severely brain-damaged. Her mother gave up her
employment as an estate agent and devoted herself to caring for her daughter,
communicating with her in every way possible, and stimulating her. Comrie J
allowed compensation on the basis of the loss of income, saying that there was
“no substantial difference” between Mrs Bosch’s loss and the amount that would
otherwise have been paid to a caregiver
[23] Virtually all of the experts who testified confirmed the meaningful role which
Megan’s parents and grandparents played in giving her the type of
encouragement and stimulation that she needed as a blind child, and would have
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been able to afford herself had she been sighted. They testified about the
exceptional progress Megan has made despite her blindness. Dr Truter referred
in this regard to the so-called pseudo-autism which is prevalent in blind people
which was avoided precisely as a result of this stimulation. Mrs Greeff touched on
it, and Mr Linde, Mrs Vlok and Mr Prinsloo all praised the parents for their efforts.
[24] Mr Jansen testified as to the time and sacrifices that he and the plaintiff have
made. He also testified about the sacrifices that Megan’s maternal grandmother
has made.
[25] The defendants, and the defendant’s experts, make understandably much of the
fact that Megan seems to be relatively untouched by her blindness, but this is a
result of all the effort that her family put in. It is obvious from the uncontested
evidence that Megan’s parents had to go far beyond what would have been
required of them if she was sighted in assuring proper care and assistance for
her. It follows that they should be compensated for that.
[26] Mr Whittaker’s calculated past care giving at R4 000-00 per month, deflated from
December 2012 to 1 July 2007. This amount is in my view reasonable and the
parties agreed on the calculation. An award of R216 407-00 should be allowed
under this heading. A total amount of R304 407-00 is allowed for past care giving,
which includes the amount of R88 000-00 which agreed on as compensation for
Megan’s grandmother’s past caregiving.
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FUTURE PSYCHOTERAPY COSTS
[27] The defendant contested the necessity of the expenses for future psychotherapy.
No evidence was led to counter the evidence of Dr Truter, a psychologist, who
testified on behalf of the plaintiff.
[28] Dr Truter testified about the devastating consequences of Megan’s blindness and
the profound effect on her family who had to make permanent adjustments to
accommodate her disability. He testified about how hard her parents have to work
to make ends meet, especially Mr Jansen, who is according to him on the verge
of burnout. He referred to the strain put on her parents’ relationship due to
financial pressure and the demands that Megan’s blindness put on them. It is
clear that her parents have to make enormous personal sacrifices to ensure the
best care possible for Megan.
[29] He testified about what an exceptional job her parents have done so far in raising
Megan. She is inquisitive, intelligent and he noted that she reached her
developmental milestones despite her disability.
[30] He stated that psychotherapy for both her and her family may be required. Megan
will as a result of her disability require psychotherapy in future and her family
would also require psychotherapy as a result of the strain that Megan’s disability
put on them. Mr Bedhesi argued that the therapy required by Megan’s parents
should not be the responsibility of the defendant. I am of the view that defendant
should be liable, as not only will support to her parents assist Megan, but their
problems according to the uncontested evidence of Dr Truter, are a direct result
of the strain put on them as a result of Megan’s blindness, which in turn was
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caused by defendant’s negligence. I regard this expenditure as reasonable under
the circumstances.
[31] Dr Truter readily conceded that there is some overlap between the therapy he
recommended and the therapy recommended by the educational psychologist. It
then follows that allowance for this overlap must be made. Dr Truter suggests
that a 15-20% overlapping occurs. There is nothing before me to indicate that Dr
Truter’s estimation is incorrect. If this is accepted, the figure calculated by the
actuary, Mr Whittaker, being R88 978-00, should be reduced by allowing for an
appropriate contingency deduction. Mr Mullins, on behalf of the plaintiff,
suggested a reduction of 17.5%, (which is the mean between the 15% and 20%
which Dr Truter suggested) which will reduce the cost of psychotherapy to R73
407-00.
[32] I am of the view that there is no basis for either a contingency addition or
deduction pertaining to this expense. The costs pertaining to this could rise, and
more assistance maybe required that what is provided forix.
[33] I therefore allow an amount of R73 407-00 for this expenditure.
RECOMMENDATIONS BY THE OCCUPATIONAL THERAPISTS
[34] The occupational therapists found some agreement pertaining to the items they
had to deliberate on, but some items were heavily disputed. I will deal with the
items under their respective headings as set out in the report of the actuary.
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(i) OCCUPATIONAL THEREPAY
[35] The occupational therapists do not agree on items 1 - 4 , which is the amount of
sessions from now until Megan reach the age of 18 years. Mrs Greeff, on behalf
of the plaintiff recommended 120 sessions and Mrs Vlok recommended 80
sessions. Both experts conceded that one could not be dogmatic and as a result
Mr Mullins on behalf of the plaintiff suggested that one should split the difference.
I agree that this approach is the correct one seeing that it is impossible to predict
the amount of sessions which would actually be required. If one follows that
approach an amount of R57 729-99 should be allowed for these items.
[36] The occupational therapists agreed on items 5-7 pertaining to occupational
therapy to a total amount of R30 318-00. This include occupational therapy, from
age 22 for a period of 12 years, which include 24 visits, 12 home/work visits and 5
hours training for caregivers.
[37] No contingency deduction should be allowed, as the costs of therapy may
increase An amount of R88 047-00 (R57 729-00 plus R30 318-00) for
occupational therapy is allowed.
(ii) SCHOOLING AND EDUCATION
[38] The experts agreed on items 8 - 1 0 , being costs pertaining to schooling and
education but the additional cost of a specialised school over a mainstream
school (item 8) was not provided and consequently not costed. The additional
costs pertaining to transport was borne out by the figures and was agreed
between the therapists, so was the costs of boarding. Megan might not board, but
the evidence shows that her parents, who lives in Boksburg, has been renting a
flat in Pretoria, where Prinshof School is and where she and her grandmother
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stays over some nights during the week. If she does not board they will have to
continue renting the flat. Under these circumstances costs pertaining to
accommodation will have to be incurred.
[39] The costs of transport is calculated at R70 404-00 and that of boarding is
calculated at R87 771-00. Consequently an amount of R158 175-00 should be
allowed for these items. No contingency is allowed as these costs will have to be
incurred in some form or other. There is also a possibility that these costs may
increase in future, which make any contingency deduction inappropriate.
(iii) SPECIAL AND ADAPTED EQUIPMENT
[40] The occupational therapists agreed on all but one of special adaptions and
requirements that Megan may need as set out in items 11 - 35 of the actuarial
report. The only item disputed is the talking microwave and the costs of
importation of that item. The total costs of this item is R4 473-00. According to
Mrs Vlok’s evidence an ordinary microwave can be adjusted to cater for the
needs of the blind at no extra cost. The evidence was however that the talking
microwave was better suited for the needs of a blind person. It must be
considered that the test which should be applied is whether it would be
reasonable to provide for it. This is a relatively inexpensive item and I am of the
view that it would be churlish not to allow this expense just because it is not
presently available in South-Africa and other blind people make do without it.
[41] Although many of the items set out in items 1 1 - 3 5 that Megan now requires
would not have been necessary if she was sighted, some of the items would
have been required, although in a less expensive form. In Van Der Merwex a 5%
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contingency deduction was allowed as a result of that and Mr Mullins suggested
that under the circumstances I should do the same. I agree with the proposal,
which would then lead to it that the amount of R37 437-00 be reduced to an
amount of R35 565-00.
(iv) LEARNING MATERIALS AND TERTIARY STUDIES
[42] Items 36 to 38 are educational assistance materials and are agreed between the
occupational therapists and calculated at R72 088-00. There exists no basis for a
contingency deduction pertaining to these expensesxi.
(v) ELECTRONIC EQUIPMET
[43] Items 39 - 47 deals with electronic equipment that Megan will require. Only two
items were in dispute, item 45, the EZ Form or Quantum Technology Piaf as well
as item 47 the type of cell phone.
[44] Item 45 will only be required if Megan were to study in the field of mathematical
diagrams and maps. There is no indication by the educational psychologists that
indicate that Megan might adopt this course of study. Mrs Greeff accepted in her
evidence that a scanner would be sufficient unless Megan enters the
aforementioned fields. In my view it would in the light of the evidence not be
reasonable to provide for this item. The amount of R25 253- 00 being the amount
allowed for item 45 should in my view be deducted from the expenses set out
pertaining to these items.
[45] Item 47, the type of cell phone was initially heavily contested. The evidence of Mr
Wagner was that the iphone is the preferred phone for use by blind people. The
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amount is claimed and calculated only on the basis of the difference between the
cost of the required item and that of the standard item that Megan would have
required if she was not blind. In my view and under these circumstances the
amount should be allowed for this item.
[46] Under the circumstances the amount of R25 253-00 should be subtracted from
the amount of R733 583-00 and an amount of R708 330-00. There is no room for
any contingency deduction pertaining to these items.
(vi) MOBILITY
[47] Items 48 to 56 which are items pertaining to mobility and is agreed between the
occupational therapists. No contingency deduction pertaining to these items
should be allowed and the amount of R465 512 000-00 should be allowed.
(vii) CASE MANAGEMENT
[48] Case management as outlined in items 57 and 58 totalling R59 920-00 was
heavily disputed by Mrs Vlok. Mrs Greeff in evidence illustrated how a case
manager would assist Megan. It would seem that the function of such a person
would be to assist with the sourcing of items needed by Megan, to provide
guidance pertaining to the appropriate therapy required by her and also to act as
a buffer between her and the world. Mrs Greeff pointed out that due to her
disability Megan will always be vulnerable. She stated that the case manager will
be someone who is knowledgeable about the blind, therefore her parents can’t
fulfil the role that a case manager would play. Initially 12 hours is provided for in
the first year and after that 24 hours per annum. Mrs Vlok, insisted that a case
manager was not necessary. Necessity is however not the test that should be
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applied when determining whether the expense pertaining to this should be
allowed. What would be reasonable under the circumstances of the specific case
is the appropriate testxii. In my view it would be reasonable to allow for the
expenses of a case manager. I also take cognisance of the fact that the speech
therapist also agreed that a case manager should be appointed. In my view the
amount of R59 920-00 should be allowed in this regard. No contingency
deduction should be allowed for the same reasons as previously alluded to.
(viii) ASSISTANCE
[49] Under the heading of assistance required by Megan as set out under items 59 to
73 Mrs Vlok and Mrs Greeff are in agreement pertaining to assistance from age
19 to 25 as per items 59 (care provided by grandmother until age 18), items 60
(additional costs relating to food, travel etc until age 18), 64 (care required once
Megan is an adult and continues to reside at home from age 18 to 25), 65
(additional costs relating to food, travel from age 18 to 25) totalling an amount of
R1 096 265-00.
[50] Item 61, the au pair during school holidays was however vigorously contested by
Mrs Vlok. Although Mrs Vlok conceded that Megan’s grandmother should be
allowed time off she argued that whatever expenses or degree of care should be
required to aid during school holidays would in any event have been required if
Megan had been sighted.
[51] It is obvious that some degree of care would have been required if she was
sighted, but it is equally clear that as a result of her blindness Megan will be much
more vulnerable and dependant on care than a sighted child. In my view although
the services of an au pair might have been a luxury pre-morbid it is a necessity
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post-morbid. In the light of the fact that some care may have been required pre-
morbid I am of the view that a 20% contingency should be applied which would
reduce the claimed amount of R207 790-00 to R166 232- D O .
[52] Item 62 (tutoring during high school) was also contested by Mrs Vlok. It must be
noted that only 2 hours per subject per term is required. It was argued by Mr
Bedhesi that as Megan is a bright child she will not require extra tutoring. I am of
the view that it is reasonable to predict that Megan will require extra tutoring to
enable her to reach her best potential, which she might not have required if she
was sighted, it is clear that as a blind person she will need more assistance to
enable her to do that.
[53] I considered the possibility to apply some contingency deduction pertaining to this
expense, but in the light of the fact that she might have required tutoring even if
she was sighted, but due to the fact that the figure claimed is conservative I
decided against it and allowed the full amount of R45 328-00. The occupational
therapists agreed that additional tutoring should be allowed once Megan starts
tertiary education this amount however was not costed. This contributed to my
decision not to apply any contingency to this item.
[54] Care once Megan leaves the parental home (items 66 - 74) at an assumed age
26 was vigorously disputed by the occupational therapists. In this regard, the
evidence was as follows:
54.1 Mrs Greeff suggested a monthly figure of R7 100-00 costed over
fourteen months. Her evidence was that this is the going rate for
caregivers. This was not contested in cross-examination or by Ms
Vlok.
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54.2 Mrs Greeff conceded that item 67 (additional costs relating to food,
travel etc) would be regarded as included in her salary figure.
54.3 As far as Mrs Vlok’s standpoint is concerned:
(i) Mrs Vlok in her report contended for a figure of R4 250-00
inclusive of food, travel etc
(ii) It was put to Mrs Vlok in cross-examination that she had in
Van Der Merwexiii in October 2005 recommended a figure of
R3 500-00 per month costed over fourteen months, and that
with reference to the actuarial calculations, that is the
present equivalent of R5 700-00 per month, and not the R4
500-00 per month contended for by her.
(iii) In the joint minute, Mrs Vlok upped the figure by rendering
the allowance for food, travel etc as additional (as opposed
to previously being included).
[55] It became evident that the basis for Mrs Vlok’s figure was her assumption that the
carer would be someone more in the mould of a domestic servant than a
caregiver. It was suggested by Mrs Greeff’s argument that what is needed is a
higher level of companionship.
[56] I tend to agree with Mrs Greeff that Megan will require a higher level of
companionship and caregiving than that envisaged by Mrs Vlok. Her assumption
that the caregiver could double as a domestic servant is untenable. The following
in Van Der Merwexiv must be reiterated. Claassen J stated as follows:
“Dit sou onredelik wees om te verwag dat so ‘n persoon as ‘n huishulp diens moet
doen aangesien dit juis die effek mag he dat so ‘n persoon gefrustreerd mag raak en
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dood eenvoudig nie werk van daardie aard sal wil doen nie dit , heel waarskynlik ‘n
hoe omset van assistente tot nadeel van Rochelle tot gevolg sal he. Dit is duidelik dat
kontinu'fteit sover moontlik gehandhaaf moet word.’’
[57] In the premises an amount of R1 810 512-00 as contended for by Mrs Greeff
should be allowed regarding items 66 - 68. No contingencies should be allowed
for this expense.
[58] Regarding item 69 (relief caregiver) Mrs Vlok followed the same approach
namely that she should double as a domestic servant. I have already rejected
that approach. In this regard Mrs Greeff in her evidence made the point that
whereas the relief caregiver is calculated from age 19, she is envisaged only
from 25. The plaintiff made a calculation as it was not possible to obtain a
recalculation of the effect that this will have on the amount claimed. The
defendant did not dispute the calculation. The calculation was done by taking into
consideration the difference between the life-expectancy of 50.62 years from age
19 and 43.62 from the age of 26, which translates to a reduction of 13.83%. In
addition to that, the reduction is in the early years, where capitalisation has least
effect. Taking everything into account, item 69 (R871 166-00) is reduced by 20%
to take account of all the factors, to R696 933-00. This amount should then be
allowed.
[59] This leaves items 71 (domestic assistance) and 73 (gardener assistance), which
can conveniently be dealt with together. In this regard the occupational therapists
disagreed. The amount reflected in the actuarial calculation under item 71 is
R625 452-00 and item 73 is R104 540-00.
[60] Mrs Vlok disputed both items, not on the basis that Megan will be able to attend
to these on her own, but on the basis that the caregiver would double as a
domestic servant, and that sighted Megan would in any event not have saved on
the cost of gardening assistance by attending to any of this items herself.
[61] Mrs Greeff conceded in her evidence that whereas item 71 is calculated from age
19, what she had envisaged was a calculation from age 26. She also readily
conceded that sighted Megan might in any event have made use of a domestic
assistant, but she cogently distinguished between luxury that this might otherwise
have been, and the necessity that it now is.
[62] Taking everything into account, including firstly the probable 20% reduction that
would be needed to account for the difference between a calculation from age 19
and one from age 26 and the real possibility that a sighted Megan might in any
event have made use of a domestic assistant , coupled with the fact that it is
evident from the paragraphs of Van Der Merwe referred to above, that the
calculations were extraordinary complicated and appear only to have related to
the period when Rochelle was living with her family. I am of the view that a fair
approach would be to reduce item 71 to R100 000-00 as was suggested by the
plaintiff.
[63] Child care in the event that Megan has children was agreed at R45 331-00 and a
30% contingency is applied as in Van Der Merwexv, resulting in an amount of R31
732-00.
23
[64] Much the same reasoning applied to item 73, the gardener, where Mrs Greeff
also stated in her evidence that she had envisaged the expenditure from age 26,
as opposed to the calculated age 19, and where one has likewise to contend with
the real possibility that sighted Megan would in any event have employed a
garden assistant. However, this is clearly not something that Megan is
incapacitated from, and it seems reasonable to apply the same contingency
deduction as was applied in Van Der Merwe of 35%, with an additional 20% for
the age factor (that the calculations should be from age 26 and not from age 19(,
to reduce the total of R104 540-00 to R54 361 -
00.
[65] The aforegoing results in the following sub-totals for occupational therapy:
(a) Occupational therapy (items 1 - 7 ) R 88 047-00
(b) Schooling and education (items 8 - 1 0 ) R 158 175-00
(c) Special and adapted equipment (items 11 - 35) R 35 565-00
(d) Learning materials (items 36 - 38) R 72 088-00
(e) Electronic equipment (items 39 - 47) R 708 330-00
(f) Mobility (items 48 - 56) R 465 512-00
(g) Case management (items 57 - 58) R 59 920-00
(h) Assistance (items 59 - 70) R3 815 270-00
(i) Domestic and gardening assistance (items 7 1 - 7 3 ) R 186 093-00
24
TOTAL: R5 589 000-00
LOSS OF INCOME AND EARNING CAPACITY
[66] The industrial psychologists sketched 5 different scenarios pertaining to loss of
income and earning capacity. The question arises whether a choice needs to be
made amongst the different scenarios sketched.
[67] The two pre-morbid scenarios will be considered first. The difference between the
two pre-morbid scenarios is simply this, that scenario 1 assumes that Megan will
obtain a university degree (scenario 1 being the combination of Mr Linde and Mrs
Van Zyl and Mr Prinsloo’s views in this regard, with the relatively minor
differences between them smoothed out), whereas scenario 2 is Mr Linde’s
suggested scenario, which assumes a Technikon Diploma. Mr Linde regarded the
latter as more probable when considering that neither of her parents obtained
matric with university exemption. It must be noted that the educational
psychologists were also in agreement that Megan would have completed matric
as well as tertiary education at either a university or Technikon.
[68] Much as one would wish the best for Megan it seems that a proper reading of the
joint minute of the educational psychologists and if one considers the evidence of
the industrial psychologists it would seem that both scenarios are equally
possible. I agree with Mr Mullin’s submission that when the evidence is
considered the court cannot prefer one scenario over the other, as it would seem
25
that both are equally possible.
[69] It was suggested that, pre-morbidly, one should simply take the mean between
the gross value of scenario 1 and scenario 2, which results in a pre- morbid gross
figure of R5 612 789-00. In the light of the fact that both scenarios are equally
possible this approach would seem to be a practical and fair one. If this approach
is followed pre-morbidly it should also be done post- morbidly.
[70] Post-morbidly there are three possible scenarios, viz Mr Linde’s Diploma scenario
(scenario A), Mr Prinsloo and Mrs Van Zyl’s Bachelor’s degree scenario
(scenario C) and Mr Linde’s Bachelor’s Degree (scenario B).
[71] The plaintiff suggests that the reasonable thing to do is to take the mean between
scenario A and C, ignoring Mr Linde’s scenario B. If one does not follow this
approach one would be unfairly weighing the post-morbid figures in favour of a
Bachelor’s degree. This seems to me to be the correct approach.
[72] This means that one would take the mean of the gross figure or R2 478 344- 00
(scenario A - the diploma) and R4 597 098-00 (scenario C - the degree) resulting
in a mean post-morbid gross figure of R3 537 721-00.
[73] The next question that needs consideration is what contingency deductions to
26
adopt.
[74] I will first consider the pre-morbid situation.
PRE-MORBID
[75] As already stated there are distinct parallels between the facts of this case and
those of Van Der Merwexvi. Megan is 6 whereas Rochelle was 12 years old at the
time of the trial. Megan has shown great promise. Rochelle was old enough to be
IQ tested, and tested superior. Both girls were enrolled in Prinshof.
[76] In the light of these parallels it is appropriate to look at what was done in Van Der
Merwe. The pre-morbid scenario in Van Der Merwe was that Rochelle would
matriculate and obtain either a three year Bachelor’s Degree (like Megan’s
scenario 1), or a diploma (Megan’s scenario 2).
[77] It is difficult to discern from Van Der Merwe precisely what pre-morbid career
scenario was decided upon, other than that, based on a three year Bachelor’s
Degree, it took her beyond Paterson Grade B5. How far beyond B5 the scenario
took her, does not appear from the judgment.
[78] On the strength of the evidence there (that of the now-deceased industrial
psychologist Mr Dave Lewis), it was agreed that whilst there was little doubt
27
about Rochelle’s ability to achieve the B5 level, those doubts increased above
that level, and on that basis a graded pre-morbid contingency deduction was
decided upon, of 15% up to and including B5, and then 20% above that. In this
case, however there was no evidence to justify a graded pre-morbid contingency.
[79] A series of cases indicate that the courts normally apply a contingency of 15%
pre-morbid when all things are more or less equalxvii.
[80] One of the factors to be borne in mind when considering the appropriate
contingency deduction is the age of the person in question and thus the length of
the period in question. Megan is young, the period is long, and that will have an
effect on the determination of the appropriate contingencies. Mr Mullins on behalf
of the plaintiff correctly conceded that a 20% contingency deduction pre-morbidly
is more appropriate. The same approach must then be followed post-morbidly.
[81] The appropriate pre-morbid contingency deduction to be applied to the figure of R5 612
789-00 that is the mean between scenarios 1 (University Degree) and 2 (Diploma) is 20%,
reducing the pre-morbid figure to a nett of R4 490 231-00.
POST-MORBID
[82] This brings me to the post-morbid contingency deduction. In Van Der Merwexviii, in
line with the graded approach that was adopted pre-morbidly, the post-morbid
28
contingency deductions were 60% up to and including B4, and 65% beyond that.
[83] Much the same post-morbid contingencies were brought into account in Van Der
Merwe as the evidence suggested in casu.
[84] Mr Mullins on behalf of the plaintiff argued that although there are obvious
similarities between this case and Van Der Merwexix these similarities should not be
taken too far. His submission in this regard, if I understand it correctly, is that in casu
there is much more evidence available pertaining to the post- morbid projections,
which in turn would allow for a higher post-morbid contingency deduction.
[85] It would appear that the only statistical evidence as to unemployment that featured
in Van Der Merwe was Mr Lewis’s projection that disabled people in general had a
54% chance of employment in contrast with non-disabled individuals.
[86] In this case much more evidence was led pertaining to a blind person’s chances to
obtain and sustain employment. Evidence was led pertaining to the challenges blind
people encounter pertaining to study fields open to them and difficulties they
encounter when looking for employment.
29
[87] Evidence was led that according to the National Council for the Blind’s statistics 97% of
all visually impaired people are unemployed. It must be stated however that not much
weight can be given to this as the evidence was also that 80% of blind people live in the
rural areas and are uneducated, which will not be applicable to Megan.
[88] Mr Linde’s evidence, as also that of Mr Wagner, are to the effect that affirmative action
means that whilst black, indian and coloured blind people might be able to find
employment with the government, whites are unable to.
This was not attacked in cross-examination and must be accepted. Megan’s chances to
benefit from government’s concern about disabled people are slim.
[89] Mr Wagner who is a blind person himself and who inter alia acts as a motivational
speaker and adventurer testified, about the difficulties blind people face when they enter
the labour market.
[90] Mr Wagner testified when the evidence of Mr Erwee of Pretoria University’s Disability
Unit to the effect that “if a company appoints a blind individual, all they have to do is to
invest R10 000-00 in purchasing the JAWS computer programme” was put to him why
this was a gross overstatement.
[91] He described how the JAWS programme might not be compatible with other software,
how a blind person might be unable to read a document or a graph, or might take
inordinately long to do so, all rendering such a person either less attractive, or
30
unattractive, as an employee.
[92] He also referred to his matric class of 1989 and testified that of the 29 who
matriculated with him only about 60% have jobs. He emphasized that the nature of
those jobs is switchboard operators and the like.
[93] He also said that, in conjunction with a Cape Town based (but with a national
footprint) personnel agency, he has tried to place disabled people in employment.
They have a database of 800, of whom approximately 20% are blind or partially
sighted. In the last two years, he said, they had only been able to place eight of
those on the database, of whom only one was blind. And at that, he said, he had
had to put in a good deal of work to sensitise the entity that eventually agreed to
employ the blind person.
[94] He confirmed that whilst there is plenty of legislation encouraging (indeed, even
forcing) employers to employ people with disabilities, the legislation doesn’t
distinguish between disabilities. Employers would, he said, prefer to employ
someone whose disability would not impose additional expenditure or risk on them
(one thinks of someone who walks with difficulty, an amputee, etc).His evidence
illustrated the difficulties which a blind person faces, which sighted people cannot
easily conceive of.
[95] His evidence is confirmed by the evidence led in Edem v Road Accident Fundxx
31
where the evidence was that the only job opportunities available to visually impaired
persons were those of a switchboard operator, call centre operator, unremunerated
counsellor, or motivational speaker.
[96] The industrial psychologists relied on hearsay evidence form the different
universities pertaining to blind graduates getting employment. This evidence paint a
much rosier picture about the position of blind people. Mr Erwee from the University
of Pretoria for example told Mr Prinsloo that 100% of disabled students obtained
employment. Dr Anita Pretorius Head of the Disability Unit of the University of
Witwatersrand told Mr Prinsloo that she is not aware of any blind or visually
impaired student from Wits who is unemployed and Ms Melaney Willems from
Stellenbosch University states on a subjective assessment that around 50% of
disabled students secure work after completion of their studies. She also states that
a number of students do not want to leave the Cape Province to be employed
elsewhere, which may contribute to them not getting employment.
[97] Although Mr Mullins conceded that it is permissible for experts to rely to some
extent on hearsay evidence he cautioned against giving too much weight to the
hearsay evidence of the sources referred to in the previous paragraphxxi. The
evidence was that the information was not based on any statistical data but would
seem to be based on their perception and experience. I will not disregard the
evidence but will also weigh it against the evidence of Mr Wagner.
[98] Mr Prinsloo, the industrial psychologist for the defendant readily conceded under
cross-examination that Megan faces limited study and career choices as a blind
person. Although nothing more than anecdotal these limitations are also illustrated
by a study document about employment experiences of blind people to which he
was referred under cross-examinationxxii. It must be accepted that sighted Megan
33
would have a world of choices before her, blind Megan might be forced into a field
that is not her choice.
[99] The educational psychologists in their joint minute agreed that the possibility of
Megan obtaining and sustaining employment in the open labour market is limited.
[100] On a consideration of all the evidence before me it is clear that the challenges that
Megan will face in obtaining employment must not be underestimated. Megan is a
bright little girl who will in all probability accomplish more than the average blind
person, but even for her there will in my view be lots of challenges when competing
in the open labour market and her career options will be limited. Although the
evidence of the people at the different universities is much more positive I am
inclined to give more weight to the evidence of Mr Wagner, who even as an
exceptionally talented individual testified about the challenges he faced with regard
to obtaining suitable employment.
[101] In Van Der Merwe a graded approach of 60 - 65% was followed. There is no
evidence in this case that will allow for a graded approach. This court also had
much more evidence available to assist in determining an appropriate contingency
deduction. It remains difficult to determine the appropriate contingency deduction
but in the light of the evidence that:
(a) Megan will have limited career options as a result of her blindness;
(b) Will in all probability have difficulty in finding an appropriate position;
34
(c) Will in all probability struggle to compete in the open labour market;
(d) May have difficulty in sustaining employment;
(e) May have difficulty in progressing and reaching her full potential;
(f) May not be able to follow a career of her choice; and
(g) May as a result of her race not benefit from the employment equity
legislation. I am of the view that a higher contingency deduction
should be allowed.
[102] Mr Mullins suggested a 80% contingency deduction. I am of the view that taking
into consideration what was stated above but also Megan’s potential and abilities to
which there was ample evidence a 75% contingency deduction should be allowed.
[103] If one applies a 75% contingency deduction to the figure of R3 537 721-00 one
arrives at a figure of R884 430-00. Deducting that from the pre-morbid figure of
R4 490 231-00, results in a loss of income figure of R3 605 801-00.
THE TOTAL AWARD
[104] The total award is:
1. Past caregiving R 304 407-00
2. Future hospital, medical and related expenditure R 7 126 290-00
3. Loss of income and of earning capacity R 3 605 801-00
4. General damages R 1 200 00-00
5. Costs of protection of the award (7.5% on R 894 907-00
the amount of R11 932 091-00)
TOTAL: COSTS
[105] There was some delay in the matter due to an apparent failure of the defendant to
mandate it’s legal team, something that occurs in nearly every case where the state
is a party too. This inevitably results in a waste of tax payers’ money. The plaintiff
requested me to comment on this, but due to the fact that I was not made privy to
the actual cause of the defendant’s failure to mandate it’s legal team I do not deem
it appropriate to say anything about the delay. It must be noted that the plaintiff’s
legal representatives, initially indicated that they will ask for a special costs order
against the defendant, but decided not to proceed with that request, this fortifies my
view that 1 should refrain from any comment in this regard.
[106] Defendant refused to agree that the costs of attorneys and counsels attendance at
the pre-trial meetings be allowed in terms of rule 37(9). I am of the view that these
costs should be allowed as such attendance was reasonable under the
circumstances of this case.
[107] Consequently I make an order in terms of the draft marked “X”.
36
R G TOLMAY
JUDGE OF THE HIGH COURT
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT, PRETORIA)
CASE NO: 2010/25934
In the matter between:
LOCHNER. ILZE
(obo MEGAN JANSEN)………………………………………………………Plaintiff
and
MEC FOR HEALTH AND SOCIAL DEVELOPMENT.
MPUMALANGA……………………………………………………………..Defendant
DRAFT ORDER
It is hereby ordered as follows:
1. The Defendant is ordered to pay the capital amount of R13 335 130.00
(THIRTEEN MILLION THREE HUNDRED AND THIRTY FIVE
THOUSAND ONE HUNDRED AND THIRTY RAND) to the Plaintiff’s
Attorneys of Record, "rust account detail as follows:
PAUL DU PLESSIS ATTORNEYS TRUST ACCOUNT
Bank: Standard Bank
Branch:
Branch Code:
Account No:
2. The aforesaid capital amount will not bear interest unless the Defendant fails
to effect payment thereof within thirty calendar days of the date of this Order,
in which event the capital amount will bear interest at the rate of 15,5% per
annum calculated from and including the day after the date of this Order to
and including the date of payment thereof.
3. The Defendant is ordered to pay the Plaintiff’s taxed or agreed party and
party costs, including the following costs:
3.1 The costs of employing two counsel;
3.2 The costs attendant upon counsel’s and attorneys’ attendance at the
first, second and third quantum pre-trial conferences, including the
costs of preparation of agendas and drafting of the pre-trial minutes;
3.3 The costs attendant upon the attendance at court and evidence of
Messrs Jansen and Wagner, who are both declared to have been
necessary witnesses;
3.4 The costs of the obtaining by the Plaintiff of the reports of the
following experts:
3.4.1 Dr Konig;
3.4.2 Dr Birrell; 3.4.3 Ms Greeff;
3.4.4 Ms Purchase;
3.4.5 Ms Hattingh;
3.4.6 Ms Jackson;
3.4.7 Dr Truter;
3.4.8 Mr Eybers;
3.4 9 Mr Linde; and
3.4.10 Mr Whittaker;
3.5 The reasonable preparation/qualifying and reservation fees (if any) of the
experts referred to in paragraph 3.4 above, including the costs of
consultations (if any) with the legal team, and the costs of and associated
with the obtaining of joint minutes of experts;
3.6 The reasonable travelling costs of attending the medico-legal examinations,
subject to the discretion of the Taxing Master; and
3.7 The costs attendant upon the obtaining of payment of the amounts referred
to in this Order.
4. The following provisions will apply with regards to the determination of the
aforementioned taxed or agreed party and party costs:
4.1 The Plaintiff’s Attorneys shall serve the Notice of Taxation on the
Defendant’s Attorneys of Record;
4.2 The Defendant shall be allowed 7 (seven) days from date of
settlement or of taxation within which to effect payment of the
agreed or taxed costs; and
4.3 Should payment not be effected within the aforementioned period,
the Plaintiff will be entitled to recover interest on the taxed or
agreed costs at the rate of 15,5% per annum calculated from and
including the day after the date of settlement of the costs or of
taxation, to and including the date of finai payment thereof.
5. The nett proceeds of the payments referred to above, after deduction of
the amount of R304 407,00 (which is intended as compensation to
Megan’s parents and grandparents for their caregiving of her to date) and
of attorney and own client costs ("the capital amount”), shall be payable by
the Plaintiff’s Attorneys to a Trust, to be created within 12 (twelve) months
of the date of this Order, which Trust will:
5.1 Be created on the basis of the provisions as more fully set out in
the draft Trust Deed attached hereto marked “A”;
5.2 Have, as its main objective, the controlling and administering of the
capital amount on behalf of Megan; and
5.3 Have, as its professional Trustee, JACOBUS FREDERIK DE
BEER, with powers and abilities as set out in the draft Trust Deed
attached hereto marked “A”.
6. Should the aforementioned Trust not be created within the aforementioned
period of 12 (twelve) months, the Plaintiff is directed to approach this Court
within 1 (one) month thereafter in order to obtain further directives in
respect of the manner in which the capital amount is to be utilised in favour
of Megan.
7. Until such time as the professional Trustee is able to take control of the
capital sum and to deal with same in terms of the Trust Deed, the Plaintiff’s
Attorneys of Record:
7.1 Are authorised to invest the capital amount in an interest- bearing
account with a registered banking institution in terms of Section 78(2A) of
the Attorneys’ Act, 53 of 1979, to the benefit of Megan, pending the
finalisation of the Trust;
7.2 Shall be prohibited from dealing with the capital in any other
manner unless specifically authorised thereto by the Court, subject to
paragraph 7.3 hereunder; and
7.3 Are authorised and ordered to make any reasonable payments to
satisfy any of Megan’s needs that may arise and that are required in order
to satisfy any reasonable need for treatment, care, aids or equipment that
may arise in the interim.
The appointment of the professional Trustee is subject thereto that the
professional Trustee furnish security to the satisfaction of the Master of the High
Court.
BY ORDER
REGISTRAR
DEED OF TRUST
THE PARTIES. THE DEED OF TRUST, AND THE DONATION:
1.
This Deed of Trust is entered into in pursuance of a Court Order of the High
Court of South Africa (North Gauteng High Court Pretoria) dated 21 October
2013 in Case No: 25934/2010 in the matter between ILZE LOCHNER (obo
MEGAN JANSEN) and the MEC FOR HEALTH AND SOCIAL DEVELOPMENT,
MPUMALANGA.
2.
The Deed of Trust is entered into between:
2.1 On the one hand, PAUL DU PLESSIS, in HIS capacity as Attorney for
MEGAN JANSEN (“Megan”) (and who will be referred to hereinafter as “the
Donor”), and
2.2 On the other hand, JACOBUS FREDERIK DE BEER, in his capacity as
Trustee appointed in terms of this Deed of Trust (and who will be referred to
hereinafter as “the Trustee”). The Donor donates to the Trustee the sum of
R100,00, which amount is to be held by the Trustee in trust and to be
administered by the Trustee in terms of the conditions and terms of this Deed
of Trust.
NAME OF THE TRUST:
4.
The name of the Trust will be THE MEGAN JANSEN TRUST.
THE TRUSTEE:
5.
5.1 The first Trustee of the Trust will be the person described in clause 2.2 above as
the Trustee. The office of Trustee will be held by such person for an indefinite
period until resignation or incapacity or the termination of the Trust.
5.2 In the event of the Trustee’s appointment terminating for any reason, the Trustee
will be succeeded by such person as might be nominated by the Master of the
High Court, subject to the provisions of this Trust Deed.
5.3 The Trustee is required to furnish security to the satisfaction of the Master of the
High Court of South Africa for the assets of the Trust, and for the due
compliance of all of the Trustee’s obligations towards the Trust.
THE BENEFICIARY OF THE TRUST:
6.
6.1 The beneficiary of the Trust will be Megan.
6.2 Megan will be the beneficiary of the Trust with regard both to the capital and
to the income derived therefrom.
6.3 As outlined below, the capital and income of the Trust shall be used for the
benefit of Megan, in such manner as the Trustee should deem appropriate,
having regard to the interests of Megan.
6.4 Should Megan pass away, the Trust’s assets will be transferred to her heirs
as set out in her Will and Testament.
Should Megan not leave any Will and Testament, the Trust shall be
transferred to the intestate heir or heirs of Megan in accordance with the law
of intestate succession as it then would apply.
THE OBJECTIVES OF THE TRUST:
7.
The objectives of this Deed of Trust are the following:
7.1 To administer the capital amount, which represents damages payable to
Megan by the MEC for Health and Social Development, Mpumalanga,
arising out of Megan’s blindness, in such a way that, as far as reasonably
possible, the capital amount received by the Trust achieves its purpose of
compensating Megan in respect of the damage suffered by her arising out of
her blindness.
7.2 Subject to 7.1 above, to maintain and support Megan.
7.3 In accordance with the aforegoing, to see to it that the hospital, medical and
related needs of Megan, particularly those arising out of her blindness, are
met.
7.4 To do anything that the Trustee in the Trustee’s discretion deems necessary
for the general well-being of Megan. It is recorded that the Trustee will be
entitled to incur such reasonable costs as the Trustee deems necessary in
this regard in the Trustee’s absolute discretion.
7.5 To invest the assets of the Trust and to act therewith in such a manner so as
to attempt to increase same and if possible to cause capital growth in order
for the funds paid over to the Trust to be administered for as long as possible
to the benefit of Megan, keeping in mind the aim outlined in paragraph 7.1
above.
THE ASSETS OF THE TRUST:
8.
The assets of the Trust will include the following:
8.1 The donation described in paragraph 3 above.
8.2 The capital amount paid to the Trust by Megan’s Attorneys of Record
after deduction of their attorney and own client costs.
8.3 All donations and inheritances donated or bequeathed to the Trust.
8.4 All assets that the Trust may purchase with its own funds, or borrowed
funds that may be acquired by any other juristic act.
8.5 All assets that may be allocated to the Trust in terms of an Order of Court.
INCOME FROM THE TRUST:
9.
The income of the Trust will be all income earned by means of the Trust’s assets.
POWERS OF THE TRUSTEE:
1 0 .
10.1 To enable the Trustee to comply with all obligations in terms of the
Deed of Trust, the Trustee will be entitled:-
10.1.1 To perform any act in general, whatsoever, that is according to
the Trustee’s opinion, beneficial for the preservation and
growth of the assets of the Trust, or in the interest of the
Beneficiary. The powers entrusted to the Trustee according to
the paragraphs hereinafter do not limit the generality of this
sub- paragraph;
10.1.2 To use any part of the assets or income of the Trust for
payment of any costs reasonably incurred by the Trustee in
relation to the Trustee’s duties and obligations as Trustee;
10.1.3 (a) To invest the assets or income of the Trust or any part
thereof, in such a manner as the Trustee may deem
proper in the Trustee’s discretion.
(b) Without detracting from the generality of the aforementioned clause,
the Trustee will be entitled to invest in shares in public companies,
building societies, loans with security, investments in state and
municipal shares, investments in fixed property or any such assets as
the Trustee may deem beneficial to the Trust and its beneficiary,
which will also include moveable assets of whatsoever nature if
deemed reasonably to the benefit of the beneficiary. Such movable
assets may be used or consumed by the Trustee if, in the Trustee’s
discretion, it is deemed to be reasonably in the interest of the
beneficiary.
(c) The Trustee will furthermore be entitled to call up any investments, to
make any investments solvent, to convert, amend, realise and to re-
invest such investments in any manner reasonably deemed
appropriate;
10.1.4 If the Trustee practices a profession and in such capacity performs any other
act or service on behalf of the Trust in such capacity, the Trustee will be
remunerated for the Trustee’s professional services rendered without limiting
or reducing the Trustee’s right to remuneration as stipulated hereinafter;
10.1.5 To institute legal and arbitration proceedings and to oppose same in any
competent court with regard to any matter forthcoming from the Trust and to
pay the costs incurred in relation thereto from the assets or income of the
Trust;
10.1.6 To purchase, sell, let, hire or to hire-purchase any assets;
10.1.7To reasonably acquire or renounce, in any manner whatsoever, rights on
behalf of the Trust where such actions are in the best interest of the Trust;
10.1.8 To acquire money through a loan or expend money by way of a loan on any
conditions and against proper security being furnished where money is
expended by way of a loan;
10.1.9 To encumber any assets of the Trust by way of a bond, pledge, hypothec or
session as security;
10.1.10 To perform all acts on behalf of the Trust which may be necessary to effect
transfer of any assets of the Trust;
10.1.11 To grant extensions for the complying with any duty towards the Trust, to
reach compromises and oppose claims against the Trust, to recognise, and
settle same and to handle any claims in favour of the Trust in the same
manner;
10.1.12 To employ people to perform any act and to remunerate them from the
assets or income of the Trust. The possibility that the
Trustee would have been able to perform such act personally does not
detract from the aforementioned entitlement;
10.1.13 To utilise the assets and income of the Trust in such a manner as the
Trustee may deem proper for the conservation, maintenance or
replacement of any assets of the Trust and to demolish any buildings if
deemed appropriate by the Trustee to erect new buildings on the fixed
property of the Trust;
10.1.14 (a) To exercise such voting right as the Trustee might deem appropriate,
with regard to any shares which belong to the Trust and are held in any
company or society.
(b) The exercise of the Trustee’s discretion and authority hereunder is
not reduced where the Trustee directly or indirectly has an interest
in such company or society, neither will such Trustee due to the
confidential relationship with the Trust be obliged to give account of
any benefit, which accrues to the Trustee due to such interest
either directly or indirectly, nor is any act, agreement or deed of the
Trustee void or voidable on the ground that the Trustee received
such benefit.
(c) The object of this clause is to avoid that the consequences of
voidability or voidness due to the confidential office of the Trustee
will supervene and insofar as it may affect agreements and
relationships with companies and societies in which the Trustee
has a personal interest;
10.1.15 To lend money to any person or legal entity on such conditions as the
Trustee in the Trustee’s absolute discretion may stipulate on the
condition that proper security is provided by the lender;
10.1.16 To enter into insurance contracts and to pay the premiums from the
assets of the Trust;
10.1.17 To pay the debts of the Trust;
10.1.18 To accept or refuse donations and inheritances to the Trust;
10.1.19 To open a bank account and to borrow money from a bank on the
overdraft facility or otherwise;
10.2 10.2.1 Notwithstanding any contrary stipulation in this Deed, the Trustee will
not be entitled to dispose of any assets or income of the Trust for the
Trustee’s own benefit or the benefit of the Trustee’s estate.
10.2.2 Without detracting from the generality of the aforementioned the
Trustee will specifically not be entitled or authorised to appropriate or
to dispose of any of the assets or income of the Trust as the Trustee’s
own, as the Trustee deems fit, if by doing so this will benefit the
Trustee or the Trustee’s estate directly or indirectly.
10.2.2 The Trustee will furthermore not be authorised to use or consume
any of the assets of the Trust directly or indirectly, for the Trustee’s
own benefit unless so authorised by the Master of the High Court of
South Africa;
10.3 10.3.1 If the Trust shows drastic growth and if the administration thereof
requires it, the Trustee will be entitled to employ a person or
persons, full time or part time, to assist with the administration of
the Trust and in this respect the Trustee will be entitled to pay a
reasonable salary or remuneration, which the Trustee in the
Trustee’s discretion deems appropriate, to such a person or
persons.
10.3.2 Control and care over the Trusts assets will however always be the
responsibility of the Trustee.
BOOKKEEPING:
11.
11.1 The Trustee must keep a complete set of accounting records with regard
to the affairs of the Trust;
11.2 The Trustee will ensure that the accounting records of the Trust are audited
by a chartered accountant and that such accountant will have free access to the
books, documentation and assets of the Trust.
APPLICATION OF INCOME:
12.
The Trustee will use the income of the Trust to pay the administration costs
for the administration of the Trust and to realise the objectives of the Trust.
DUTIES OF THE TRUSTEE:
13.
The Trustee will have the following duties:
13.1 To as far as possible endeavour to realise the objectives of the Trust;
13.2 To open a current account with a registered commercial bank of the
Trustee’s choice, which account will be used for the receipt of all cash which
is paid to the Trust;
13.3 To invest and reinvest the funds of the Trust in such a manner as the
Trustee may deem fit in shares, securities or any assets of whatsoever
nature including fixed property or bonds;
13.4 To amend, regroup or reinvest the investments in such a manner and on
such conditions and for such objectives as the Trustee in the
Trustee’s sole discretion may deem appropriate;
13.5 To see to it that proper minutes of all decisions made by the Trustee, are
kept in a safe place;
13.6 To see to it that the financial statements of the Trust for each year are kept
in safe custody for the period of the existence of the Trust;
13.7 To see to it that all contracts are fulfilled;
13.8 To make all payments that may be payable on the income of the Trust;
13.9 To see to it that the set of books that he must open and keep will
immediately become operational and at the same time appoint a firm of
auditors for the Trust as soon as the Master of the High Court has registered
this Deed;
13.10 To see to it that the firm of auditors that is appointed for the Trust will at all
times have free access to the books and accounts and vouchers of the Trust
and the Trustee further undertakes to obtain such information as the
auditors may require and to make same available to the firm of auditors and
if explanations are required, to provide same.
APPOINTMENT OF THE TRUSTEES:
14.
The following people will be incompetent to act as Trustee of this Trust:
18,
14.1 Any person who is incompetent to act as a director of a company in terms
of the stipulations of the relevant Company Laws of the Republic of South
Africa;
14.2 Any person who is an unrehabilitated insolvent;
14.3 Any person who has previously been removed as a Trustee from a trust
due to his/her misadministration of the said Trust;
14.4 Any person who has previously been found guilty, in the Republic of South
Africa or elsewhere, of theft, fraud, forgery, perjury, corruption or any
misconduct or offence where dishonesty was an element of and resulted
in that person being found guilty;
14.5 Any person who has been declared mentally ill or incapable of managing
his/her own affairs.
TERMINATION OF THE TRUST:
15.
The Trust will be terminated with the death of Megan, or when the Master of the
High Court of South Africa orders it so, whichever event may happen first.
DISSOLUTION OF THE TRUST:
16.
20.
1.
On termination of the Trust, the Trust will be liquidated and the capital will be
allocated according to the stipulations of clause 6.4 above or as otherwise ordered,
after all the administrative costs and debts as well as claims against the Trust have
been paid.
EXEMPTIONS:
17.
With regard to the aforementioned the following exemptions will be applicable:
17.1 No Trustee will be incapable due to his/her office as Trustee of this Trust, to
enter into a contract with the Trust or any company in which the Trust has an
interest. Furthermore any contract entered into between the Trust and such
company will not be void due to the Trustee’s interest in the company. The only
requirement with regard hereto, is that the Trustee must before any
negotiations are entered into, disclose his/her interest in the contract or entity,
to the Master of the High Court of South Africa before such negotiations take
place;
17.2 Any Trustee, who is a member of or a partner in a firm of professional
practitioners, may be employed by the Trust or render services for the Trust
and in such instance the Trustee will be entitled to a fee in his/her professional
capacity;
17.3 No Trustee will be requested to make good any damages that the Trust may
have suffered, regardless of how such damage was caused, with the exception
18,
of such damage that was caused by the dishonesty of a Trustee or as a result
of his/her negligence;
17.4 No Trustee will be liable for any dishonesty or wrongful act committed by any
of the other Trustees unless such a Trustee had knowledge thereof and
allowed such dishonest acts or acted as an accessory, or could have
prevented such act but negligently failed to do so;
17.5 The Trustee shall be indemnified out of the assets of the Trust with regards
to any claims that may be instituted against her/him personally and which result
from the reasonable acts of the Trustee and the exercise of any of his/her
competencies which he/she is entitled to exercise in terms of this Deed;
REMUNERATION:
If the Trustee is a professional person, he/she will be entitled to his/her reasonable
professional fees for any professional work done for the Trust. Such fees will
include any fees that are reasonably payable to his/her partners and he/she will
further be entitled to make use of the services of other similar professional people
as also auditors, medical doctors, attorneys and advocates. With regard to services
rendered by the Trustee for the general administration of the Trust and
arrangements which he/she will make with regard to the care of Megan, the
Trustee will be entitled to a yearly fee as stipulated in the relevant legislation of the
Republic of South Africa.
20.
1.
MARRIAGE:
19.
All the benefits that Megan is entitled to in terms of this Deed of Trust are for all
purposes excluded from any community of property or any community of profit and
loss. The accrual system in terms of the Matrimonial Property Act, 88 of 1984, is
not applicable to any benefit hereunder. It may not be seized for the debts or
liabilities of any spouse of Megan and may not form part of any insolvent estate of
such a spouse or vest in the curator of such insolvent estate.
ACCEPTANCE:
The Trustee hereby accepts the donation made according to this Deed
subject to the conditions of this Deed and further undertakes to realise the
objectives of this Trust Deed.
AS WITNESSES:
1. ______________________________
___________________
DONOR
2. ______________________________
SIGNED at PRETORIA on this the____day of_____2013.
3
AS WITNESSES:
1. ______________________________
___________________
TRUSTEE
2. ______________________________
i QOD, Vol 5, [Service 5, 2007] Unions Government (Minister of Railways
& Harbours) v Warneke 1911 AD 657, Whitfield v Phillips 1957(3) SA 318
(AA) on 329, Gugerheim v Rosenbaum (2) 1961(4) SA 21 (W) on 34 G-H,
Burger v Unions National South British Insurance Company, 1975(4) SA 72
(W) on 74H-75G; Van Oudtshoorn v Northern Assurance Co Limited 1963(2)
SA 642 A 650-651 ii Supra, par 9 13-18; See also matters referred to in that par iii Van Der Merwe, supra 13-9, par [11] & [12] iv Van Der Merwe, supra 13-21-22 par [19] par [20], Poo v President
Insurance Co Limited, Corbett & Honey iv A3-96
v Supra 1984(1) SA 98 (A) par [127] and [128]; Van Staden v President Insurance Company Limited (1990) 4 QOD L2-
1 (W) at 12-25; Sgata v Road Accident Fund (2001) 5 QOD A2-1 (E) at A2-9; Du Pissanie NO v De Jongh
(2002) 5 QOD B4-109 (C) at B4-140; Road Accident Fund v Reynolds (2005) 5 QOD D3-1 (W) at D3-7
vi [1973] 3 All ER 463 (CA) vii Klaas v Union & South West Africa Insurance Company Limited 1981(4)
SA 562 (A); General Accident Versekeringsmaatskappy SA Beperk v Uiys NO
1993(4) SA 228 (A) 236-237; Webster and Others v Commercial Union
Insurance Company of SA Limited 91997) 4 QOD A4-154 (C) at A4-156;
Zarrabi v The Road Accident Fund 92006) 5 QOD B4-231 (T) at B4-244 to
B4-246 viii Supra, at A4-156 ix Wessels v AA Onderlinge Assuransie & Assosiasie (1989) 4 QOD A3-19
(T) at 3-33; Van Der Merwe, supra 13- 34, Mohlaphuli NO v The South
African National Road Agency Limited (2013) 6 QOD 146 (WCC) A4-181 -
A4- 184; Rabie v The MEC for Education, Gauteng (NGD) case no
3203/2005; 8 August 2013 x Supra par 75 pp 13-37 = 13-38 xi Van Der Merwe, supra p 13-38 13-39 par [79] xii Van Der Merwe, supra, par 54 13-32 xiii Supra, par 50 p 13-29 to 13-30 xiv Supra p 83 p 13-40 xv Supra par [90] and [91] on p 13-42 xvi Supra
xvii Bartlett v Mutual & Federal (1989) 4 QOD A4-20 (T) at A4-27 to A4-28; Matthyssen NO v Road Accident Fund
(1999) 4 QOD B4-23 (T) at B4-33; Zarrabi supra , Van Der Merw, supra 13-53; De Bruyn v Road Accident Fund
[2003] 5 QOD J2-69 (W) at J2-77; Radebe v Road Accident Fund [2013] v 6 QOD 220 (GNP) at 4-223
xviii Supra par [126], [128] and [129] xix Van Der Merwe supra, par 46 on p 13-28 xx (2001) 5 QOD 13-1 C AFC xxi Patensie Sitrus Beheerraad Beperk v Competitions Commission & Others
2003 (6) SA 474 (CC) 501; Lornadawn Investments (Pty) Limited v
Minister van Landbou 1977(3) SA 615 (T) xxii Yanga Fulshane, Exploration of Employment Experiences of Students
with Disabilities