Bouwer obo M.G v Road Accident Fund (36075/2018) [2021] ZAGPPHC 211; 2021 (5) SA 233 (GP) (26 March 2021)

Bouwer obo M.G v Road Accident Fund (36075/2018) [2021] ZAGPPHC 211; 2021 (5) SA 233 (GP) (26 March 2021)

The court held that only persons with legal guardianship, as defined by the Children's Act and common law, may lawfully conclude contracts such as contingency fee agreements on behalf of minors. The minor's great grandmother, although a de facto caregiver, did not have legal authority to enter into such agreements. The agreements were therefore voidable, if not void, and not in the best interests of the minor. The court further found that the risk in the litigation was negligible, as the minor was a passenger and liability was virtually certain. The proposed trust for the minor's benefit was accepted, but the trust should endure until the minor reaches 25 years of age to ensure maturity...

Citation
[2021] ZAGPPHC 211
Parties
Plaintiff: Bouwer obo M G; Defendant: Road Accident Fund
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 March 2021
Case Number
36075/2018
Procedural Posture
Civil Trial / Quantum Determination After Liability Conceded
Outcome
Plaintiff's claim for loss of future earnings is upheld; contingency fee agreements declared invalid; trust to be created for minor's benefit until age 25.
Judges
Van der Westhuizen
Legal Topics
Guardianship of Minors, Contingency Fee Agreements, Road Accident Fund Act, Loss of Earning Capacity
Family and Children Civil Procedure Guardianship of Minors Contingency Fee Agreements Road Accident Fund Act Loss of Earning Capacity

Case Brief

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Parties

Bouwer obo M G

Plaintiff

Road Accident Fund

Defendant

Procedural Posture

Civil Trial / Quantum Determination After Liability Conceded

Legal Issues

  1. 1 Whether a de facto guardian may lawfully conclude contingency fee agreements on behalf of a minor.
  2. 2 Whether the contingency fee agreements entered into by the minor's great grandmother are valid and enforceable.
  3. 3 Whether the creation of a trust for the minor's benefit is appropriate and the age at which the trust should terminate.

Ratio Decidendi

The court held that only persons with legal guardianship, as defined by the Children's Act and common law, may lawfully conclude contracts such as contingency fee agreements on behalf of minors. The minor's great grandmother, although a de facto caregiver, did not have legal authority to enter into such agreements. The agreements were therefore voidable, if not void, and not in the best interests of the minor. The court further found that the risk in the litigation was negligible, as the minor was a passenger and liability was virtually certain. The proposed trust for the minor's benefit was accepted, but the trust should endure until the minor reaches 25 years of age to ensure maturity...

Court Disposition

Plaintiff's claim for loss of future earnings is upheld; contingency fee agreements declared invalid; trust to be created for minor's benefit until age 25.

Orders

  • Defendant is liable for 100% of plaintiff's proven or agreed damages.
  • Defendant to pay R3,531,486.00 in respect of loss of earnings into the trust account of Gouse van Aarde Incorporated.