E.B.L v N.E.K and Another (64416/2009) [2022] ZAGPPHC 936 (25 November 2022)

E.B.L v N.E.K and Another (64416/2009) [2022] ZAGPPHC 936 (25 November 2022)

The court found that, given the severe disability of the minor, the estrangement and acrimony between the parents, and the applicant's lack of expertise in trust administration, the best interests of the minor required the creation of a protective trust administered by an independent professional trustee. The respondent's conduct throughout the litigation was obstructive and self-interested, and his proposed trust deed was found to be restrictive, offensive, and contrary to the minor's welfare. The court amended the applicant's draft trust deed to further limit the trustee's powers, exclude unnecessary provisions, and ensure proper oversight. Costs incurred for the protection of the...

Citation
[2022] ZAGPPHC 936
Parties
Applicant: E[....] B[....] L[....]; Respondent: N[....] E[....]2 K[....]; Curator Ad Litem: Adv M W Dlamini SC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 November 2022
Case Number
64416/2009
Procedural Posture
Civil Application / Implementation Application Following Settlement of Damages Claim
Outcome
Application granted. Protective trust to be created and administered by an independent professional trustee. Costs allocated as per orders.
Judges
N Davis
Legal Topics
Protective Trusts for Minors, Appointment of Trustee, Costs Orders, Medical Negligence Settlement
Family and Children Civil Procedure Protective Trusts for Minors Appointment of Trustee Costs Orders Medical Negligence Settlement

Case Brief

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Parties

E[....] B[....] L[....]

Applicant

N[....] E[....]2 K[....]

Respondent

Adv M W Dlamini SC

Curator Ad Litem

Procedural Posture

Civil Application / Implementation Application Following Settlement of Damages Claim

Legal Issues

  1. 1 How should the nett proceeds of a damages claim in favour of a severely disabled minor be protected and administered for the minor's benefit.
  2. 2 Whether the parents, given their estrangement and acrimony, should be appointed as trustees or whether an independent professional trustee is appropriate.
  3. 3 What terms and powers should be included in the trust deed to ensure proper administration and protection of the minor's interests.

Ratio Decidendi

The court found that, given the severe disability of the minor, the estrangement and acrimony between the parents, and the applicant's lack of expertise in trust administration, the best interests of the minor required the creation of a protective trust administered by an independent professional trustee. The respondent's conduct throughout the litigation was obstructive and self-interested, and his proposed trust deed was found to be restrictive, offensive, and contrary to the minor's welfare. The court amended the applicant's draft trust deed to further limit the trustee's powers, exclude unnecessary provisions, and ensure proper oversight. Costs incurred for the protection of the...

Court Disposition

Application granted. Protective trust to be created and administered by an independent professional trustee. Costs allocated as per orders.

Orders

  • The balance of the damages paid by the defendants in Case No 64416/2009, less attorney and client fees and specified costs, shall be paid over to a Trust created in accordance with the amended draft Trust Deed.
  • The Trust shall manage and administer the nett damages and any income for the benefit of T[....] L[....] as sole beneficiary.