Ngozo v Road accident Fund (21866/2012) [2013] ZAGPJHC 396 (19 November 2013)

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

(REPUBLIC OF SOUTH AFRICA)

CASE NO: 21866/2012

DATE: 19 NOVEMBER 2013

In the matter between:

NGOZO: SEBUSISO PATRICK......................................Plaintiff

And

ROAD ACCIDENT FUND ….......................................Defendant

The Honourable Judge Weiner

DRAFT ORDER

Having heard counsel and having read the papers filed of record, the following order is granted: -

1. The Defendant is ordered to pay the plaintiff’s attorney of record the sum of R3 087 922.00 to be held in an interest bearing account pending the formation of a trust for the benefit of the plaintiff to be paid over to the trustees of such trust upon the formation thereof.

2. The matter of general damages is referred to the tribunal, as envisaged in Section 17(1), read with Regulations 3(1), of the Road Accident Fund Act 56 of 1996.

3. The Defendant furnishes the plaintiff with an undertaking as envisaged in terms of S17(4)(a) of the Road Accident Fund Act 56 of 1996 in respect of 80% of the costs of the future accommodation of the plaintiff in a hospital or nursing home or treatment of or rendering of a service to him or supplying of goods to him arising out of the injuries sustained by him in a motor vehicle accident which occurred on 16 December 2009, inclusive but not limited to the treatment as set out in the expert witness reports of the expert witnesses referred to in paragraphs 41.-4.9 hereinafter.

The costs aforesaid shall further include the costs in respect of the creation and administration of a trust to be formed in order to manage and administer the compensation payable to the plaintiff referred to in paragraph 1 hereinbefore upon such costs having been incurred, which costs shall be limited to the costs and fees chargeable by curator bonis.

4. That the plaintiff’s attorneys AF Van Wyk Attorneys:

4.1. Cause a trust to be established in accordance with the provisions of the Trust Property Control Act, No. 47 of 1988;

4.2. Invest the net capital amount referred to in paragraph 1hereinbefore upon payment thereof to the plaintiff’s attorneys in terms of Section 78(2) of the Attorneys

4.3. Act, 53 of 1997, for the sole benefit of the plaintiff; That the trust instrument, contemplated in paragraph 3.1., hereinbefore, shall make provision for the following:

4.3.1 The plaintiff to be the sole beneficiary;

4.3.2. The nomination of the first trustee, Ronald Hermann Meyeridricks (ID No.441127 5028 004);

4.3.3. The trustee of the trust to be formed to take all the requisite steps to secure an appropriate Bond of Security to the satisfaction of the Master of the High Court for due fulfilment of his obligations and to ensure that such Bond of Security be submitted to the Master of the High Court at the appropriate times as well as to all other interested parties;

4.3.4 The remuneration of the trustee at a rate equivalent (and not exceeding) to that of a curator bonis as contemplated by the Administration of Estates Act 166 of 1965;

4.3.5. The duty of the trustee to disclose any personal interest in any transaction involving the trust property;

4.3.6. The exclusion of contingent rights of the beneficiary in the event of cession, attachment or insolvency of the beneficiary, prior to the distribution or payment thereof by the trustee to the beneficiary;

4.3.7. Procedures to resolve any deadlock between the trustees subject to the review thereof by this Honourable Court;

4.3.8. The termination of the trust only upon the death of the plaintiff, in which event the trust property shall pass to the estate of the plaintiff;

4.3.9 The amendment of the trust instrument to be subject to the leave of this Honourable Court.

4.4. The provisions referred to in paragraph 3.3. Hereinbefore, shall in accordance with the provisions of the Trust Property Control Act aforesaid, where necessary, be subject to the approval of the Master.

5. The Defendant is ordered to pay the plaintiff’s taxed or agreed party and party costs on the High Court scale, save for the costs of 10th of June 2013 and 11th of June 2013, which costs the defendant is ordered to pay on the scale as between attorney and own client, and which costs are to include the costs of the employment of senior counsel as well as the preparation, qualifying and attendance fees, if any, of the following expert witnesses;

5.1. Dr J J van Niekerk (orthopaedic surgeon);

5.2. Ms J van der Berg (occupational therapist);

5.3. Ms I M Hattingh (speech therapist);

5.4. Dr C M Lewer-Allen (neurosurgeon);

5.5. Dr D A Shevel (psychiatrist)

5.6. Dr C Angus (clinical and neuropsychologist)

5.7. Dr P B White (plastic and reconstructive surgeon);

5.8. Mr L Linde (industrial psychologist);

5.9. Ms A Mattheus (educational psychologist);

5.10. Mr G W Jacobson (actuary)

BY ORDER OF THE COURT

REGISTRAR