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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:

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 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.

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 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 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 Mpumalanga[i], 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 Merwe[ii]:

“[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 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.

[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 regard[iii]:

“[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 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 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 Bailey[v] 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.

[21] In considering whether compensation to family members and relatives should be allowed Lord Denning MR stated as follows in Cunningham v Harrison and Another[vi].

... 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 heading[vii]. In the matter of Webster[viii], 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 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.

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 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 for[ix].

[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.

(ii 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 8-10, 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 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 11-35 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 Merwe[x] a 5% 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 expenses[xi].

(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 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 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 test[xii]. 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 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- DO.

[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.

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 Merwe[xiii] 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 Merwe[xiv] 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 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 Merwe[xv], resulting in an amount of R31 732-00.

[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 8-10)................................................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 71-73)...........................R 186 093-00

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 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 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 Merwe[xvi]. 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 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 equal[xvii].

[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 Merwe[xviii], in line with the graded approach that was adopted pre-morbidly, the post-morbid 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 Merwe[xix] 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.

[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 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 Fund[xx] 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 paragraph[xxi]. 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-examination[xxii]. It must be accepted that sighted Megan 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;

(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:..............................................................................................................R13 314 405-00

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”.

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

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.

7. 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:

10.

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;

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;

10.1.7 To 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.

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.

3. 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.

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:

14. 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;

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.

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:

17.1No 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;

17.2Any 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;

17.3No 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 of such damage that was caused by the dishonesty of a Trustee or as a result of his/her negligence;

17.4No 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;

17.5The 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:

18.

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.

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.

AS WITNESSES:

1.______________________________

___________________TRUSTEE

2. ______________________________

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