The Star E-dition

Help for vulnerable claimants

ZELDA VENTER zelda.venter@inl.co.za

THE Master of the High Court has asked the North Gauteng High Court, Pretoria, for guidance on how to deal with the large number of cash payouts by courts in damages claims.

Another question is whether it is best to establish a trust or appoint a curator where plaintiffs are unable to manage the money themselves.

This is especially in Road Accident Fund (RAF) cases and to a lesser degree, in medical negligence matters where the victims have suffered severe brain damage, and funds must be protected for further use.

In many cases a lump sum, sometimes running into millions, is awarded.

Two legal mechanisms are generally employed to protect the funds in these cases.

The first is the appointment of a curator bonis (a person appointed by the court to manage the funds). The second is the creation of a trust into which the damages award is paid.

The formation of the trust is directed in terms of an order of court.

Both mechanisms are designed to ensure that the protected funds are used for the benefit of the plaintiff’s maintenance, care and other needs.

In both instances, the curator bonis or trustee have fiduciary duties, and are subject to supervision by the Master of the High Court and the court.

The Master earlier submitted a report to the court, seeking guidance on certain issues involving the Master’s supervisory powers over trustees and curators in matters where damages have been awarded.

The Master also identified five cases where specific guidance was sought, which involved RAF matters where the accident victims suffered severe brain damage and could not manage the funds.

Three judges – Raylene Keightley, Anthony Millar and Acting Judge Cinzia Vallaro – who presided over the application, voiced concern that the RAF did not participate in these proceedings. The questions raised by the Master mostly involved RAF claims.

“These were issues in respect of which the RAF could and should have provided crucial input. It is concerning indeed that it saw fit to remain disengaged from the proceedings,” Judge Keightley said in the judgment.

She commented that the court rolls were congested with RAF claims often involving millions.

“These damages are awarded on the basis that the amount will compensate the plaintiff for the salary he/she would have earned but for their injury in an accident … In most cases, once a lump-sum award has been made, a court has no further legal interest in the matter.

“It is open to a plaintiff to spend the entire capital amount awarded as he/ she sees fit. The fact that it is public money that might not be used for its intended purpose may be irksome, but neither the court nor the RAF has any legal basis on which to interfere. A plaintiff is entitled to use her money for whatever they wish.”

However, there are certain categories of cases in which the court retains a legal oversight role in ensuring that damages awards are protected.

These are cases in which minors are recipients of damages awards, or where adult plaintiffs suffer some incapacity which inhibits their ability to properly manage the financial sum awarded.

According to the Master, there are some practical difficulties in implementing court orders.

The Master said the best route to follow was through the appointment of a curator bonis, over whom the office had more extensive supervisory powers, rather than through the establishment of a trust, over which it had less extensive supervisory control.

Judge Keightley said practically, if this court were to agree to the Master’s submission, the effect would be to place an even greater bureaucratic burden on the office.

“The question of whether a curator should be appointed or a trust established is one for a court to consider based on all the facts before it and the motivations that are made for the mechanism proposed by the parties.”

She added that the flexibility of the trust as a mechanism for protecting damages awards may in many cases be beneficial to the plaintiff’s interests.

However, each case must be considered on its own facts, the judge said.

METRO

en-za

2022-08-04T07:00:00.0000000Z

2022-08-04T07:00:00.0000000Z

https://thestar.pressreader.com/article/281715503377918

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