State sets up trust to compensate victim after four year battle

19 Apr 2018

Towards the end of last year, the Pretoria High Court granted judgment in favour of the plaintiff, Advocate JC van Eeden, who is the curator ad litem to 62 year old Prince Mokwalakwala (Prince). This welcome ruling came after four years of vigorous litigation by the legal team of Pretoria based law firm Gildenhuys Malatji Attorneys who had briefed Advocates David Mtsweni and Dolf Mosoma of the Pretoria bar to represent the plaintiff.

Judgment in the matter was granted against the first defendant namely, the Minister of Police, and the second defendant, the National Director of Public Prosecutions. It was the former, however, who bore the brunt of Justice DJP Ledwaba’s ruling on 16 November 2017. Both defendants were represented by the State’s attorney who briefed Advocate L. Mboweni, also of the Pretoria bar, to appear on their behalf.

In this matter, Prince was a victim of circumstance in that he was simply at the wrong place at the wrong time. On the 3rd of March 2010, unbeknown to him, a riot had broken out in the Brits area near his home. At the time, Prince was at his home like any other normal day, and needless to say, he was not part of the riot. As members of the riot attempted to escape the police, they entered Prince’s property and were chased through the back of his house, ultimately resulting in Prince being trapped in his own home.

During the chase, three police officers opened fire using rubber bullets, one of which hit Prince in the groin area. Following the shooting and resultant injury, Prince was arrested and held in police custody for the entire day at Jericho Police Station from where he was subsequently transferred to a prison where he remained in excess of 2 months. Following the incidence, Prince alleged that:

• during his period of incarceration he had written to the office of the second defendant informing them of his predicament; and
• his case was remanded at least 9 times and all the while he was not taken to receive medical attention for his injuries.

More than two months later after being released on bail, Prince sought medical attention from Dr. Nxumalo who confirmed an injury to Prince’s right testicle and assessed the injury as irreversible. It was these facts that formed the cause of action in the plaintiff’s civil claim.

After four years of litigation, the Honourable Court finally ordered that:

• the first defendant was a 100% liable for the agreed or proven damages of the plaintiff;
• the first defendant is to pay the plaintiff an amount of R300, 000.00 within 30 days, failing which it will be liable for interest at a rate of 10.5% per annum from the date of order to date of final payment; and
• the first defendant is to pay all the plaintiff’s attorneys taxed costs of suit including the costs of two counsel, the curator ad litem and the interpreter, within 14 days from the date of taxation/date of settlement, failing which it will be liable for interest at a rate of 10.5% per annum from the date of taxation/date of settlement.

One of the more fundamental rulings made by the court was a creation of a Trust for the sole benefit of Prince. The proceeds of the capital claim will be administered by the Trust which was fittingly named the PRINCE MOKWALAKWALA TRUST.

The main objectives of the trust are to maintain and support all of the physical, academic, medical, accomodatory, nutritional and caregiving needs in addition to the general well-being of the beneficiary during the subsistence of the Trust. Some of the more ancillary objectives of the Trust are to invest and grow its assets thereby ensuring the longevity of the Trust itself.

These and numerous other responsibilities of administrating the Trust will be overseen by the trustee, namely, Celeste Slatter, who is under the employ of the plaintiff’s attorney. The Order of Court enabled the trustee to have unlimited and absolute power in administering the trust to the benefit of Prince in the normal course of business, as well as to an entitlement to draw normal fees as prescribed in the regulations of the Administration of Estates Act 66 of 1965 in relation to fees for a curator bonis as remuneration.

The Trust is expected to support and aid Prince for the duration of his natural life and will only terminate upon his death. At that stage, if he does not leave behind any valid will, the assets of the estate will be transferred and distributed to his intestate heirs in accordance with the South African laws of intestate succession under the Intestate Act 81 of 1987, as amended.

The unfortunate events of the 3rd of March 2010 will always be with Prince. However, it is positive to note that he will at least find some solace in the compensation afforded to him by the Honourable Court that will take care of him for the rest of his days.

Should you find yourself in a dire legal predicament, the attorneys at Gildenhuys Malatji stand ready to help you.

See also:

• Boards of trustees of retirement funds facing a challenge
• Medical Malpractice in South Africa
• Requirements for drafting a valid will in South Africa

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)