The Attorneys Fidelity Fund has been ordered to pay more than R385 000 to the desperately ill former Springbok rugby player Joost van der Westhuizen after his money was stolen by his late attorney.
Van der Westhuizen, who was diagnosed with the deadly and rare Motor Neuron Disease in 2011, took the fund to court after his claim for the money misappropriated by his erstwhile attorney Robert Klinkenberg was turned down in May this year. He said in court papers it was a matter of life and death, and he urgently needed the money just to keep him alive from day to day.
Van der Westhuizen’s attorney Ferdi Hartzenberg said they were very relieved about the ruling, as Van der Westhuizen needed care 24 hours a day, which was very expensive. Klinkenberg was found dead in the veld in Magaliesburg in December last year with a single bullet wound in what appeared to be a suicide. A shortage of millions of rands was discovered in his trust account after his death.
Van der Westhuizen said in court papers the disease attacked the motor neurons in the brain and spine that regulated breathing, speech, swallowing, walking and gripping abilities. He was at present only able to communicate through technology using the movement of his eyes, had to be fed through a tube and was fatally dependent on very expensive medical treatment and care 24 hours a day.
The fund initially rejected his claim on the grounds that it was not liable, as Klinkenberg had been authorised to invest the funds in his capacity as an executor, trustee or curator of Van der Westhuizen’s estate.
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The sportsman approached Klinkenberg, who was handling his divorce from singer Amore Vittone at that stage, to take care of his day to day finances when his health started to deteriorate. The fund in May this year rejected Van der Westhuizen’s claim on the grounds that it was not liable, as Klinkenberg had been authorised to invest the funds in his capacity as an executor, trustee or curator.
Judge Leslie Adams this morning delivered a written judgment in which he ordered the Fund to pay R385 665.46 to Van der Westhuizen, as well as the legal costs of his application.
“It cannot be said that the monies were only deposited into the account of the attorneys only to be invested.
“… By all accounts, the money was paid by the applicant into (an) account for the purpose of investing such monies … on a temporary or interim basis only pending the implementation of any particular matter or transaction which was already in existence or was about to come into existence at the time that the investment was made.
“The evidence of the applicant was that Klinkenberg was at the time assisting him with his divorce and other legal matters. He also assisted the applicant with the administration of his financial affairs.
“… I am of the view that the facts in this matter do not indicate that the applicant’s claim is excluded by Section 47(1)(g) of the (Attorneys) Act.
“I am not persuaded that … Klinkenberg Attorneys were instructed to invest, as defined, the monies paid over a period of time into their account by the applicant,” he said.