Pretoria - Retired Springbok Joost van der Westhuizen has lived two years longer than his doctors had predicted – and life is an uphill battle for him.
It was for this reason that he desperately needed the money from his former attorney’s trust account for his care.
Van der Westhuizen's attorney Ferdinand Hartzenberg said his client was relieved and grateful that the high court in Pretoria had ruled in his favour.
Acting Judge Lester Adams ordered the Attorneys Fidelity Fund to immediately pay Van der Westhuizen the R385 665 which was in Robert Klinkenberg’s trust account when he allegedly committed suicide in December.
Van der Westhuizen turned to court for an urgent order after Fidelity turned down his claim for the money.
The fund said he did not fall under the provisions of the Attorneys Act, which would permit it to pay him.
According to its board, Van der Westhuizen invested his money with Klinkenberg and he thus had to claim it back from the deceased lawyers’ estate.
The former Bok captain said he did not invest the money with Klinkenberg, but the latter had offered to keep it in a trust so that he could get quick access to it when he needed it.
Van der Westhuizen said it was not viable to invest the money because he wasn't sure how long he had to live and he needed immediate access to it to pay his bills.
It was argued on his behalf that he could not wait to claim from the estate because he urgently needed whatever money he had available.
He was dependent on the money for medical treatment and care, which cost vast sums daily.
The court was this week told that it would be “too little, too late” if he had to wait to get his money.
Hartzenberg said it would in any event serve no purpose if they claimed from Klinkenberg’s estate, as it was insolvent. There were allegations of a shortfall of up to R200 million on his trust account at the time of his death.
Van der Westhuizen suffers from motor neuron disease – an incurable condition – and has lost most of his bodily functions.
He can communicate only through his eyes with the help of technology.
He is unable to consume food without it being liquidised and receives the necessary nutrition medically through a pipe fitted by a doctor.
Judge Adams commented that the application was literally a matter of life and death for Van der Westhuizen, as he has outlived his life expectancy.
The court was told that Klinkenberg illegally misappropriated the money held in his trust account, which included Van der Westhuizen’s money.
Judge Adams said that given the circumstances, the inescapable conclusion and the most plausible inference to be drawn was that Klinkenberg had stolen Van der Westhuizen’s money.
“It can also safely be accepted that the object of the placement of the funds with the attorney had very little, if anything, to do with the investing of funds.
"The applicant said he was terminally ill at the time and an investment would have served no purpose.”
Hartzenberg, meanwhile, said Van der Westhuizen was doing well under the circumstances. “He is in good spirits and positive. Although his body has been affected by his illness, his mind is still sharp. He has around-the-clock care and thus urgently needs the money.”