Pretorius and another v Pretorius NO and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Maumela J
• Judgment Date: 15 March 2023
• Docket Number: 15895/2021
• Hearing Date: 15 March 2023
• Court: North Gauteng High Court, Pretoria

Maumela J:

INTRODUCTION

1.

This is an application for leave to appeal. The applicants seek leave to appeal to the Supreme Court of Appeal alternatively to the Full Court of this Division against the whole of the judgment and order handed down by this Court on the 14th of September 2022 ("the judgment"). Leave to appeal is sought against both the judgment in regard to the counter application as well as the judgment in regard to the application brought by the applicants for an interim interdict ("the main application").

2.

The parties will be referred to as they were in the original application and as they have been referred to in the judgment. Where reference is made to the respondents, this refers to the first and second respondents in the original application.

3.

The judgment was about an application for an interim interdict brought by the applicants as well as the counter application brought by the respondents. The respondents submitted that the fundamental and central basis for the application for leave to appeal and on which virtually all of the grounds stand is that the common cause facts and issues on the papers justified the relief sought in the counter application and a dismissal of the main application.

TEST FOR LEAVE TO APPEAL

4.

It is trite that leave to appeal is sought in terms of Section 17(1)(a) of the Superior Courts Act, 10 of 2013 ("the Superior Courts Act"), which provides as follows:

"(1).

Leave to appeal may only be given where the judge or judges concerned are of the opinion that —

(a). (i).

the appeal would have a reasonable prospect of success; or

(ii).

there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration"

5.

It is so that removal of a trustee has its own requirements as set out in section 20 (1) of the Trust Property Control Act 57 of 1998 ("the Act") as well

2023 JDR 0933 p3

Maumela J

as in the case of Gowar and Another v Gowar and others others [1] which was also confirmed in the recent case of Fletcher v McNair [2] . In that case, the Court sets out principles applicable, as follows:

"(a).

the Court may order the removal of a trustee only if such removal will, as required by s 20(1) of the Act, be in the interests of the Trust and its beneficiaries;

(c).

the power of the Court to remove a trustee must be exercised with circumspection;

(d).

the sufficiency of the...