Bergh and Another v Van Rensburg NO and Others (17617/09) [2010] ZAGPPHC 132 (23 September 2010)

Bergh and Another v Van Rensburg NO and Others (17617/09) [2010] ZAGPPHC 132 (23 September 2010)

The court found no clear or potential conflict of interest between the applicants and their minor children that would necessitate the appointment of a curator ad litem at this stage. The applicants, as guardians, are capable of representing the children's interests in the litigation. The request for immediate discovery was premature, as factual disputes may require referral to trial, at which point discovery can be ordered under the court rules. The costs order was made in the exercise of judicial discretion, and there is no basis for appellate interference. The order refusing the appointment of a curator ad litem is not final and may be revisited as litigation progresses. Accordingly,...

Citation
[2010] ZAGPPHC 132
Parties
Applicant: Jacobus Wynandt Bergh; Applicant: Maria Louise Bergh; Respondent: Louis Hendrik Janse Van Rensburg N.O (As Trustee of the Marleen van Rensburg Trust); Respondent: Maria Elizabeth Catharina Janse Van Rensburg N.O (As Trustee of the Marleen van Rensburg Trust); Respondent: Jacobus Stephanus Taljaard N.O (As Trustee of the Marleen van Rensburg Trust); Respondent: Louis Hendrik Janse Van Rensburg; Respondent: Maria Elizabeth Catharina Janse Van Rensburg; Respondent: Jacobus Stephanus Taljaard; Respondent: The Master of the High Court; Respondent: Maria Elizabeth Bergh; Respondent: Jacobus Wynandt Bergh; Respondent: Erik Janse Bergh
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 September 2010
Case Number
17617/09
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Part a of the Main Application
Outcome
Application for leave to appeal is dismissed with costs.
Judges
B.R. du Plessis
Legal Topics
Curator Ad Litem Appointment, Trust Beneficiary Rights, Costs Award, Discovery Procedure
Civil Procedure Family and Children Curator Ad Litem Appointment Trust Beneficiary Rights Costs Award Discovery Procedure

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Parties

Jacobus Wynandt Bergh

Applicant

Maria Louise Bergh

Applicant

Louis Hendrik Janse Van Rensburg N.O (As Trustee of the Marleen van Rensburg Trust)

Respondent

Maria Elizabeth Catharina Janse Van Rensburg N.O (As Trustee of the Marleen van Rensburg Trust)

Respondent

Jacobus Stephanus Taljaard N.O (As Trustee of the Marleen van Rensburg Trust)

Respondent

Louis Hendrik Janse Van Rensburg

Respondent

Maria Elizabeth Catharina Janse Van Rensburg

Respondent

Jacobus Stephanus Taljaard

Respondent

The Master of the High Court

Respondent

Maria Elizabeth Bergh

Respondent

Jacobus Wynandt Bergh

Respondent

Erik Janse Bergh

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Part a of the Main Application

Legal Issues

  1. 1 Whether leave to appeal should be granted against the dismissal of Part A of the application.
  2. 2 Whether a curator ad litem should be appointed for the minor children regarding their interests in the trust.
  3. 3 Whether the court erred in refusing immediate discovery.

Ratio Decidendi

The court found no clear or potential conflict of interest between the applicants and their minor children that would necessitate the appointment of a curator ad litem at this stage. The applicants, as guardians, are capable of representing the children's interests in the litigation. The request for immediate discovery was premature, as factual disputes may require referral to trial, at which point discovery can be ordered under the court rules. The costs order was made in the exercise of judicial discretion, and there is no basis for appellate interference. The order refusing the appointment of a curator ad litem is not final and may be revisited as litigation progresses. Accordingly,...

Court Disposition

Application for leave to appeal is dismissed with costs.

Orders

  • Leave to appeal is refused.
  • Applicants are ordered to pay costs on an attorney and client scale.