Dadabhay and Others v Dadabhay and Others (56836/2007) [2009] ZAGPPHC 180 (26 March 2009)

Dadabhay and Others v Dadabhay and Others (56836/2007) [2009] ZAGPPHC 180 (26 March 2009)

Given the complexity, volume of evidence, number of parties, and substantial disputes of fact regarding trust asset ownership and trustee conduct, the matter cannot be resolved easily or speedily by oral evidence. The proper course is referral to trial, where all parties can present their full versions and the issues can be ventilated comprehensively. The applicants' approach to seek oral evidence was inappropriate, especially as new parties had been joined and their positions were not before the court. Costs are awarded against the applicants for the unsuccessful application for oral evidence and for the fourth respondent's costs from 10 July 2008 to the hearing date.

Citation
[2009] ZAGPPHC 180
Parties
Applicant: Ismail Suliman Dadabhay; Applicant: Fazila Dadabhay Paruk; Applicant: Sayda (aka Saida Banoo) Dadabhay; Applicant: Nafisah Dadabhay Omarjee; Respondent: Ahwied Suliiman Dadabhay; Respondent: Rockeya Suliman Dadabhay; Respondent: Rashid Suliman Dadabhay; Respondent: Akhter Moosa; Respondent: The Master of the High Court; Respondent: IE Dadabhay and Company (Pty) Ltd; Respondent: Littonia Investments (Pty) Ltd; Respondent: Sedson Industries (Pty) Ltd; Respondent: Dadaville Estate (Pty) Ltd; Respondent: SE Dadabhay Family Investment Company (Pty) Ltd; Respondent: 139 Dadaville (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 March 2009
Case Number
56836/2007
Procedural Posture
Civil Application / Referral to Trial Following Interlocutory Application for Oral Evidence
Outcome
Application referred to trial; costs awarded against applicants for interlocutory application and specific costs to fourth respondent.
Judges
Louw
Legal Topics
Referral to Trial, Oral Evidence, Trust Asset Ownership, Removal of Trustee, Joinder of Parties
Civil Procedure Land and Property Commercial and Corporate Referral to Trial Oral Evidence Trust Asset Ownership Removal of Trustee Joinder of Parties

Case Brief

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Parties

Ismail Suliman Dadabhay

Applicant

Fazila Dadabhay Paruk

Applicant

Sayda (aka Saida Banoo) Dadabhay

Applicant

Nafisah Dadabhay Omarjee

Applicant

Ahwied Suliiman Dadabhay

Respondent

Rockeya Suliman Dadabhay

Respondent

Rashid Suliman Dadabhay

Respondent

Akhter Moosa

Respondent

The Master of the High Court

Respondent

IE Dadabhay and Company (Pty) Ltd

Respondent

Littonia Investments (Pty) Ltd

Respondent

Sedson Industries (Pty) Ltd

Respondent

Dadaville Estate (Pty) Ltd

Respondent

SE Dadabhay Family Investment Company (Pty) Ltd

Respondent

139 Dadaville (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Referral to Trial Following Interlocutory Application for Oral Evidence

Legal Issues

  1. 1 Whether the application should be referred to trial or oral evidence under Rule 6(5)(g).
  2. 2 Whether the applicants are entitled to relief regarding the removal of the trustee and determination of trust assets.
  3. 3 Whether the newly joined companies and their shareholdings are assets of the trust.

Ratio Decidendi

Given the complexity, volume of evidence, number of parties, and substantial disputes of fact regarding trust asset ownership and trustee conduct, the matter cannot be resolved easily or speedily by oral evidence. The proper course is referral to trial, where all parties can present their full versions and the issues can be ventilated comprehensively. The applicants' approach to seek oral evidence was inappropriate, especially as new parties had been joined and their positions were not before the court. Costs are awarded against the applicants for the unsuccessful application for oral evidence and for the fourth respondent's costs from 10 July 2008 to the hearing date.

Court Disposition

Application referred to trial; costs awarded against applicants for interlocutory application and specific costs to fourth respondent.

Orders

  • The application is referred to trial.
  • The notice of motion shall stand as a simple summons.