Ganie and Others v Ganie and Others (9657/2011) [2011] ZAKZDHC 66 (23 December 2011)

Ganie and Others v Ganie and Others (9657/2011) [2011] ZAKZDHC 66 (23 December 2011)

The court found that the removal of the First Applicant as trustee by the Master was invalid, as the First Applicant was not given proper and effective notice of the grounds for removal, nor afforded an opportunity to respond to the complaints or charges against him. The correspondence relied upon by the Master was not properly addressed or delivered, and the decision to remove was precipitate and procedurally unfair. The reasons advanced by the Master for removal were found to be contrived, irrational, or factually incorrect, and did not justify the drastic step of removal. The appointment of the Second Respondent as trustee was consequently invalid, as it was premised solely on the...

Citation
[2011] ZAKZDHC 66
Parties
Applicant: Haroun Siddy Ganie; Applicant: Asif MS Ganie; Applicant: Afzal MS Ganie; Applicant: Yusuf MS Ganie; Applicant: Farazana Jhavary; Respondent: Faizal Mahomed Siddi Ganie; Respondent: Fawzia Amod Sacoor; Respondent: The Master of the High Court, Pietermaritzburg; Respondent: The Registrar of Deeds
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
23 December 2011
Case Number
9657/2011
Procedural Posture
Urgent Application / Opposed Application for Review and Interdictory Relief
Outcome
Application granted; removal of First Applicant as trustee set aside; reinstatement ordered; costs awarded against First and Second Respondents.
Judges
McLaren
Legal Topics
Trust Property Control Act, Removal of Trustee, Procedural Fairness, Judicial Review, Interdict, Costs Orders
Administrative Law Land and Property Civil Procedure Trust Property Control Act Removal of Trustee Procedural Fairness Judicial Review Interdict +1 more

Case Brief

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Parties

Haroun Siddy Ganie

Applicant

Asif MS Ganie

Applicant

Afzal MS Ganie

Applicant

Yusuf MS Ganie

Applicant

Farazana Jhavary

Applicant

Faizal Mahomed Siddi Ganie

Respondent

Fawzia Amod Sacoor

Respondent

The Master of the High Court, Pietermaritzburg

Respondent

The Registrar of Deeds

Respondent

Procedural Posture

Urgent Application / Opposed Application for Review and Interdictory Relief

Legal Issues

  1. 1 Whether the removal of the First Applicant as trustee by the Master (Third Respondent) was valid and lawful.
  2. 2 Whether the appointment of the Second Respondent as trustee was valid.
  3. 3 Whether the First and Second Respondents established grounds for the removal of the First Applicant under section 23 of the Trust Property Control Act.

Ratio Decidendi

The court found that the removal of the First Applicant as trustee by the Master was invalid, as the First Applicant was not given proper and effective notice of the grounds for removal, nor afforded an opportunity to respond to the complaints or charges against him. The correspondence relied upon by the Master was not properly addressed or delivered, and the decision to remove was precipitate and procedurally unfair. The reasons advanced by the Master for removal were found to be contrived, irrational, or factually incorrect, and did not justify the drastic step of removal. The appointment of the Second Respondent as trustee was consequently invalid, as it was premised solely on the...

Court Disposition

Application granted; removal of First Applicant as trustee set aside; reinstatement ordered; costs awarded against First and Second Respondents.

Orders

  • Paragraphs 1.1, 1.2 and 1.3 of the rule nisi granted on 29 August 2011 are confirmed.
  • All reserved costs in the application are costs in the cause.