Gowar and Another v Gowar and Others (3392/2012) [2015] ZAECGHC 6 (10 February 2015)

Gowar and Another v Gowar and Others (3392/2012) [2015] ZAECGHC 6 (10 February 2015)

The court found that there are reasonable prospects that another court may find it erred by focusing primarily on allegations of misconduct and not giving proper consideration to the best interests of all beneficiaries as required by section 20(1) of the Trust Property Control Act. The resolution of this issue requires authoritative interpretation of the ambit of section 20(1) and the scope of judicial discretion in trust matters. The court also acknowledged reasonable prospects that another court may differ regarding the sufficiency of grounds for the removal of the second applicant as trustee. Both applications for leave to appeal were granted to the Supreme Court of Appeal to address...

Citation
[2015] ZAECGHC 6
Parties
Applicant: Johanna David Gowar; Applicant: Francois Peter Gowar; Respondent: Reginald David Gowar; Respondent: Trtius Nocolaas van der Walt; Respondent: Master of the High Court
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
10 February 2015
Case Number
3392/2012
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Main Application and Counter Application
Outcome
Leave to appeal granted to the Supreme Court of Appeal for both the applicants and the first and second respondents against the respective dismissals of the main application and counter application.
Judges
J.E Smith
Legal Topics
Trust Property Control Act, Removal of Trustee, Court Discretion, Best Interests of Beneficiaries
Civil Procedure Land and Property Trust Property Control Act Removal of Trustee Court Discretion Best Interests of Beneficiaries

Case Brief

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Parties

Johanna David Gowar

Applicant

Francois Peter Gowar

Applicant

Reginald David Gowar

Respondent

Trtius Nocolaas van der Walt

Respondent

Master of the High Court

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Main Application and Counter Application

Legal Issues

  1. 1 Whether the court erred by focusing mainly on allegations of misconduct rather than the best interests of all beneficiaries as required by section 20(1) of the Trust Property Control Act.
  2. 2 Whether the court erred in accepting that disputes between trustees should be resolved by consensus and not by appointment of independent trustees.
  3. 3 Whether there were good and sufficient grounds for the removal of the second applicant as trustee.

Ratio Decidendi

The court found that there are reasonable prospects that another court may find it erred by focusing primarily on allegations of misconduct and not giving proper consideration to the best interests of all beneficiaries as required by section 20(1) of the Trust Property Control Act. The resolution of this issue requires authoritative interpretation of the ambit of section 20(1) and the scope of judicial discretion in trust matters. The court also acknowledged reasonable prospects that another court may differ regarding the sufficiency of grounds for the removal of the second applicant as trustee. Both applications for leave to appeal were granted to the Supreme Court of Appeal to address...

Court Disposition

Leave to appeal granted to the Supreme Court of Appeal for both the applicants and the first and second respondents against the respective dismissals of the main application and counter application.

Orders

  • The applicants are granted leave to appeal to the Supreme Court of Appeal against the judgment and order dismissing the main application with costs, handed down on 23 September 2014.
  • The first and second respondents are granted leave to appeal to the Supreme Court of Appeal against the judgment and order dismissing their counter application with costs, handed down on 23 September 2014.