Heinze v Burger and Others (1202/2012) [2018] ZANCHC 79 (2 November 2018)

Heinze v Burger and Others (1202/2012) [2018] ZANCHC 79 (2 November 2018)

The applicant failed to establish legal standing in his founding affidavit, as he was neither an heir in terms of the will nor a party to the sale agreement. His subsequent reliance on constitutional rights and trust beneficiary status was not raised in the founding papers and cannot be considered at this stage. The explanation for the delay in filing the application for leave to appeal was unsatisfactory, but condonation was granted in the interests of justice. However, the appeal lacks reasonable prospects of success, as the issue of standing is decisive. The costs order against the applicant was justified, following the general principle that costs follow the result, and no...

Citation
[2018] ZANCHC 79
Parties
Applicant: Bernard William Heinze; Respondent: Jacobus Adriaan Burger; Respondent: Engela Susanna Burger NO; Respondent: ABSA Bank; Respondent: Registrar of Deeds; Respondent: Duncan & Rothman Inc.; Respondent: Master of the High Court; Respondent: Frederik Jacobus Senekal NO; Respondent: Anthony Donald Wood Crozier; Respondent: Klaus Heinze
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
2 November 2018
Case Number
1202/2012
Procedural Posture
Leave to Appeal / Application for Condonation and Leave to Appeal Following Dismissal of Main Application
Outcome
Application for condonation granted; application for leave to appeal dismissed with costs.
Judges
C J Olivier
Legal Topics
Locus Standi, Condonation, Leave to Appeal, Costs Order, Testamentary Trust, Administration of Estates
Civil Procedure Locus Standi Condonation Leave to Appeal Costs Order Testamentary Trust Administration of Estates

Case Brief

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Parties

Bernard William Heinze

Applicant

Jacobus Adriaan Burger

Respondent

Engela Susanna Burger NO

Respondent

ABSA Bank

Respondent

Registrar of Deeds

Respondent

Duncan & Rothman Inc.

Respondent

Master of the High Court

Respondent

Frederik Jacobus Senekal NO

Respondent

Anthony Donald Wood Crozier

Respondent

Klaus Heinze

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the applicant has legal standing to seek the relief claimed.
  2. 2 Whether condonation for late filing of the application for leave to appeal should be granted.
  3. 3 Whether there are reasonable prospects of success on appeal.

Ratio Decidendi

The applicant failed to establish legal standing in his founding affidavit, as he was neither an heir in terms of the will nor a party to the sale agreement. His subsequent reliance on constitutional rights and trust beneficiary status was not raised in the founding papers and cannot be considered at this stage. The explanation for the delay in filing the application for leave to appeal was unsatisfactory, but condonation was granted in the interests of justice. However, the appeal lacks reasonable prospects of success, as the issue of standing is decisive. The costs order against the applicant was justified, following the general principle that costs follow the result, and no...

Court Disposition

Application for condonation granted; application for leave to appeal dismissed with costs.

Orders

  • The late filing of the application for leave to appeal is condoned.
  • The application for leave to appeal is dismissed.