Retief and Another v Wessels and Others (603/2007) [2007] ZAFSHC 71 (20 September 2007)

Retief and Another v Wessels and Others (603/2007) [2007] ZAFSHC 71 (20 September 2007)

The applicants failed to provide valuations of the property at the time the will took effect or at the time of their grandfather's death, making it impossible to assess whether the value has materially depreciated or appreciated as required by section 3(1)(c) of the Act. The evidence presented does not establish that circumstances materially affecting the value of the property have arisen which were not contemplated by the testator. The poor state of the homestead and fencing on one farm does not prove overall depreciation of the property, especially given the respondents' evidence of proper farming operations and rehabilitation of grazing lands. The applicants' complaints regarding...

Citation
[2007] ZAFSHC 71
Parties
Applicant: Marthie Johanna Retief; Applicant: Cornelis Janse Retief; Respondent: Elizabeth Anna Wessels; Respondent: Elizabeth Anna Wessels N.O.; Respondent: Elizabeth Anna Du Toit N.O.; Respondent: Elizabeth Anna Du Toit; Respondent: Betsie Du Toit; Respondent: Elsa Du Toit; Respondent: Kotie Du Toit; Respondent: Registrar of Deeds, Pietermaritzburg; Respondent: Registrar of Deeds, Bloemfontein; Respondent: Master of the High Court, Bloemfontein
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
20 September 2007
Case Number
603/2007
Procedural Posture
Review Application / Application for Removal of Restriction Under Section 2(1) of the Immovable Property (removal or Modification of Restrictions) Act
Outcome
Application dismissed with costs.
Judges
H.M. Musi
Legal Topics
Fideicommissum Removal, Immovable Property Restrictions, Valuation of Property, Succession, Motion Proceedings
Land and Property Civil Procedure Fideicommissum Removal Immovable Property Restrictions Valuation of Property Succession Motion Proceedings

Case Brief

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Parties

Marthie Johanna Retief

Applicant

Cornelis Janse Retief

Applicant

Elizabeth Anna Wessels

Respondent

Elizabeth Anna Wessels N.O.

Respondent

Elizabeth Anna Du Toit N.O.

Respondent

Elizabeth Anna Du Toit

Respondent

Betsie Du Toit

Respondent

Elsa Du Toit

Respondent

Kotie Du Toit

Respondent

Registrar of Deeds, Pietermaritzburg

Respondent

Registrar of Deeds, Bloemfontein

Respondent

Master of the High Court, Bloemfontein

Respondent

Procedural Posture

Review Application / Application for Removal of Restriction Under Section 2(1) of the Immovable Property (removal or Modification of Restrictions) Act

Legal Issues

  1. 1 Whether the requirements for removal of a fideicommissum under section 2(1) and 3(1) of the Immovable Property (Removal or Modification of Restrictions) Act are satisfied.
  2. 2 Whether circumstances materially affecting the value of the property have arisen which were not contemplated by the testator.
  3. 3 Whether removal of the restriction would be in the interests of the applicants or in the public interest.

Ratio Decidendi

The applicants failed to provide valuations of the property at the time the will took effect or at the time of their grandfather's death, making it impossible to assess whether the value has materially depreciated or appreciated as required by section 3(1)(c) of the Act. The evidence presented does not establish that circumstances materially affecting the value of the property have arisen which were not contemplated by the testator. The poor state of the homestead and fencing on one farm does not prove overall depreciation of the property, especially given the respondents' evidence of proper farming operations and rehabilitation of grazing lands. The applicants' complaints regarding...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicants are to pay the costs of suit jointly and severally, the one paying the other to be absolved.