Ruthven and Another v Botha and Others [2023] ZAGPPHC 446; 29145/2021 (9 June 2023)

Ruthven and Another v Botha and Others [2023] ZAGPPHC 446; 29145/2021 (9 June 2023)

The court found that the applicants failed to demonstrate reasonable prospects of success on appeal. The arguments advanced regarding the jurisdiction of the court and the irreversibility of property transfer were unpersuasive. The applicants had acquiesced in the jurisdiction of the High Court and did not raise lis pendens as a defence at the initial hearing. The indemnity for legal costs remained valid, and the Trust's contingent assets were still assets. The removal of the second applicant as trustee was justified due to his conduct against the interests of the Trust and its beneficiaries. The cost order de bonis propriis was warranted. The application for leave to appeal was dismissed...

Citation
[2023] ZAGPPHC 446
Parties
Applicant: Stephanus Ruthven; Applicant: Stephanus Ruthven N.O.; Respondent: Anja Botha; Respondent: Joey Botha; Respondent: Sarel Johannes Petrus Roux N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 June 2023
Case Number
29145/2021
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment Reviewing and Setting Aside Resolutions and Removal of Trustee.
Outcome
Application for leave to appeal dismissed; costs awarded against second applicant de bonis propriis.
Judges
Noko MV
Legal Topics
Leave to Appeal Test, Trustee Removal, Lis Pendens, Costs De Bonis Propriis, Prescription of Property Rights, Abstract Theory of Transfer
Civil Procedure Family and Children Land and Property Leave to Appeal Test Trustee Removal Lis Pendens Costs De Bonis Propriis Prescription of Property Rights +1 more

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Parties

Stephanus Ruthven

Applicant

Stephanus Ruthven N.O.

Applicant

Anja Botha

Respondent

Joey Botha

Respondent

Sarel Johannes Petrus Roux N.O.

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment Reviewing and Setting Aside Resolutions and Removal of Trustee.

Legal Issues

  1. 1 Whether the applicants have established reasonable prospects of success for leave to appeal against the order reviewing and setting aside trust resolutions and removal of trustee.
  2. 2 Whether the High Court was entitled to adjudicate issues allegedly pending before the Mpumalanga High Court.
  3. 3 Whether the removal of the second applicant as trustee was justified on the facts and law.

Ratio Decidendi

The court found that the applicants failed to demonstrate reasonable prospects of success on appeal. The arguments advanced regarding the jurisdiction of the court and the irreversibility of property transfer were unpersuasive. The applicants had acquiesced in the jurisdiction of the High Court and did not raise lis pendens as a defence at the initial hearing. The indemnity for legal costs remained valid, and the Trust's contingent assets were still assets. The removal of the second applicant as trustee was justified due to his conduct against the interests of the Trust and its beneficiaries. The cost order de bonis propriis was warranted. The application for leave to appeal was dismissed...

Court Disposition

Application for leave to appeal dismissed; costs awarded against second applicant de bonis propriis.

Orders

  • The application for leave to appeal is dismissed.
  • The second applicant is ordered to pay legal costs on attorney and client scale, de bonis propriis.