Sidwell N.O. v du Buisson N.O. and Others (4944/2014) [2016] ZAFSHC 82 (13 May 2016)

Sidwell N.O. v du Buisson N.O. and Others (4944/2014) [2016] ZAFSHC 82 (13 May 2016)

The court found that the proposed appeal raised important questions of law regarding the validity of trustee resignation and the effect of defects in powers of attorney. Although factual findings were involved, the legal issues were of general application and subject to differing opinions, warranting consideration by the Supreme Court of Appeal. The court concluded that there was a reasonable prospect of success and granted leave to appeal to the Supreme Court of Appeal. Costs of the application for leave to appeal were ordered to be costs in the appeal.

Citation
[2016] ZAFSHC 82
Parties
Applicant: Thakeli Thubaka Sidwell N.O.; Respondent: Phillipus Martinus du Buisson N.O.; Respondent: Sanet du Buisson N.O.; Respondent: N.O. Oelofse Attorneys; Respondent: Standard Bank of South Africa; Respondent: Tshepo Paulos Botsane N.O.; Respondent: Tshepo Benedict Sebutsoe N.O.; Respondent: Registrar of Deeds, Bloemfontein; Respondent: Master of the High Court, Bloemfontein; Respondent: Rural Development and Land Reform Department, Bloemfontein
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
13 May 2016
Case Number
4944/2014
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment and Orders Cancelling Transfer and Registration of Property.
Outcome
Leave to appeal granted to the Supreme Court of Appeal against the whole judgment and orders made on 18 August 2015. Costs of the application for leave to appeal are costs in the appeal.
Judges
Van Zyl
Legal Topics
Trustee Resignation, Validity of Resolution, Power of Attorney Defects, Leave to Appeal, Deeds Registries Act, Superior Courts Act
Land and Property Civil Procedure Trustee Resignation Validity of Resolution Power of Attorney Defects Leave to Appeal Deeds Registries Act Superior Courts Act

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Parties

Thakeli Thubaka Sidwell N.O.

Applicant

Phillipus Martinus du Buisson N.O.

Respondent

Sanet du Buisson N.O.

Respondent

N.O. Oelofse Attorneys

Respondent

Standard Bank of South Africa

Respondent

Tshepo Paulos Botsane N.O.

Respondent

Tshepo Benedict Sebutsoe N.O.

Respondent

Registrar of Deeds, Bloemfontein

Respondent

Master of the High Court, Bloemfontein

Respondent

Rural Development and Land Reform Department, Bloemfontein

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment and Orders Cancelling Transfer and Registration of Property.

Legal Issues

  1. 1 Whether Mr Stone's resignation as trustee of the TBS Family Trust was valid and complied with the Trust deed and statutory requirements.
  2. 2 Whether the defect in the power of attorney was substantive or merely formal, and whether it invalidated the transfer.
  3. 3 Whether leave to appeal should be granted to the Supreme Court of Appeal based on reasonable prospects of success and the importance of the legal questions involved.

Ratio Decidendi

The court found that the proposed appeal raised important questions of law regarding the validity of trustee resignation and the effect of defects in powers of attorney. Although factual findings were involved, the legal issues were of general application and subject to differing opinions, warranting consideration by the Supreme Court of Appeal. The court concluded that there was a reasonable prospect of success and granted leave to appeal to the Supreme Court of Appeal. Costs of the application for leave to appeal were ordered to be costs in the appeal.

Court Disposition

Leave to appeal granted to the Supreme Court of Appeal against the whole judgment and orders made on 18 August 2015. Costs of the application for leave to appeal are costs in the appeal.

Orders

  • The third respondent is granted leave to appeal to the Supreme Court of Appeal against the whole judgment and orders made on 18 August 2015.
  • The costs of the application for leave to appeal are costs in the appeal.