Strauss and Others v Van der Walt N.O and Others (87126/2019) [2020] ZAGPPHC 767 (21 December 2020)

Strauss and Others v Van der Walt N.O and Others (87126/2019) [2020] ZAGPPHC 767 (21 December 2020)

The court found that the sale of the immovable property by the first respondent, as executor, was irregular and unlawful because he failed to obtain the necessary consent from the curator or the court as required by Section 80 of the Administration of Deceased Estates Act. The applicants, as residual heirs, have a prima facie right to the property and risk irreparable harm if the transfer is registered before the estate is distributed. The requirements for an interim interdict were satisfied: the applicants established a prima facie right, demonstrated potential irreparable harm, showed that the balance of convenience favoured granting the interim relief, and that no other satisfactory...

Citation
[2020] ZAGPPHC 767
Parties
Applicant: Zelma Strauss N.O; Applicant: Zelma Strauss; Applicant: Sonja Gericke; Respondent: William Albert Brown van der Walt N.O; Respondent: The Purchaser of Erf 2079 Klerksdorp X29 IP; Respondent: The Registrar of Deeds, Pretoria; Respondent: The Master of the High Court, Mafikeng; Respondent: The Master of the High Court, Pretoria; Respondent: Willem Francois Bouwer N.O
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
21 December 2020
Case Number
87126/2019
Procedural Posture
Urgent Application / Interim Interdict (part A) Pending Final Determination (part B)
Outcome
Interim interdict granted pending final determination of Part B.
Judges
N P Mngqibisa-Thusi
Legal Topics
Interim Interdict, Administration of Deceased Estates, Curatorship, Alienation of Property, Will and Testament, Executor Powers
Land and Property Civil Procedure Interim Interdict Administration of Deceased Estates Curatorship Alienation of Property Will and Testament Executor Powers

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Parties

Zelma Strauss N.O

Applicant

Zelma Strauss

Applicant

Sonja Gericke

Applicant

William Albert Brown van der Walt N.O

Respondent

The Purchaser of Erf 2079 Klerksdorp X29 IP

Respondent

The Registrar of Deeds, Pretoria

Respondent

The Master of the High Court, Mafikeng

Respondent

The Master of the High Court, Pretoria

Respondent

Willem Francois Bouwer N.O

Respondent

Procedural Posture

Urgent Application / Interim Interdict (part A) Pending Final Determination (part B)

Legal Issues

  1. 1 Whether the sale and pending transfer of the immovable property by the executor was lawful without the required consent.
  2. 2 Whether the applicants have established the requirements for an interim interdict.
  3. 3 Whether the applicants have a prima facie right to the property as residual heirs.

Ratio Decidendi

The court found that the sale of the immovable property by the first respondent, as executor, was irregular and unlawful because he failed to obtain the necessary consent from the curator or the court as required by Section 80 of the Administration of Deceased Estates Act. The applicants, as residual heirs, have a prima facie right to the property and risk irreparable harm if the transfer is registered before the estate is distributed. The requirements for an interim interdict were satisfied: the applicants established a prima facie right, demonstrated potential irreparable harm, showed that the balance of convenience favoured granting the interim relief, and that no other satisfactory...

Court Disposition

Interim interdict granted pending final determination of Part B.

Orders

  • An interim order is granted interdicting the first and third respondents from proceeding with the registration of the transfer of Erf 2079 extension 29, Registration I.P, North-West also known as 17 Jacklin Street, Irene Park, Klerksdorp, pending the final determination of Part B of this application.
  • The applicant is permitted to file further affidavits as may be necessary in support of this application with due notice to the relevant respondents for purposes of finalisation of Part B.