Van Heerden v Van Heerden and Others (4012/2008) [2011] ZAWCHC 341 (7 September 2011)

Van Heerden v Van Heerden and Others (4012/2008) [2011] ZAWCHC 341 (7 September 2011)

The court held that the order dismissing the special plea was interlocutory in nature and did not have a final or definitive effect on the main divorce action, which was still pending. The issues raised by the applicants, including locus standi and fiduciary duty, could only be properly determined after evidence was led at trial. The authorities cited by the applicants were distinguished as either not applicable or relating to orders with final effect. The statutory and case law principles discourage appeals against interlocutory orders unless they dispose of a substantial portion of the main dispute. Accordingly, leave to appeal was refused.

Citation
[2011] ZAWCHC 341
Parties
Plaintiff: Elizabeth Andriena Van Heerden; Defendant: Pieter Johannes Van Heerden; Defendant: Pieter Johannes Van Heerden N.O.; Defendant: Elizabeth Andrina Van Heerden; Defendant: Johannes Antonie Michael Prinsloo; Defendant: Tamsin Van Heerden; Defendant: Jan Pierre Van Heerden; Defendant: The Master of the High Court
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
7 September 2011
Case Number
4012/2008
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Interlocutory Judgment
Outcome
Leave to appeal is refused with costs.
Judges
Mantame
Legal Topics
Interlocutory Orders, Leave to Appeal, Divorce Act Section 73, Locus Standi, Fiduciary Duty
Civil Procedure Family and Children Interlocutory Orders Leave to Appeal Divorce Act Section 73 Locus Standi Fiduciary Duty

Case Brief

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Parties

Elizabeth Andriena Van Heerden

Plaintiff

Pieter Johannes Van Heerden

Defendant

Pieter Johannes Van Heerden N.O.

Defendant

Elizabeth Andrina Van Heerden

Defendant

Johannes Antonie Michael Prinsloo

Defendant

Tamsin Van Heerden

Defendant

Jan Pierre Van Heerden

Defendant

The Master of the High Court

Defendant

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Interlocutory Judgment

Legal Issues

  1. 1 Whether the interlocutory order dismissing the special plea is appealable.
  2. 2 Whether the application to strike out constitutes a special exception that can be decided at the commencement of trial.
  3. 3 Whether the Plaintiff has locus standi to bring proceedings against the Trust as a trustee.

Ratio Decidendi

The court held that the order dismissing the special plea was interlocutory in nature and did not have a final or definitive effect on the main divorce action, which was still pending. The issues raised by the applicants, including locus standi and fiduciary duty, could only be properly determined after evidence was led at trial. The authorities cited by the applicants were distinguished as either not applicable or relating to orders with final effect. The statutory and case law principles discourage appeals against interlocutory orders unless they dispose of a substantial portion of the main dispute. Accordingly, leave to appeal was refused.

Court Disposition

Leave to appeal is refused with costs.

Orders

  • Leave to appeal is refused.
  • Applicants are ordered to pay the costs.