Van As No and Others v Jacobs NO and Others (65652/17) [2017] ZAGPPHC 1162 (23 October 2017)

Van As No and Others v Jacobs NO and Others (65652/17) [2017] ZAGPPHC 1162 (23 October 2017)

The court found that the ex parte application brought by the Frikkie van As Family Trust was improper and unjustified. The FFT failed to disclose material facts, including the true circumstances surrounding the trustees' resolution and the ongoing family dispute. The urgency claimed was not substantiated, as there was no imminent risk that justified dispensing with notice to the respondents. The relief sought was final in substance, as it allowed the FFT to collect rentals and manage property without accounting to the DBT, effectively precluding the DBT from recovering funds even if the interdict was later set aside. The court exercised its discretion to discharge the rule nisi, holding...

Citation
[2017] ZAGPPHC 1162
Parties
Applicant: Frederik Johannes Van As NO; Applicant: Chantell Van As; Applicant: Ferdinand Smartenryk Devenier NO; Respondent: Gertruida Susanna Jacobs NO; Respondent: Dawid Matthee NO; Respondent: Karel Johannes Van As NO; Respondent: Ferdinand Smartenryk Devenier NO; Respondent: Deelkraal Behuising Trust; Respondent: Star Stone Crushers CC; Respondent: Karel Johannes Van As; Respondent: Master of the High Court Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
23 October 2017
Case Number
65652/17
Procedural Posture
Urgent Application / Rule Nisi Reconsideration Under Rule 6(8)
Outcome
Rule nisi discharged; costs awarded against the Frikkie van As Family Trust.
Judges
Tuchten
Legal Topics
Ex Parte Applications, Interim Interdict, Trust Management, Subdivision of Agricultural Land Act, Family Trust Disputes
Civil Procedure Land and Property Ex Parte Applications Interim Interdict Trust Management Subdivision of Agricultural Land Act Family Trust Disputes

Case Brief

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Parties

Frederik Johannes Van As NO

Applicant

Chantell Van As

Applicant

Ferdinand Smartenryk Devenier NO

Applicant

Gertruida Susanna Jacobs NO

Respondent

Dawid Matthee NO

Respondent

Karel Johannes Van As NO

Respondent

Ferdinand Smartenryk Devenier NO

Respondent

Deelkraal Behuising Trust

Respondent

Star Stone Crushers CC

Respondent

Karel Johannes Van As

Respondent

Master of the High Court Pretoria

Respondent

Procedural Posture

Urgent Application / Rule Nisi Reconsideration Under Rule 6(8)

Legal Issues

  1. 1 Whether the ex parte interim interdict was properly sought and justified.
  2. 2 Whether the Frikkie van As Family Trust had authority to bring the application.
  3. 3 Whether the respondents were prejudiced by the ex parte order.

Ratio Decidendi

The court found that the ex parte application brought by the Frikkie van As Family Trust was improper and unjustified. The FFT failed to disclose material facts, including the true circumstances surrounding the trustees' resolution and the ongoing family dispute. The urgency claimed was not substantiated, as there was no imminent risk that justified dispensing with notice to the respondents. The relief sought was final in substance, as it allowed the FFT to collect rentals and manage property without accounting to the DBT, effectively precluding the DBT from recovering funds even if the interdict was later set aside. The court exercised its discretion to discharge the rule nisi, holding...

Court Disposition

Rule nisi discharged; costs awarded against the Frikkie van As Family Trust.

Orders

  • The rule nisi granted by Tlhapi J on 19 September 2017 and extended by Moosa AJ on 17 October 2017 is discharged.
  • The Frikkie van As Family Trust must pay the costs of the Deelkraal Behuising Trust and of the fifth and sixth respondents, including the costs of the hearings before both judges named in paragraph 1 of this order.