Van Heerden v Van Heerden and Others (4012/2008) [2011] ZAWCHC 209 (4 May 2011)

Van Heerden v Van Heerden and Others (4012/2008) [2011] ZAWCHC 209 (4 May 2011)

The court found that no formal evidence had been placed on record to support the relief claimed by the plaintiff. The summary of evidence from the bar was not considered, as it could cloud the court's judgment. The authorities cited by both parties were decided after evidence was duly considered, and in this matter, no such evidence was presented. The court held that the point in limine raised by the first defendant was premature and could not be decided without evidence. Accordingly, the application to strike out portions of the amended particulars of claim was dismissed.

Citation
[2011] ZAWCHC 209
Parties
Plaintiff: Elizabeth Andrina Van Heerden; Defendant: Pieter Johannes Van Heerden; Defendant: Pieter Johannes Van Heerden NO; Defendant: Elizabeth Andrina Van Heerden NO; Defendant: Johannes Anthonie 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
4 May 2011
Case Number
4012/2008
Procedural Posture
Civil Procedure / Point in Limine; Interlocutory Application Prior to Trial
Outcome
Application to strike out portions of the amended particulars of claim dismissed as premature; no order as to costs.
Judges
Mantame
Legal Topics
Trust Property Control Act, Fiduciary Duty of Trustees, Conflict of Interest, Locus Standi, Redistribution of Assets on Divorce
Family and Children Civil Procedure Trust Property Control Act Fiduciary Duty of Trustees Conflict of Interest Locus Standi Redistribution of Assets on Divorce

Case Brief

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Parties

Elizabeth Andrina Van Heerden

Plaintiff

Pieter Johannes Van Heerden

Defendant

Pieter Johannes Van Heerden NO

Defendant

Elizabeth Andrina Van Heerden NO

Defendant

Johannes Anthonie Michael Prinsloo

Defendant

Tamsin Van Heerden

Defendant

Jan-Pierre Van Heerden

Defendant

The Master of the High Court

Defendant

Procedural Posture

Civil Procedure / Point in Limine; Interlocutory Application Prior to Trial

Legal Issues

  1. 1 Whether the plaintiff, as a trustee, has locus standi to claim relief for herself from trust assets in the context of divorce proceedings.
  2. 2 Whether the relief sought by the plaintiff creates a conflict of interest between her personal interests and her fiduciary duties as trustee.
  3. 3 Whether the application to strike out portions of the amended particulars of claim should be granted in the absence of formal evidence.

Ratio Decidendi

The court found that no formal evidence had been placed on record to support the relief claimed by the plaintiff. The summary of evidence from the bar was not considered, as it could cloud the court's judgment. The authorities cited by both parties were decided after evidence was duly considered, and in this matter, no such evidence was presented. The court held that the point in limine raised by the first defendant was premature and could not be decided without evidence. Accordingly, the application to strike out portions of the amended particulars of claim was dismissed.

Court Disposition

Application to strike out portions of the amended particulars of claim dismissed as premature; no order as to costs.

Orders

  • The application to strike out paragraphs 15, 16 and 17 of the amended particulars of claim and Part B of the plaintiff's prayers is dismissed.
  • There shall be no order as to costs.