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Gowar and Another v Gowar and Others (3392/2012) [2015] ZAECGHC 6 (10 February 2015)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – GRAHAMSTOWN

Case number: 3392/2012

Date Heard: 29/01/2015

Date Delivered: 10/02/2015


In the matter between:


JOHANNA DAVID GOWAR...............................................................................1ST APPLICANT

FRANCOIS PETER GOWAR...........................................................................2ND APPLICANT


And


REGINALD DAVID GOWAR.........................................................................1ST REPSONDENT

TRTIUS NOCOLAAS VAN DER WALT.......................................................2ND RESPONDENT

MASTER OF THE HIGH COURT...............................................................3RD RESPONDENT



JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

SMITH J:

[1] The applicants apply for leave to appeal against my judgment and order dismissing the main application, handed down on 23 September 2014. The first and second respondents have also filed a conditional application for leave to appeal against the dismissal of their counter application, in the event that applicants are granted leave.

[2] At the hearing of the application Mr Ford SC, who appeared for the applicants, concentrated his argument mainly on the grounds that another court might reasonably find that I have erred in:

(a) focusing mainly on allegations of misconduct, and not giving due and proper consideration to the best interests of all the beneficiaries, as I was required to in terms of section 20(1) of the Trust Property Control Act 57 of 1988 (‘the Act’); and,

(b) accepting the respondents’ argument that it was not the duty of the court to resolve the disputes between the trustees, and that they could only be resolved by consensus and not through the appointment of independent trustees.

[3] I am indeed persuaded that there are reasonable prospects that another court may find that I have erred in these respects.

[4] Mr Ford SC has, in my view, also correctly submitted that, at least insofar as the ground mentioned in paragraph 2(a) above is concerned, the resolution of that issue will require a pronouncement on the ambit of section 20(1) of the Act, and the scope of the court’s discretion when considering the best interests of a trust and its beneficiaries. This is an important question of law and, in my view, it would be appropriate to have it referred to the Supreme Court of Appeal for authoritative pronouncement.

[5] The respondents’ conditional application for leave to appeal is based mainly on the ground that I have erred in finding that the proven facts did not establish good and sufficient grounds for the removal of the second applicant as trustee. I am persuaded that there are reasonable prospects that another court may find differently in this regard.

[6] Mr De La Harpe, who appeared for the respondents, agreed that the grounds raised by the applicants would be more appropriately considered by the Supreme Court of Appeal.

[7] In the result the following orders issue:

(a) The applicants are granted leave to appeal to the Supreme Court of Appeal against the judgment and order dismissing the main application with costs, handed down on 23 September 2014;

(b) The first and second respondents are granted leave to appeal to the Supreme Court of Appeal against the judgment and order dismissing their counter application with costs, handed down on 23 September 2014.

(c) Costs shall be in the appeal.

_________________________

J.E SMITH

JUDGE OF THE HIGH COURT


Appearances


Counsel for the Applicants : Advocate Ford, SC

Attorneys for the Applicants: Netteltons

P.O Box 449

Grahamstown

6140

Tel: 046 622 7149

Ref: Mr Nettelton

Counsel for the Respondent: Advocate Douglas SC

Assisted by : Advocate Richards

Attorneys for the Respondent : Dold and Stone

P. O Box 60

Grahamstown

6140

Ref: Ms Cotzee

Date Heard : 29 January 2014

Date Delivered : 10 February 2015