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[2013] ZANCHC 27
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Troger NO and Another v Hunt and Others (2033/2011) [2013] ZANCHC 27 (5 July 2013)
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE HIGH
COURT, KIMBERLEY
Case number: JA 78
CASE No: 2033/2011
Delivered: 05/07/2013
CHRISTINE ELAINE
TROGER
.........................
1
ST
Applicant
ALISA KAYE COZZENS
N.O
............................
2
ND
Applicant
And
SYDNEY REGINALD HUNT
..........................
1
ST
Respondent
MARK HUGH HUNT
....................................
2
ND
Respondent
GEOFFREY EDWARD HUNT
.........................
3
RD
Respondent
THE
MASTER OF THE NORTHERN CAPE
HIGH COURT,
KIMBERLEY
.........................
4
TH
Respondent
THE REGISTRAR OF
DEEDS, KIMBERLEY
....
5
TH
Respondent
THE REGISTRAR OF
DEEDS,
BLOEMFONTEIN
........................................
6
TH
Respondent
JUDGMENT ON LEAVE TO
APPEAL
Mamosebo AJ,
Introduction
[1]
This is an
application for leave to appeal to the Supreme Court of Appeal
(“SCA”) against the order pertaining to this
matter that
was delivered on 22 February 2013. I issued an order for the
application to be dismissed and the costs of the application,
including costs of two counsel to be borne by the estate of the late
Kathryn Elaine Hunt, failing which, by the applicants jointly
and
severally, the one paying the other to be absolved.
[2]
The
applicants have raised the following as grounds for leave to appeal
to the Supreme Court of Appeal, alleging an error in fact
and in law
in the following respects, that the Court:
2.1.1. Failed to find
that the undivided shares of agricultural property vest in the first
and second respondents;
2.1.2. Failed to find
that the vesting of the undivided shares of agricultural land in the
first and second respondents renders
such vesting subject to the
provisions of s3 of the Subdivision of Agricultural Land Act, 70 of
1970;
2.1.3. As a result of
such prohibition on the vesting of an undivided share in agricultural
land and in terms of s3 of the Subdivision
of Agricultural Land Act
70 of 1970, the terms of the
fide commissum
are rendered
pro
non scripto
and as such should be struck from the provisions of
the will;
2.1.4. By finding that
the current case is distinguishable from the matter of
Geue and
Another v Van Der Lith and Another
[2003] ZASCA 118
;
2004 (3) SA 333
(SCA) in
that there was no question of sale of the agricultural land in the
matter and the testator had specifically left this
immovable property
to his wife and upon her death the property was to devolve to his two
sons in equal undivided shares and upon
their death to Geoffrey
Edward Hunt;
2.1.5 Byaccordingly
dismissing the application with costs.
3. It is my view that
all the above grounds have been adequately dealt with in the main
judgment and it will serve no purpose to
regurgitate the issues in
this application. The entire judgment addresses all these aspects.
4. Despite the fact
that the matter is conceded by both counsel as a
res nova
based on the correct interpretation of the Subdivision of
Agricultural Land Act, 70 of 1970 (‘The SAL Act’), more
specifically s2 (b) thereof, my view is that the interpretation of
this Act together with the analogy of the decided cases referred
to
has enabled me to contextualize the specific facts in this matter and
arrive at this decision which I submit is correct.
5. Having considered
the grounds of appeal and the submissions made, I am not persuaded
that there are reasonable prospects that
another Court would come to
a different conclusion. The application for leave to appeal falls to
be dismissed.
ORDER
13.
In the result
the following order is made:
1. The application
for leave to appeal is dismissed with costs.
_____________________
Mamosebo, AJ
Northern Cape High
Court, Kimberley
Appearances:
For the appellants:
Adv CEPuckrin
SC
Assisted by: J Hershensohn
Instructed by: Hugo, Mathewson &
OosthuizenInc
For the Respondents:
Adv JP De
Bruin SC
Assisted by: AdvPJT De Wet
Instructed by: Haarhoffs Attorneys