IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the leave to appeal application between:
ABRAHAM FRANCOIS NAUDE
LINDA NAUDE
and
MARTHINUS JOHANNES KAPP
BEN NAUDE
In re:
MARTHINUS JOHANNES KAPP
BEN NAUDE
and
Not reportable
Case no: 7156/2024
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
FIRST APPLICANT
SECOND APPLICANT
THE MASTER OF THE HIGH COURT, BLOEMFONTEIN FIRST RESPONDENT
THE CHIEF MASTER OF THE HIGH COURT OF
SOUTH AFRICA SECOND RESPONDENT
ABRAHAM FRANCOIS NAUDE THIRD RESPONDENT
LINDA NAUDE FOURTH RESPONDENT
BURGER NAUDE FIFTH RESPONDENT
THE SOUTH AFRICAN LEGAL PRACTICE COUNCIL SIXTH RESPONDENT
Neutral citation: Naude and Another v Kapp and Another In re: Kapp and Another v
The Master of the High Court, Bloemfontein and Others (7156/2024)
Coram:
Delivered:
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[2026] ZAFSHC 244 (15 April 2026)
GREYLING-COETZER J
This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date and time for hand
down is deemed to be 16h00 on 15 April 2026.
Summary: Application for leave to appeal - no prospects of success on appeal
- application dismissed.
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ORDER
The application for leave to appeal is dismissed, with costs.
JUDGMENT
Greyling-Coetze r J
[1] The first and second respondents sought a declaratory order as contemplated in
s 22(1) of the Administration of Estates Act 66 of 1965. The declaration of validity was
granted by this Court; the Master of the High Court, Bloemfontein as first respondent in
the in re application, was authorised to appoint the first respondent per the validity
declaration, with costs to be paid by the deceased estate. The applicants seek leave to
appeal above order to the Full Bench of this Division, alternatively the Supreme Court of
Appeal.
[2] Section 17 of the Superior Courts Act 10 of 2013 sets out the test in an
application for leave to appeal and provides that leave to appeal may only be given
where the judge or judges concerned are of the opinion that (i) the appeal would have a
reasonable prospect of success; or (ii) there is some other compelling reason why the
appeal should be heard, including conflicting judgments on the matter under
consideration.
[3] In Ramakatsa and Others v African National Congress and Another1 the test was
articulated as follows:
' ... leave to appeal may only be granted where the judges concerned are of the opinion that the
appeal would have a reasonable prospect of success or there are compelling reasons which
exist why the appeal should be heard such as the interests of justice. This Court in Caratco,
concerning the provisions of s 17(1)(a)(ii) of the SC Act pointed out that if the court is
1 Ramakatsa and Others v African National Congress and Another [2021] ZASCA 31 para 10.
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unpersuaded that there are prospects of success, it must still enquire into whether there is a
compelling reason to entertain the appeal. Compelling reason would of course include an
important question of law or a discreet issue of public importance that will have an effect on
future disputes. However, this Court correctly added that 'but here too the merits remain vitally
important and are often decisive. I am mindful of the decisions at high court level debating
whether the use of the word "would" as opposed to "could" possibly means that the threshold for
granting the appeal has been raised. If a reasonable prospect of success is established, leave
to appeal should be granted. Similarly, if there are some other compelling reasons why the
appeal should be heard, leave to appeal should be granted. The test of reasonable prospects of
success postulates a dispassionate decision based on the facts and the law that a court of
appeal could reasonably arrive at a conclusion different to that of the trial court. In other words,
the appellants in this matter need to convince this Court on proper grounds that they have
prospects of success on appeal. Those prospects of success must not be remote, but there
must exist a reasonable chance of succeeding. A sound rational basis for the conclusion that
there are prospects of success must be shown to exist.'
[4] The applicants rely on various grounds_ in support of the application for leave to
appeal. They are summarised as follows: (i) this court erred in interfering with the duties
of the Master of the High Court, Bloemfontein by finding that it had authority to appoint
the executor for the deceased estate and interpreting the Master's report incorrectly; (ii)
not finding that the Master already exercised its discretion not to appoint the first
respondent; (iii) it erred in finding the nomination of the first respondent valid and finding
that the first respondent should be appointed as a consequence; (iv) finding that the
that the first respondent should be appointed as a consequence; (iv) finding that the
respondents did not apply of a final interdict; (v) not applying the Plascon-Evans
principle2 correctly; (vi) finding that the second respondent had an interest in the estate
and had not waived such a right; and (viii) finding that it is undisputed that the second
applicant is a beneficiary in terms of the deceased will. The applicants contend that this
Court ought to have found that the second respondent's interest in the deceased estate
was limited to the property 'Verlossingshoop' and that the second respondent's interest
in the deceased estate ceased when he waived his right to the property, alternatively
when it was sold in 2023.
[5] I am not persuaded that the appeal enjoys reasonable prospects of success, nor
that another court would be inclined to arrive at a different conclusion. In the premises,
2 As articulated in Plascon-Evans Painted Ltd v Van Riebeeck Paints (Pfy) Ltd 1984 (3) SA 623 (A).
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there exists no sound or rational basis upon which leave to appeal ought to be granted.
I accordingly refer to the reasoned judgment wherein declaratory relief was afforded to
the respondents. In that context, and having regard to the grounds of appeal, I
emphasise, without express limitation, the following:
(a) The judgment is explicit as to the nature of the enquiry and the issues requiring
determination under s 22(1) of the Administration of Estates Act 66 of 1965. The relief
was confined to a declaration of the validity of the nomination as contemplated in that
section, coupled with an authorisation to the Master of the High Court, Bloemfontein, to
appoint the first respondent with reference to such declaration, without derogating from
any of the Master's broader statutory powers in relation to the appointment of an
executor in the deceased estate.
(b) The Master's report comprehensively sets out the relevant background,
indicating that, although there had initially been an intention to appoint the first
respondent, subsequent objections led to a decision not to proceed with such
appointment. As the Master is entitled to in terms of s 22 of the Administration of
Estates Act. The Master further explains that, in such circumstances, a discretionary
appointment would ordinarily follow and confirmed that an appointment Would be made
pursuant to the Court's determination of the pending application.
(c) The findings concerning the validity of the nomination and the second
respondent's interest in the deceased estate have been fully canvassed in the judgment
and require no repetition. The grounds of appeal in this regard merely replicate the
arguments advanced in the application.
(d) No challenge was mounted against the express terms of the deceased's will,
which accordingly served undisputed before this Court.
(6) Having found as above I proceed to consider whether there are any compelling
reasons to grant leave to appeal. Vital to this enquiry is the merits and accordingly find
reasons to grant leave to appeal. Vital to this enquiry is the merits and accordingly find
that there are no compelling reason justifying an appeal to be entertained.
(7) Consequently, the following order is made:
The application for leave to appeal is dismissed, with costs.
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D GREYL TZER
JUDGE OF THE HIGH COURT
Appearances
For the Applicants:
Instructed by:
For the Respondents:
Instructed by:
P DU P Greyling
FS Law Inc
J S Rautenbach
Kapp Attorneys C/O Kramer Weihmann
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