Ex parte Van der Horst: in re Estate Herold 1978 (1) SA 299 (T)
Facts
This case involves the legal question of whether a person can be considered to be in control of a property under the common law if they do not have physical possession of it. The deceased, Herold, died in 1975 without leaving a will. His two sons, Van der Horst and Herold, made an application to the court to be appointed as the executors of his estate. However, the Registrar of the Supreme Court dismissed their application, arguing that they could not be appointed as executors because they were not in control of the deceased's estate.
Procedural History
Van der Horst and Herold appealed the Registrar's decision to the Transvaal Provincial Division of the Supreme Court.
Issue
The issue in this case was whether Van der Horst and Herold could be considered to be in control of the deceased's estate, even though they did not have physical possession of it.
Holding
The Transvaal Provincial Division of the Supreme Court held that Van der Horst and Herold could be considered to be in control of the deceased's estate, even though they did not have physical possession of it. The court reasoned that the concept of "control" does not require physical possession, and that a person can be considered to be in control of a property if they have the power to deal with it as they see fit.
Reasoning
The court reasoned that the concept of "control" does not require physical possession. The court also reasoned that Van der Horst and Herold had the power to deal with the deceased's estate as they saw fit.
Conclusion
The Transvaal Provincial Division of the Supreme Court's decision in this case is significant because it clarifies the law relating to the meaning of "control" in the context of the common law. The decision emphasizes that the concept of "control" does not require physical possession, and that a person can be considered to be in control of a property if they have the power to deal with it as they see fit.
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