Burger and Another v Executor of the Estate of the Late Malan N.O and Others (10631/06, 8951/06) [2016] ZAWCHC 3; [2016] 1 All SA 733 (WCC) (20 January 2016)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2016
>>
[2016] ZAWCHC 3
|

|

Burger and Another v Executor of the Estate of the Late Malan N.O and Others (10631/06, 8951/06) [2016] ZAWCHC 3; [2016] 1 All SA 733 (WCC) (20 January 2016)

IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE NO: 10631/06
& 8951/06
DATE: 20 JANUARY 2016
REPORTABLE
In the matter between:
FLORIS
BURGER
................................................................................................................
1st
Plaintiff
MARIE
HEYNS
....................................................................................................................
2nd
Plaintiff
And
THE EXECUTOR OF THE ESTATE OF THE
LATE
ELIZABETH MAGDALENA MALAN
N.O
...................................................................
1st
Defendant
THE MASTER OF THE HIGH
COURT
.......................................................................
2nd
Defendant
JEANETTE VAN DER
MERWE
....................................................................................
3rd
Defendant
THE BIBILE SOCIETY OF SOUTH
AFRICA
..............................................................
4th
Defendant
STRAND
DIENSSENTRUM
............................................................................................
5th
Defendant
CHRISTELIKE MAATSKAPLIKE
RAAD
...................................................................
6th
Defendant
Coram: Yekiso J
Dates of Hearing: 16, 17, 19 &
30 November 2009, 1, 2 & 3 February 2010, 12 April 2010, 21 &
22 September 2010, 16 September
2015
Date of Judgment: 20 January 2016
Summary
Conflicting opinions of expert
witnesses: resolution thereof; principle applied and approach
followed in deciding which opinion
is preferable; principle applied
and approach followed reaffirmed.
JUDGMENT
YEKISO, J
[1] Elizabeth Magdalena Malan (“Malan”)
died on 10 November 2004. On 21 May 2003, and at the Strand, Malan
executed
a last will and testament. In terms thereof Malan
bequeathed her property situate at and commonly known as number 17
Jacoma Court,
Coast Road, Strand to Jeanette van der Merwe (“Van
der Merwe”). In the same will Malan made a further bequest of
an
amount of R10 000 to the Bible Society of South Africa; a further
bequest of an amount of R5 000 to the Strand Service Centre; and
a
further bequest of an amount of R5 000 to the Christian Social
Council. The residue of her estate was to devolve to Marie Heyns
and
Floris Burger, her niece and nephew, respectively, in equal shares.
[2] Shortly after the death of Malan a
further will, ostensibly executed at the Strand on 22 September 2004
(“the disputed
will”), surfaced. In terms of the
disputed will Malan bequeathed to Van der Merwe an amount equivalent
to the amount which
would be due and owing to Malan, ostensibly
arising from an acknowledgment of debt executed by Van der Merwe in
favour of Malan
on 14 September 2004. On 14 September 2004 Van der
Merwe executed an acknowledgement of debt in favour of Malan. In
terms of
that acknowledgement of debt Van der Merwe acknowledged
being truly and lawfully indebted to Malan in an amount of R690 000
arising
from a sale of the property situate at and commonly known as
number 13 Jacoma Court, Coast Road, Strand, for an amount of R735 000

less renovations and improvements in an amount of R45 000 effected
thereon.
[3] The rest of the beneficiaries in
the disputed will are the same as those indicated in an earlier will
executed on 21 May 2003
except that, in the case of Van der Merwe,
what was bequeathed to her in terms of the disputed will is the
amount which would have
been due and owing to Malan by Van der Merwe,
arising from an acknowledgement of debt executed on 14 September 2004
by Van der
Merwe in favour of Malan as opposed to the initial
disposition to her (Van der Merwe) of the property situate at and
commonly known
as 17 Jacoma Court, 8 Coast Road, Strand.
[4] On the death of Malan the executor
of her will, Sanlam Trust Limited, forwarded the disputed will to
the Master of the High
Court, Cape Town, who accepted the disputed
will as Malan’s last will and testament. The plaintiffs allege
that the signature
of Malan, as well as the signatures of the
witnesses, appended on the first page of the disputed will, had been
forged; and that
the first page of the disputed will was not validly
signed and, thus, stands to be declared invalid. Once the first
page of the
disputed will is declared invalid, the remainder of the
disputed would be rendered meaningless and, thus, stand to be
invalidated
as a whole.
[5] On 3 October 2006 Floris Burger and
Marie Heyns (the plaintiffs) instituted an action out of this court,
as plaintiffs, in which
they seek an order declaring the will of
Malan executed on 22 September 2004 null and void; an order that the
will of Malan executed
on 21 May 2003 be declared to be Malan’s
last will and testament and that the Master of the High Court accepts
it as such;
and costs of suit only against those defendants who would
defend this action, jointly and severally, the one paying the other
to
be absolved.
[6] Van der Merwe, the third defendant
in the action, opposes the relief sought. First, second, fourth,
fifth and the sixth defendants
abide the decision of this court.
Thus, the dispute between those parties involved in these proceedings
is a question as to whether
the signature of Malan and the witnesses,
appended on the first page of the disputed will, are those of Malan
and the witnesses.
E Visser and W S Thatcher signed as witnesses.
[7] At an ensuing trial which commenced
on 16 November 2009 the following witnesses testified in the
plaintiffs’ case, these
being, Floris Burger, the first
plaintiff; Lohan Burger (“Lohan”); Marie Heyns, the
second plaintiff; Ms Maria Magdalena
de Lange (“Ms De Lange”);
Maria Johanna Steenkamp (“Steenkamp”); and an expert
witness in the person of
Ms Yvette Palm (“Palm”). The
following witnesses testified in the third defendant’s case,
these being, Gert
Jacobus Burger (“Burger”); Ms Jeanette
Catherina van der Merwe (third defendant); Hendrik Ludolf Neethling
Joubert
(“Joubert”); and Willem Johannes Fourie
(“Fourie”).
LAY WITNESSES IN PLAINTIFFS’
CASE
[8] The first witness to testify in the
plaintiff’s case was the first plaintiff in the person of
Floris Burger. The first
plaintiff verified the handwriting of Malan
in the two cards which were addressed to him by Malan during her
lifetime. The handwriting
so verified was amongst the documents
examined by Palm, the plaintiffs’ expert, in compiling her
report and the conclusion
drawn arising from such an examination.
Malan was an aunt of the first plaintiff.
[9] Lohan Burger was the second witness
to testify in the plaintiff’s case. Malan was the sister of
Lohan’s paternal
grandmother. Lohan verified Malan’s
handwriting on an envelope addressed to him by Malan in her lifetime.
He also verified
the signature of Malan on a birthday card he
received from her. The aforementioned documents were also amongst
documents examined
by Palm in compiling her report and her
conclusions arising from such examination. The evidence of Lohan
Burger was not challenged.
[10] The third witness to testify was
Marie Heyns (“Heyns”), the second plaintiff. Malan was
the sister of the second
plaintiff’s mother. The second
plaintiff verified Malan’s handwriting on an envelope, a letter
and a note in a book,
which was amongst the documents examined by
Palm in compiling her report and the conclusion arising therefrom.
Similarly, the
evidence of Heyns was not challenged.
[11] The fourth witness to testify in
the plaintiff’s case was Ms De Lange. Ms De Lange knew Malan
from their involvement
in the Strand Service Centre. The centre
provides social services to elderly persons. Ms De Lange verified
Malan’s signature
on the indemnity forms issued by the Strand
Service Centre, signed by Malan in Ms De Lange’s presence.
Similarly, Ms De
Lange’s evidence was not challenged.
[12] The last lay witness to testify in
the plaintiff’s case was Ms Steenkamp. Steenkamp also knew
Malan through her involvement
in the Strand Service Centre.
Steenkamp verified Malan’s signature on indemnity forms issued
by the Strand Service Centre
signed by Malan in her presence.
Steenkamp knew Malan up until the year 2000, the latter being the
year Malan ceased rendering
a service to the Strand Service Centre.
Similarly, Steenkamp’s evidence was not challenged by way of
cross-examination.
THE WILL OF 22 SEPTEMBER 2004
[13] Malan, ostensibly with the
assistance of Van der Merwe, moved out of her flat at number 17
Jacoma Court into Ametis Old Age
Home, Strand on 1 April 2003. Van
der Merwe, together with her husband, moved into Malan’s flat
on 1 May 2003. Before
then, Van der Merwe had stayed in a penthouse
in Jacoma Court. They moved into that penthouse during December
1999. Whilst residing
at Malan’s flat, at number 17 Jacoma
Court, Van der Merwe, together with her husband, effected certain
improvements and renovations
therein. The earlier will of 21 May
2003 was executed by Malan at a stage when Van der Merwe together
with her husband had already
moved into Malan’s flat, having
moved in on 1 May 2003. In terms of that will Malan bequeathed to
Van der Merwe her flat,
being flat number 17 Jacoma Court. Hardly a
month had elapsed of the occupation of her flat by Van der Merwe and
her husband that
Malan made the bequest. It is ostensibly on the
basis of this bequest that Van der Merwe and her husband effected
improvements
and renovations in Malan’s flat.
[14] After about a year of taking
occupation of Malan’s flat, Van der Merwe and her husband,
offered to purchase a bigger
flat in the same block. The bigger flat
that they had intended to buy is situate at and commonly known as
number 14B Jacoma Court.
Malan’s flat in respect of which they
were in occupation was still registered in Malan’s name. It
would appear that
an arrangement was made in terms of which Malan’s
flat be sold and the proceeds arising from such a sale be utilised to
purchase
the flat at 14B Jacoma Court.
[15] A deed of sale was drawn. In
terms of the deed of sale Malan’s flat was to be sold to one
Willem Adriaan Fouché
for an amount of R735 000. That deed of
sale was signed by Malan at the Strand on 15 July 2004 whilst the
purchaser, the said
Willem Adriaan Fouché, signed the same
deed of sale at Vredendal on 17 July 2004. Although the deed of sale
was signed
by the seller and the purchaser at different places and on
different dates, witnesses to both the seller and the purchaser’s

signatures are the same. The power of attorney to effect a transfer
of the property from Malan to Willem
Adriaan Fouché was signed on 31
August 2004.
[16] Whilst the process of disposal of
the property by way of a sale was in progress, Van der Merwe was
advised of an alternative
process which would achieve the same
result, a process that would be cost effective and would have less
onerous tax implications
than would be the case in the normal
transfer of the property. This could be achieved by way of execution
of an acknowledgment
of debt by Van der Merwe in favour of Malan
purporting that Van der Merwe is truly and lawfully indebted to Malan
in an amount
of R735 000 less an amount of R45 000 being in respect
of improvements and renovations effected on Malan’s property.
The
acknowledgement of debt further records that the provisions
thereof would be binding on the parties’ excecutors and that,

in the event of the indebtedness arising from the acknowledgment of
debt not being discharged before the death of Malan, that the
debt
would be liquidated as provided in Malan’s last will and
testament. The reference to Malan’s last will and testament
in
the acknowledgement of debt is ostensibly a reference to the disputed
will executed on 22 September 2004, a period of somewhat
eight days
after execution of the acknowledgement of debt. The acknowledgement
of debt was signed on 14 September 2004.
[17] To complete the process, Malan was
required to consent to the proceeds of the sale of her property, less
the costs of the renovations
and improvements effected thereon, being
utilised towards the purchase of the flat at 14B Jacoma Court. The
consent was similarly
signed on 14 September 2004.
[18] On 22 September 2004, Malan
executed a further last will and testament (the disputed will)
containing the same provisions as
in the earlier will executed on 21
May 2003. The only difference between the will executed on 21 May
2003 and the disputed will
is that, whereas the bequest in terms of
the will executed on 21 May 2003 is in the form of Malan’s
flat, being flat number
17 Jacoma Court, Strand, the bequest in terms
of the disputed will are the proceeds of the sale of flat 17 Jacoma
Court, less costs
of improvements and renovations effected thereon.
The signature of Malan, as well as that of her witnesses, appended on
the first
page of the disputed will, is challenged on the basis that
those signatures were forged. It is the validity of Malan’s
signature,
as well as the witnesses’ signatures on the first
page of the disputed will, which is challenged by the plaintiffs on
the
basis that all the signatures appearing on the first page of the
disputed will are a consequence of forgery which, if proved, has
an
effect of rendering the disputed will invalid.
[19] Willem Johannes Fourie is a
financial advisor at Sanlam since 1997. Malan was one of his
clients. He could not remember when
he first met Malan but was
involved in the drafting of three previous wills executed by Malan,
the first such will having been
executed on 12 May 1999; followed by
the one dated 27 January 2003; and the one dated 21 May 2003. He
signed as a witness in all
the aforementioned wills. Fourie drafted
the will dated 22 September 2004 (the disputed will) but was not
involved in an arrangement
for the signature thereof.
[20] Fourie testified that when a
client signs a will, he would provide the client with two unsigned
wills for the client to sign.
The client would then be required to
sign both documents. Once signed, he would keep a copy of the
client’s will in his
file and send the original will to Sanlam
Trust for safekeeping. According to Fourie, Malan returned to his
office with both signed
originals. Once the signed originals were
returned to him he merely checked the signatures on the document. He
could not recall
whether he checked if there were any alterations to
the contents of the will. He returned one of the signed originals to
Malan
to keep and kept the other original for onward transmission to
Sanlam Trust.
[21] Van der Merwe testified that she
was present when Malan, and the two witnesses, E Visser and W S
Thatcher, signed the disputed
will. Once the will was signed,
according to Van der Merwe, she returned both signed originals to
Fourie. Fourie kept one signed
original and instructed her to give
the other signed original to Malan. Visser and Thatcher did not
testify in this trial.
The explanation given was that they were too
frail to come to court to testify.
[22] The plaintiffs allege in their
particulars of claim that the will purportedly executed by Malan on
22 September 2004 is invalid.
The allegation is made on the basis
that the signature of Malan appended on the first page of the
disputed will, as well as the
signatures of the witnesses, had been
forged. In making this allegation, the plaintiffs rely on the
opinion of a handwriting expert,
in the person of Yvette Palm.
[23] On the other hand, the third
defendant, in her plea, denies the allegation of fraud. The third
defendant contends that all
the signatures appended on the first page
of the disputed will are those of Malan as well as the witnesses. She
states in her evidence
that she was present when Malan signed the
disputed will in the presence of two witnesses. In advancing the
contention that the
will was properly executed, the third defendant
further relies on the opinion of a handwriting expert in the person
of Gert Jacobus
Burger.
[24] There was thus tendered in these
proceedings the direct evidence of Van der Merwe, the third defendant
in these proceedings,
that the signatures appended on the first page
of the disputed will are those of Malan and the two witnesses, who
all signed the
document in her presence, and the conflicting opinions
of the two handwriting experts in the persons of Palm and Burger,
Palm being
of the view that the signatures appearing on the first
page of the disputed will are a consequence of a forgery, whilst
Burger,
on the other hand, does not share Palm’s view and
opines that the signatures appearing on the first page of the
disputed
will, are not a consequence of any form of forgery.
[25] The evidence of Van der Merwe is
the only direct evidence relating to signature by Malan and the two
witnesses of the questioned
document. I think it is proper for me,
to first attend to the evaluation of the conflicting opinions of the
two expert witnesses
before proceeding with the evaluation of the
evidence of Van der Merwe.
[26] It is on the basis of the
evaluation of the totality of this evidence that I am called upon to
make a determination whether
the signature of Malan, together with
the signatures of witnesses in the persons of E Visser and W S
Thatcher were validly executed.
VALUE OF EXPERT EVIDENCE
[27] Ramsbottom J in R v Jacobs
1940
TPD 142
at 146 -147, made an observation that expert witnesses are
not the judges of fact in relation to which they express an opinion,

and that judicial officers should be careful not to allow the opinion
of witnesses to take the place of their own finding of fact.
What is
required in the evaluation of the evidence of an expert nature is to
determine whether and to what extent the opinions
advanced by an
expert is founded on logical reasoning. In a case such as the one
before me, where experts differ and, in line
with the observations
made in S v Malindi
1983 (4) SA 99
(T) 104–105, the court must
decide which of the competing experts is the most credible. Factors
such as reputation and experience
play an important role in the
course of such a determination. In the ultimate analysis what is
required in the evaluation of expert
evidence is to determine whether
and to what extent the opinion advanced is founded on logical
reasoning.
[28] In Michael & Another v
Linksfield Park Clinic (Pty) Ltd & Another
2001 (3) SA 1184
(SCA)
at [39] the Supreme Court of Appeal made the following observation:
“… It would be wrong to
decide a case by simple preference where there are conflicting views
on either side, both capable
of logical support. Only where expert
opinion cannot be logically supported at all will it fail to provide
‘the benchmark
by reference to which the party’s conduct
falls to be assessed’.“ (See also Louwrens v Oldwage
2006 (2) SA 161
(SCA) at [27])
[29] Finally, in regard to this topic,
Zeffertt & Paizes: The South African Law of Evidence at p329
observe that expert scientific
witnesses tend to assess likelihood in
terms of scientific certainty and that is different from what is
required for judicial proof.
A court does not ask whether a
particular scientific thesis has been proved or disproved. In civil
proceedings the court asks
where the balance of probability lies on a
conspectus of the totality of the evidence.
EXPERT WITNESS, YVETTE PALM
[30] Yvette Palm testified that she is
a forensic document and handwriting examiner. By that she means she
examines documents,
not only pertaining to a piece of paper, but any
surface that has legible writing on it. She examines documents in
order to determine
the history of the document, as for an example,
ink analysis or the handwriting analysis in order to determine
authorship of a
specific document.
[31] The curriculum vitae of Palm has
been filed of record. The salient features thereof are that she
started her internship in
1996 at the Questioned Document Unit of the
Forensic Science Laboratory of the SA Police. In 1998 she completed
an Advanced Programme
in Forensic Criminalistics with the University
of South Africa. She attended various seminars, courses and
conferences both in
South Africa and internationally. She did a
seminar at the South African Bank Notes Company which was
specifically directed at
the unique characteristics and the
manufacturing of South African bank notes. She also attended a
United States Secret Service
Counterfeit Forensic course which was
presented by the United States Secret Service Forensic Laboratory.
[32] She did a course in printing
processes through the South African Printing Company in Honeydew.
She attended an international
conference of the American Society of
Questioned Document Examiners in Michigan, USA, where 101 experts
from around the world attended
the workshop. She also attended a
seminar on the latest technology and trends in the handwriting
analysis. She has had an uninterrupted
practical experience since
1996 in the questioned document examination field. She also did
numerous pre-trial consultations, examinations
and court cases in
high courts, lower courts in South Africa as well as in Hong Kong and
Botswana.
[33] Palm concludes her evidence on her
credentials by stating that she is a signed off independent expert.
To be signed off as
a handwriting examiner means that the person
concerned has completed all six levels of training. The six levels
of training referred
to would involve the examination of bank notes;
security features; document examination; indentation and alterations
on documents;
handwriting analysis; and analysis of signatures. Once
you have completed training on these levels one becomes an expert
forensic
document examiner who can testify on all six levels upto the
level of signatures analysis and thus be competent to testify on all

those aspects.
EXPERT EVIDENCE OF PALM
[34] Palm testified to a considerable
length about the approach and the principles applied in the process
underlining handwriting
and signature identification. She stated in
her evidence that the identification and examination of handwriting
and signature
is a process encompassing the analysis, comparison and
evaluation of discriminating elements and a study and comparison of
writing
habits. In the instance of an analysis of the document, the
unknown item as well as the known item must, by analysis, examination

or study, be reduced to their discriminating elements. These she
calls habits of behaviour or of performance.
[35] Citing Huber & Headrick in
their work: Scientific Examination, Facts & Fundamentals, she
refers to two principles based
on what the learned authors refer to
as principles of Habituation and Variation. By habituation is meant,
so Palm explained in
the course of her evidence, that people are
different because of their different collection of habits. This
manifests in individuality
of a person’s handwriting, resulting
in handwriting identification being unique to a person. Variation
in handwriting would
occur by the very fact that habitual handwriting
contains elements of variation. She cites, as an example, the fact
that a forger
may imitate one’s handwriting perfectly but, in
doing so, would not be able to get the variations right. It is these
variations
that the handwriting examiner will focus on. It is a
collection of these habits, coupled with variations thereof, that set
people
apart from each other, that is, individuality of handwriting
or, what is also often referred to as handwriting identification.
[36] And then there is a process of
comparison. This entails the discriminating elements identified in
the analysis and examination
process being compared with the known
and unknown writing. In the evaluation process, similarities or
dissimilarities in the discriminating
elements are identified and,
these similarities and dissimilarities, in themselves, carry a
certain value due to their cause, independence
or likelihood of
occurrence. The weight or significance of the similarities or
dissimilarities of each identified element must
be considered and the
explanations for their occurrence explained.
[37] Palm received instructions from
the plaintiffs to examine and determine the authenticity of the
disputed will dated 22 September
2004 which, at that stage, had
already been filed with the Master of the High Court and had been
accepted as such. In the course
of executing her instructions, Palm
examined and photographed the document at the master’s office
for purposes of compiling
her first report which she produced on 1
May 2006. At that stage Palm had already been provided with novelty
cards written by
Malan. Over and above the disputed will dated 22
September 2004, Palm was further provided with specimen signatures of
the following
documents, these being, a last will and testament of
Malan executed during May 1999; a further last will and testament by
Malan
dated 27 January 2003; and a further last will and testament
dated 21 May 2003.
[38] Over and above the specimens
referred to in the preceding paragraph, Palm was also provided with
specimen writing and signatures
of J K van der Merwe (the third
defendant) on a note written “Hallo Willie” on both
sides; and (5 x) Absa cheques bearing
numbers 0189, 0190, 0192, 0194
and 0195 in respect of account number 0712867965 and had individually
marked these specimens “F1”
to “F6”.
[39] The novelty cards as well as the
three previous wills executed in May 1999; 27 January 2003; and 21
May 2003, all containing
specimen signatures by Malan, provided Palm
with a standard comparison to look at and to compare these with the
signatures appearing
on the three pages of the disputed will.
Malan’s signatures on all the specimens provided bear legible
characteristics simply
written as “E M Malan”.
[40] For purposes of tendering her
evidence Palm prepared a court chart consisting of all the questioned
or disputed signatures
at page 1 of the disputed will. The disputed
signatures relating to the signature purportedly executed by Malan
bears legible
characteristics of “E M Malan”; the one of
E Visser also bears legible characteristics of “E VIsser”;
and,
the one of W S Thatcher, similarly bears legible characteristics
of “W S Thatcher”.
[41] Palm broke down all the signatures
at page 1 of the disputed will into discriminating elements. In
respect of Malan’s
disputed signature at page 1 of the disputed
will, Palm broke this down into 12 discriminating elements and so
were Malan’s
signatures at pages 2 and 3 of the disputed will.
Malan’s disputed signature at page 1 of the disputed will is
marked “Q1a”;
the undisputed signature at page 2 of the
disputed will is marked “Q2a”; and the similarly
undisputed signature at
page 3 of the disputed will is marked “Q3b”.
As has already been pointed out these signatures, that is, Malan’s

signatures at pages 1, 2 and 3 of the disputed will, were each broken
down into 12 discriminating elements.
[42] Based on the discriminating
elements referred to in the preceding paragraph Palm proceeded to
analyse, compare and to evaluate
the letter “E” in
Malan’s signature bearing, as it does, legible characteristics
of “E M Malan”.
The capital letter “E” of
the disputed signature at page 1 in the disputed will is created with
a large loop to the
inside of the body of the capital letter “E”
as opposed to the initial stroke (outside) of the letter “E”

without a loop as is evident if one compares it to signatures at
pages 2 and 3 of the disputed will. The discriminating elements

marked 2 and 3, at the bottom portion of the letter “E”,
is created with a vertical flattening discernible at the
discrimination element marked 2 and terminates in a prominent waved
line discernible at the discriminating element marked 3 of the

signature at page 1 of the disputed will.
[43] The letter “E” in the
signature “E M Malan” is followed by a point. In the
disputed signature at page
1, the point is placed far from the letter
“E” whereas in the undisputed signatures at pages 2 and 3
of the disputed
will, as well as all other three previous wills, the
point is placed nearer to the letter “E”. In as far as
the letter
“M” is concerned, the last vertical stroke
thereof is in a crooked line in the disputed signature whereas the
same
vertical stroke constitutes an inward curve terminating to the
right in the undisputed signatures.
[44] Palm, in the course of the
examination of Malan’s disputed signature at page 1 of the
disputed will, compares the disputed
signature with those signatures
at pages 2 and 3 of the disputed will. A similar exercise is
followed as regards the discriminating
elements marked 4 to 12 in the
signature “E M Malan”. Her examination ultimately
reveals that Malan’s signatures,
at pages 2 and 3 of the
disputed will, are not only consistent with each other but are also
consistent with all the other specimen
signatures provided to Palm
for purposes of comparison, these being, amongst others, the novelty
cards and the three previous wills.
Her examination reveals that the
signature “E M Malan” appearing at page 1 of the disputed
will is different to the
signatures “E M Malan” appearing
at pages 2 and 3 of the disputed will. Arising from this
examination, Palm concludes
that the signature of Malan appearing at
page 1 of the disputed will is a forgery.
[45] The signature of E Visser, in line
with the methodology adopted by Palm, is similarly broken into six
discriminating elements
marked 13 to 18 whilst that of W S Thatcher
is broken into 14 discriminating elements marked 19 to 32. At pages
25 to 29 of bundle
“B” Palm provides a comprehensive
description of each discrimination element commencing with the
signature “E
M Malan”, “E Visser” and,
ultimately, proceeding to that of “W S Thatcher”. Bundle
“B”,
as also pages 25 to 28 thereof, consisting of the
comprehensive analysis of discrimination elements in respect of each
disputed
signature, is part of the record so that it is not necessary
to repeat the analysis thereof in this judgment. That analysis of

discrimination elements identified in respect of each of the disputed
signatures, inclusive of elements of style and execution,
forms a
significant part of Palm’s evidence.
[46] In as far as the signatures “E
Visser” and “W S Thatcher” are concerned, and these
are the two witnesses
who purportedly signed all three pages, Palm
found that both witnesses’ signatures at page 1 of the disputed
will contain
inconsistencies with signatures on the second and the
third page of the disputed will. Palm testified in detail with
regards to
her comparison of the characteristics and discriminating
elements of witness E Visser at pages 1, 2 and 3 of the disputed will
and similarly comes to the conclusion that, in all probability, the
signature “E Visser” at page 1 of the disputed will
leans
more towards forgery.
[47] Palm comes to a similar conclusion
as regards the examination of the signature and the evaluation of the
signature “W
S Thatcher” and this is what she had to say
in her evidence:
“Once again I cannot exclude the
possibility that this is a forgery. My evidence again indicates that
the evidence suggest
that it is a different author that wrote that
specific signature. So, on a balance of probabilities, once again
leaning towards
forgery more that it leads to a genuine signature.”
[48] With regards to the original at
the Master, the examination thereof reveals that page 1 of the
original will stood out and
was inconsistent with indentations at
pages 2 and 3 thereof. Palm could not find adequate indentations at
page 2 of the original
will, but she was able to lift indentations on
page 3 of the original will.
[49] Palm also examined the phrase
“geteken te Strand op hierdie, 22 September 2004” written
at the bottom of page 3
of the disputed will. She compared this to
the specimen handwriting and signature on cheques signed and written
by J K van der
Merwe, the third defendant. Arising from this
examination, Palm concludes that the writing and the signature on the
cheques is
consistent with the phrase “Geteken te Strand, op
hierdie 22 September 2004”. Her conclusion is that the writing
on
the cheques and the writing of the phrase “Geteken te
Strand, op hierdie 22 September 2004” at page 3 of the disputed

will was written by the same author, this being J K van der Merwe,
the third defendant in these proceedings.
[50] The presentation of Palm’s
evidence on the basis of the court chart was supplemented by a very
enlarged video presentation
of all the discriminating elements
identified. Based on this presentation one could see, with the naked
eye, those aspects of
the variation on all the disputed signatures
that could not be regarded as natural changes but an earnest attempt
at imitation.
EXPERT WITNESS, GERT JAKOBUS BURGER
[51] Gert Jakobus Burger (“Burger”)
is a retired brigadier in the S A Police Service. He commenced
service with the
then S A Police in 1966. In the course of his
service he received training as a handwriting and fingerprint expert
. He holds
a National Diploma in Police Administration. In October
1966 he was transferred to the Questioned Document Department where
he
started his internal training. In 1985 he was transferred to the
S A Police, Cape Town where he was in charge of the fingerprint

office until 1988 when he was transferred to Pretoria to be in charge
of the Criminal Record Centre. He retired during 1992.
In 1993 he
commenced practice in the private sector as a handwriting and
questioned document examiner.
[52] Burger’s report is contained
at pages 34(a) upto page 36 of bundle “B”. It sets out a
series of specimen
documents furnished to him which, amongst others,
include the three previous wills executed by Malan together with the
disputed
will purportedly executed on 22 September 2004. His
examination seems to have been focused more on points of similarities
between
the specimen signatures furnished to him and the disputed
will purportedly executed on 22 September 2004.
[53] Annexed to Burger’s report
is annexure “B” which bears the heading “Beskrywing:
Ooreenstemmings Naamtekeninge
E M Malan”; a further annexure
thereto which also bears the heading “Beskrywing:
Ooreenstemmings Naamtekeninge E Visser”:
and a further annexure
which similarly bears the heading “Beskrywing: Ooreenstemmings
Naamtekeninge W S Thatcher”.
The examination and the
evaluation of the disputed signatures, based on several specimen
documents furnished to him, seems to
have been more focused on
similarities between the disputed signatures and the signatures
appended on specimen documents furnished
to him. There is no
evidence to suggest that Burger made any focus on elements such as
style and execution relating to design,
line continuity and writing
movement as is the case in the examination conducted by Palm.
Arising from the examination of such
documents, Burger came to the
conclusion that there is no indication of forgery amongst the
documents he examined and that, whatever
differences there are
between the disputed signatures and the specimen documents, are as a
consequence of natural variations.
Burger’s report did not
yield much detail other than points of similarities pointed out in
his report.
THE EVIDENCE OF VAN DER MERWE
[54] I have already made a point in
paragraph [25] of this judgment wherein I pointed out that I will
deal with the evaluation of
the evidence of Van der Merwe once I
shall have made an evaluation of the other evidence including the
evidence of the expert witnesses.
Van der Merwe testified that she
met Malan during May 1990. Shortly thereafter Van der Merwe and
Malan became friends. At that
stage Van der Merwe stayed in a house
across the street from Malan’s flat. During December 1999 Van
der Merwe moved into
a penthouse in the same block of flats where
Malan’s apartment was. Van der Merwe was subsequently
appointed a supervisor
in the same block of flats. She was
appointed during the year 2000. According to Van der Merwe, she and
Malan, as friends,
were in constant contact almost on a daily basis.
[55] Van der Merwe states that she
assisted Malan in getting into an old age home. Malan moved into the
old age home on 1 April
2003. Once Malan moved into the old age
home, Van der Merwe and her husband, with Malan’s permission,
moved into Malan’s
flat. They moved in on 1 May 2003, exactly
a month after Malan moved into the old age home. On 23 May 2003
Malan bequeathed
her flat to Van der Merwe.
[56] Whilst staying in Malan’s
flat Van der Merwe purchased flat situate at number 14B in the same
block of flats. There
was subsequently an attempt to sell Malan’s
flat but to no avail. Van der Merwe had anticipated that she would
pay the purchase
price of Flat 14B Jacoma Court out of the proceeds
of the sale of Malan’s flat. It was whilst this transaction
was still
in progress that Van der Merwe was advised of an
alternative process in the form of an acknowledgement of debt to be
executed by
Van der Merwe in favour of Malan. As has already been
pointed out, in that acknowledgement of debt Van der Merwe
acknowledged herself
to be truly and lawfully indebted to Malan in an
amount equivalent to the purchase price of flat 14B. Malan similarly
signed a
consent consenting to the proceeds of sale of her flat being
utilised towards the purchase of Flat 14B. What needed to follow was

that Malan’s will had to be changed to accommodate that
transaction. The transaction was formulated in such a way it became

binding on Malan’s executor. The end result of this
alternative process was that a bequest of a flat to Van der Merwe

was changed to a bequest to Van der Merwe of the proceeds of sale.
The acknowledgement of debt, as well as consent by Malan for
the
proceeds of a sale of her flat being utilised towards payment of the
purchase price of flat 14B, was signed on 14 September
2004. The
acknowledgement of debt contemplates the inclusion of the provisions
thereof into Malan’s will and that the provisions
of the
acknowledgement of debt be binding on Malan’s executor. That
will, incorporating the provisions of the acknowledgement
of debt as
it does, was purportedly signed on 22 September 2004. That will was
drawn by Fourie, Malan’s then insurance broker.
[57] Fourie did the draft of the will
and, once the draft was ready for signature, Fourie gave it to Van
der Merwe for the latter
to take it to Malan to sign. Fourie had
signed as a witness in all of Malan’s previous wills except the
one executed on
22 September 2004. Van der Merwe stated in her
evidence that Malan signed the will in her presence and in the
presence of two
witnesses. Once the will was signed Van der Merwe
inserted the date on which the will was signed at the bottom of the
last page
thereof. In the course of her evidence, Van der Merwe’s
legal team had to withdraw due to conflicting instructions resulting

in the postponement of the matter.
[58] The evidence of Van der Merwe is
the only direct evidence relating to signature of the will executed
on 22 September 2004 by
Malan in the presence of two witnesses.
However, Van der Merwe’s evidence cannot be viewed in
isolation. Her evidence has
to be analysed and evaluated on a
conspectus of the evidence as a whole. Van der Merwe testified that
Malan signed the will executed
on 22 September 2004 in the presence
of two witnesses, these being E Visser and W S Thatcher. These are
the two witnesses who
could not come to court to testify due to their
frailty. The fact that the two witnesses could not come to court to
tender their
evidence, does not assist Van der Merwe’s cause.
[59] I accept that Van der Merwe and
Malan met during 1990 and that, shortly thereafter, they became
friends. I further accept
that, in the course of such friendship,
Van der Merwe assisted Malan in being admitted at Ametis Old Age
Home, Strand on 1 April
2003. I further accept the fact that Van der
Merwe, together with her husband, moved into Malan’s flat on 1
May 2003 was
as a consequence of the friendship that existed between
Van der Merwe and Malan. I am even prepared to accept the fact that
Malan
bequeathed her flat to Van der Merwe was as a consequence of
the existence of a bond of friendship between the two of them.
[60] Once Van der Merwe was nominated
as an heir to Malan’s estate, Van der Merwe acquired what the
Romans used to call spes
successionis (an expectation of
inheritance). That expectation could only be realised on the death
of the testatrix and, in the
instance of this matter, on the death of
Malan. Once Van der Merwe had purchased flat 14B, it would appear,
the expectation of
inheritance had to be metamorphosed into the
acquisition of a benefit arising from such expectation which had to
be realised in
Malan’s lifetime. Suddenly a need arose for Van
der Merwe to accelerate into fruition what initially was an
expectation
of inheritance into a right to acquisition of inheritance
in Malan’s lifetime. The first attempt to do so was by way of
an attempted sale of Malan’s flat and, when that could not be
achieved, by way of an acknowledgement of debt by Van der Merwe
in
favour of Malan. Arising from the whole of this, the bequest to Van
der Merwe of Malan’s flat had had to be changed to
a bequest to
Van der Merwe of the proceeds of sale of Malan’s flat in her
lifetime.
[61] With regards to the question as to
whether the disputed signatures at page 1 of the disputed will are
those of Malan and the
two witnesses, I have before me the direct
evidence of Van der Merwe and the conflicting evidence arising from
the opinions of
the two experts in the persons of Palm and Burger.
Abdo N.O. v Senator Insurance Co Ltd
1983 (4) SA 72
(E) provides an
elaborate exposition of the way in which opinion evidence must be
handled in a civil case when there are mutually
destructive accounts
about the issue in dispute. In that case it was said that the court
must first look at the direct evidence;
if that is unacceptable, the
court must decide which opinion is preferable and base its decision
on it. (See Zeffert & Paizes:
The South African Law of Evidence,
supra, at 329).
[62] It is quite evident in the instant
of this matter that Van der Merwe has an interest in the matter in
dispute and her evidence,
and the evaluation thereof, has to be
handled in the light of this fact. In the instance of this matter I
cannot, on the basis
of Van der Merwe’s evidence, find that
Malan’s signature, as well as the signatures of the two
witnesses, at page 1
of the will dated 22 September 2004, are not a
forgery, particularly in the light of the demonstrable evidence of
Palm that Malan’s
signature, as well as the signatures of the
two witnesses, are a consequence of forgery. As for the opinions of
the two experts,
clearly the opinion of Palm and the evidence
emanating therefrom, is preferable to that of Burger for the reasons
stated in paragraph
[50] and [53] of this judgment. In view thereof
I do find that the plaintiffs have succeeded to make out a case for
the relief
sought in prayers (a) and (b) to the plaintiffs’
particulars of claim.
[63] And, then of course, there is a
question of wasted costs arising from the postponement of the matter
on 3 February 2010 and
12 April 2010. The blame for wasted costs
arising from these postponements clearly has to be laid at the door
of Van der Mewe,
the third defendant. The third defendant should,
therefore, be held liable for costs arising from those postponements.
[64] In the result I make the following
order:
(1) The last will and testament of the
testatrix, Elizabeth Magdelina Malan, dated 22 September 2004, is
declared to be null and
void;
(2) The earlier will of Elizabeth
Magdelina Malan, the testatrix, dated 21 May 2003, is declared to be
the last will and testament
of the testatrix, Elizabeth Magdelina
Malan;
(3) The Master of this court is ordered
to accept the last will and testament of the testatrix, Elizabeth
Magdelina Malan dated
21 May 2003, as her last will and testament;
(4) The third defendant is ordered to
pay the costs of suit, including wasted costs arising from the
postponement of the matter
on 3 February 2010 and 12 April 2010 on a
party and party scale, duly taxed or as agreed.
N J Yekiso
Judge of the High Court
Counsel for Plaintiffs: Adv R Maass
Attorneys Brits & Mathee
(Strand)
Counsel for 3rd Defendant: Adv T
Rudman
Attorneys: Joubert Attorneys
(Strand)