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[2017] ZAGPJHC 288
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Twine and Another v Naidoo and Another (38940/14) [2017] ZAGPJHC 288; [2018] 1 All SA 297 (GJ) (16 October 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number:
38940/14
REPORTABLE
OF
INTEREST TO OTHER JUDGES
16/10/2017
In
the matter between:
Paula
Anne
Twine
First
Plaintiff
Susan
Caroline
Killerby
Second
Plaintiff
and
Sharon
Naidoo
First
Defendant
Master
of the High Court, Gauteng
Local
Division,
Johannesburg
Second
Defendant
Coram:
VALLY
J
Delivered:
17 OCTOBER 2017
Summary:
Expert
Evidence-
expert
witness once an infrequent visitor to the court now enjoys a daily
presence in the court-principles regarding the admission
of expert
evidence-role of an expert witness- expert’s evidence must be
capable of being tested and it must be verifiable-validity
of a will
according to section 2 of the Wills Act.
Order
1.
The
will signed by Mr Twine on 7 January 2014 is invalid, null and void.
2.
The
will signed by Mr Twine on 6 November 2011 is declared valid.
3.
There
is no order as to costs.
Judgement
Introduction
[1]
John
Charles Twine (the deceased) passed away on 21 July 2014. His estate
is registered with the second defendant with Estate No.
30613/2014.
At the time of his death he was eighty-five (85) years old. He left
behind two daughters. They are the two plaintiffs
in this matter. The
deceased resided in Durban. The first plaintiff resided in
Johannesburg. The second plaintiff resided in Nelspruit.
As a result,
the two plaintiffs did not see much of the deceased.
[2]
The
deceased had a romantic relationship with the first defendant.
[1]
She was thirty-eight (38) years his junior. The relationship
commenced in 2006. Prior to his death, for some of the time during
their relationship, they lived together in a flat owned by the
deceased. At the time of his death the relationship was still in
existence. Like many relationships it was not without its problems.
[3]
The
deceased is alleged to have executed two wills during his lifetime:
one on 6 November 2011 (the 2011 will) and one on 7 January
2014 (the
2014 will). This matter concerns the validity of the two wills. The
plaintiffs maintain that the 2014 will is invalid
and should be
declared null and void. At the same time, they ask that this Court
declare the 2011 will to be the last will and
testament of the
deceased and therefore legally valid.
The 2011 will
[4]
The
relevant portion of the 2011 will provides:
“
I
bequeath the sum of
Ten
Thousand Rand (R10000)
to Johanna Susanna Kuhl.
I
bequeath the sum of
Twenty
Thousand Rand (R20000)
to Sharon Naidoo, ID […].
I
bequeath the sum of
Twenty
Thousand Rand (R20000)
to my niece, Louise Marlene Bennett, ID […]
I
bequeath the remainder of my estate in equal shares to my daughters
SUSAN CAROLINE KILLERBY, ID […] and PAULA ANNE TWINE,
ID […]
“
.
(Bold in original)
[5]
On
the same day that the deceased signed this 2011 will he executed
another document styled: “ADDENDUM TO MY LAST WILL &
TESTAMENT”. It reads:
“
I,
John Charles Twine, ID […]
,
due to my present situation with Sharon Naidoo and being well
acquainted with her history, I hereby declare that any document
not
co-signed by my niece
LOUISE
MARLENE BENNETT (nee Twine) ID […]
(specimen signature below) is null and void
”
(Bold in original)
The 2014 will
[6]
The
2014 will was executed at the Durban Central Police Station. It
reads:
“
I,
John Charles Twine (ID No. […]) unmarried, hereby revoke all
wills; codicils and other testamentary writings previously
made by me
jointly or singly and declare the following to be my Last Will and
Testament.
1.
Should
I, the testator, pass away:
1.1
I
bequeath my flat situated at
519
The Gables, Esplanade, Durban to my lifelong partner Sharon Naidoo
(ID No. […]).
1.2
I
bequeath cash of R10 000 to each of my two daughters Paula Twine
([…]) and Sue Killerby (ID No […])
1.3
I
bequeath cash of R5 000 to each of my three grand –
children Candice, Tanya and Abby
1.4
I
bequeath the residue of my estate to Sharon Naidoo
I
nominate
Sharon
Naidoo
to be the Executor of my estate.
”
(Bold
in original)
[7]
Two
witnesses, who were friends of the deceased and the defendant, signed
this will. It was signed at the Durban Central Police
Station and was
stamped by one of the police officers on duty at the time.
[8]
On
the same day, and at the same time and place (Durban Police Station)
the deceased deposed to an affidavit. The affidavit is in
manuscript
form and is written by the police officer that commissioned it. It
reads:
“
I,
John Charles Twine has a permanent partner Sharon Naidoo and daughter
Rochelle Naidoo living at the above address. Sharon takes
care of my
daily need and lives with me John Twine until my death. As per
agreement stated I John Charles Twine bequeaths my property
should
any dispute arise between John and Sharon in his last Will and
Testament. John agrees to allow Sharon to continue living
in his
flat. Should John sell the property during his life time, John agrees
to bequeath the cash from the sale of the property
to Sharon. Sharon
lives with me as a common law wife for the past eight years. Sharon
takes care of me and none of my family members.
I am old and need
Sharon only to care for me. My health is not good and I don’t
want pressure from my daughters.
”
(Quote
is verbatim)
[9]
Accompanying
this affidavit is an agreement between the defendant and the
deceased. Unlike the affidavit the agreement had been
typed. The
material terms read:
“
Now
therefore the parties agree as follows:
1.
“
Cohabitation”
John
and Sharon have been living together for the past 7 years as life
partners.
2.
Care
and support and accommodation
Sharon
has been looking after John for the past 7 years and attending to his
daily needs and comfort. John therefore bequeaths his
property known
as The Gables, situated in the City of Durban, to Sharon in his last
Will and Testament. Should any dispute arise
between John and Sharon,
John agrees to allow Sharon to continue to living in his flat. Should
no compromise be reached, John agrees
to provide alternative
accommodation to Sharon at his expense, and to compensate her for the
value of the property. Should John
sell the property during his life
time, John agrees to bequeath the cash from the sale of the property
to Sharon.
3.
The
whole agreement
The
parties record that this contract embodies the whole agreement
between them and that no addition thereto and no amendments thereof
shall be of any force and effect unless made in writing and signed by
both parties.
4.
Jurisdiction
of the magistrate’s court
The
parties consent to the jurisdiction of the magistrate’s court
having territorial jurisdiction in respect of any dispute,
which may
arise from this agreement.
”
[10]
The
agreement is co-signed by four witnesses, two of them being the same
persons who signed as witnesses to the 2014 will.
The
grounds upon which the plaintiffs seek to have the 2014 will declared
invalid, null and void
[11]
In
their Particulars of Claim (POC) the plaintiffs allege that the 2014
will is invalid because:
“
16.1
it does not comply with the formality stipulated by the deceased in
that it was not co-signed by the deceased’s
niece, Bennett;
16.2
it was not signed by the deceased;
16.3
to the extent that it might have been signed by the deceased:
16.3.1
the deceased never intended same to be a valid last will and
testament by reason of the deceased being aware
of the formality he
had stipulated and intentionally not followed;
16.3.2
the deceased lacked the mental capacity to execute a valid will by
reason of dementia brought about by the onset
of old age.
”
[12]
The
defendant denied all of these averments which resulted in a number of
factual disputes and some legal ones. The entire spectrum
of the
disputes is captured in the following two basic questions:
a.
Did
the deceased sign the 2014 will?
b.
If
so, was it legally executed?
[13]
The
plaintiffs called two expert witnesses and one witness to testify on
the rest of the factual issues. The defendant called one
expert
witness and two witnesses on the rest of the factual issues.
The
evidence of the experts
[14]
The
plaintiffs called two handwriting experts to testify: one employed by
the plaintiffs and the other representing the defendant.
Their
testimonies focussed on the signatures of the testator on the two
wills. The expert employed by the plaintiffs was
one Lourika Buckley
(Buckley). The other expert witness was employed by the Legal Aid
Board which was representing the defendant
at that time. He was
one Gerhard M Cloete (Cloete). Both experts were tasked to examine
the two signatures of the testator
on the two wills and to opine as
to whether they were the signatures of the deceased. They were both
given copies of the two wills
as well as an affidavit and an
agreement allegedly signed by the deceased in order to complete their
respective assignments.
[15]
Buckley
commenced her evidence by stridently averring that the 2014 will was
not signed by the deceased. She then explained that
she came to this
conclusion after examining the original 2014 will which she had
accessed from the Master’s office. She had
compared the alleged
signature of the deceased on that will with the alleged signature of
the deceased on the 2011 will. In her
view the signatures on the two
wills were different in length of lines and in manner of curves.
These, she said, led her to the
conclusion that the deceased had
signed the 2011 will but not the 2014 will. After being questioned by
myself she admitted that
she had no basis for boldly asserting that
the deceased had signed the 2011 will but not the 2014 will. She had
no basis to say
which will he did sign and which he did not, or even
whether he signed any of the two wills.
[16]
At
the conclusion of her evidence, it became clear that her evidence
that the 2014 will was not signed by the deceased was tailored
to
suit the plaintiffs’ case. I will say more of this in a
moment.
[17]
Cloete
was only provided with copies of the two wills. He averred upfront
that he had no basis for saying who signed the two wills,
and that he
could not say with any degree of certainty that the same person had
signed the two wills. He could only be certain
of this if he were
provided with the original versions of the wills so that he could
analyse them properly. However, from the two
copies provided to him
he could conjecture that the same person had not signed them. The
reason he was not willing to extend his
opinion beyond conjecture was
because he could not be certain that the differences he identified in
the two alleged signatures
of the deceased were not caused by the
machines used to copy them. Understandably, no party placed in issue
his honesty and reliability.
He was, in my view, undoubtedly candid.
[18]
Given
the divergent approaches adopted by the two experts it is, I believe,
appropriate to comment on the role, duties and functions
of an expert
witness as well as the role and functions of the court before
analysing their respective testimonies. This is especially
necessary
as an expert witness, once an infrequent visitor to the court now
enjoys a daily presence in the court. There are two
broad reasons for
this: (i) litigation has enjoyed an unprecedented growth over the
last seven decades; and, (ii) over the same
period the growth and
development of scientific and technical knowledge of the natural,
physical, social and commercial world has
been vast. The latter has
often resulted in the law being forced to play catch-up. The
prevalence of expert testimonies has, however,
produced challenges
for the courts, some of which are fundamental to its duties and
functions as a justice producing institution.
This is particularly so
as an entire industry of alleged experts selling their skills,
knowledge and/or experience to litigants
has developed, especially in
personal injury cases where the defendant is the Road Accident Fund.
Most of the challenges faced
by the court arise from the fact that
the basic principles about the role, relevance and value of an
expert’s testimony are
often ignored by the alleged experts
themselves and by the parties calling them. This, unfortunately, has
resulted in the unnecessary
wastage of court time and the unnecessary
incurrence of costs by parties. It is, for this reason, necessary to
recall the basic
principles involved in the admission of expert
evidence. Before doing so it is worth mentioning that as these
principles have evolved
over time they have themselves raised
challenges of their own for the courts, much of which stem from the
fact that the courts
have not always been consistent in the
application of some of the principles underlying the admission of the
evidence. Put differently,
the landscape of expert evidence has been
expansive and its topography uneven. Nevertheless, the learning over
the years has established
the following principles with regard to
expert witnesses:
a.
The
admission of expert evidence should be guarded, as it is open to
abuse.
[2]
b.
The
witness claiming to be an expert has to establish and prove her
credentials in order for her opinion to be admitted.
[3]
c.
The
expert testimony should only be introduced if it is relevant and
reliable. Otherwise it is inadmissible. It should, therefore,
only be
introduced if there is a possibility of it assisting the court in (i)
understanding a scientific or technical issue, or
(ii) in
establishing a fact either directly or by using inferential as
opposed to speculative reasoning. Testimony that falls outside
the
scope of either of the two is superfluous. In other words, there is
no need for an expert’s opinion if the court can
come to its
own conclusions from the proven facts. In such a case the expert’s
opinion should be disallowed:
“
If
on the proven facts a judge or jury can form their own conclusions
without help, then the opinion of an expert is unnecessary.
In such a
case if it is given dressed up in scientific jargon it may make
judgment more difficult. The fact that an expert witness
has
impressive scientific qualifications does not by that fact alone make
his opinion on matters of human nature and behaviour
with the limits
of normality any more helpful than that of the jurors themselves; but
there is a danger that they may think it
does.”
[4]
d.
The
expert witness should bring specialised knowledge to the court.
[5]
The specialised knowledge could be either experience, training or
study-based and the testimony that the expert witness provides
must
be entirely or substantially based on the specialised knowledge of
the expert.
e.
While
expert witnesses should confine their testimony to the area of their
expertise they may, in appropriate circumstances, trespass
outside
their area of expertise. However, to the extent that they deem it
necessary to so do they should at once declare the trespass.
They:
“
should
make clear when a particular question or issue falls outside (their)
expertise
.”
[6]
f.
Expert
witnesses must present their testimony with clarity and precision.
They must avoid obfuscation and vagueness.
g.
The
expert witness should provide any evidence outside her report if
asked to do so by the court.
h.
Expert
witnesses should state all facts and the assumptions upon which they
base their opinions.
[7]
The facts relied upon:
“
must
be proved by admissible evidence. …:
Before
a court can assess the value of an opinion it must know the facts on
which it is based. If the expert has been misinformed
about the facts
or has taken irrelevant facts into consideration or has omitted to
consider relevant ones, the opinion is likely
to be valueless. In our
judgment counsel calling an expert should in examination in chief ask
his witness to state the facts on
which his opinion is based. It is
wrong to leave the other side to elicit the facts by
cross-examination.
”
[8]
While they are
entitled to make assumptions, they should avoid basing their opinions
on conjecture or speculation for once they
do so they place their
evidence at risk of being disallowed.
i.
Expert
witnesses must:
“…
not
omit to consider material facts which could detract from (their)
concluded opinion(s)
”
[9]
j.
Expert
witnesses should at all times be candid with the court with regard to
shortcomings in their research or analysis. Expressed
differently:
“
If
an expert’s opinion is not properly researched because he
considers that insufficient data is available, then this must
be
stated with an indication that the opinion is no more than a
provisional one. In cases where an expert witness who has prepared
a
report could not assert that the report contained the truth, the
whole truth and nothing but the truth without some qualification,
that qualification should be noted in the report.”
[10]
k.
Expert
witnesses are allowed to speak to their opinions, but are not the
ones that determine the fact or facts in issue. That determination
resides within the exclusive province of the judicial officer.
[11]
An expert witness is not allowed to usurp this function nor is a
judicial officer allowed to abdicate the responsibility.
l.
Any
material relied upon by the expert witness should be provided to the
party that did not engage the particular expert witness
to furnish an
opinion. This includes any “
photographs,
plans, calculations, analyses, (or) measurements
”
[12]
m.
Expert
witnesses’ overriding duty is to the court. In this regard
they:
“…
should
provide independent assistance to the Court by way of objective
unbiased opinion in relation to matters within (their)
expertise.
”
[13]
n.
Expert
witnesses are not advocates for any party: their independence should
never be relinquished:
“
Expert
evidence presented to the Court should be, and should be seen to be,
the independent product of the expert uninfluenced as
to form or
content by the exigencies of litigation.
”
[14]
This dictum was complemented with the
following comment in the
Whitehouse
:
“
To
the extent that it is not, the evidence is likely to be not only
incorrect but self-defeating
”
[15]
o.
The
expert witness is not tied to any party. There “
is
no property in an expert witness
”.
[16]
Thus, any party is entitled to call upon the expert to testify once
that expert has furnished an opinion to one of the parties.
p.
It is
the duty of counsel and attorneys to mediate the role of the expert
witness by explaining to her the limits of her role in
the case and
by reminding her of her duty to the court.
q.
The
expert’s evidence must be capable of being tested. It must be
verifiable. In
Jacobs
the court pronounced:
"
In
cases of this sort (where the issue was whether the accused was drunk
while driving) it is of great importance that the value
of the
opinion should be capable of being tested; and unless the expert
witness states the grounds upon which he bases his opinion
it is not
possible to test its correctness, so as to form a proper judgment
upon it.
”
[17]
This principle was expanded upon and
extended, though not without controversy, by the U.S. Supreme Court
in
Daubert
where the majority of the Court concurred in the
dictum
of Blackburn J, which endorses the approach of one
philosopher of the scientific method (Karl Popper) who argued that in
order
for a theory or an explanation to be accepted as scientific it
had to, in the main, be falsifiable. Blackburn J opined:
“
Ordinarily,
a key question to be answered in determining whether a theory or
technique is scientific knowledge that will assist
the trier of fact
will be whether it can be (and has been) tested. “Scientific
methodology is what distinguishes science
from other fields of human
enquiry” …. “The criterion of the scientific
status of a theory is its falsifiability,
or refutability, or
testability.
””
[18]
r.
A
court is not bound by, nor obliged to accept, the evidence of an
expert witness:
“
It
is for (the presiding officer) to base his findings upon opinions
properly brought forward and based upon foundations which justified
the formation of the opinion.
”
[19]
And:
“
(A)
court should not blindly accept and act upon the evidence of an
expert witness, even of a finger-print expert, but must decide
for
itself whether it can safely accept the expert’s opinion.
”
[20]
s.
The
court should actively evaluate the evidence.
[21]
The cogency of the evidence should be weighed “
in
the contextual matrix of the case with which (the Court) is
seized.
”
[22]
If there are competing experts it can reject the evidence of both
experts and should do so where appropriate. The principle applies
even where the court is presented with the evidence of only one
expert witness on a disputed fact. There is no need for the court
to
be presented with the competing opinions of more than one expert
witness in order to reject the evidence of that witness. This
principle was eloquently articulated in
Davie
in the following terms:
“
F
ounding
on the fact that no counter evidence on the science of explosives and
their effects was adduced for the pursuer, the defenders
went so far
as to maintain that we were bound to accept the conclusions of Mr
Teichman. This view I must firmly reject as contrary
to the
principles in accordance with which expert opinion evidence is
admitted. Expert witnesses, however skilled or eminent, can
give no
more than evidence. They cannot usurp the functions of the jury or
Judge sitting as a jury, any more than a technical assessor
can
substitute his advice for the judgment of the Court. Their duty is to
furnish the Judge or jury with the necessary scientific
criteria for
testing the accuracy of their conclusions, so as to enable the Judge
or jury to form their own independent judgment
by application of
these criteria to the facts proved in evidence. The scientific
opinion evidence, if intelligible, convincing
and tested, becomes a
factor (and often an important factor) for consideration along with
the whole other evidence in the case,
but the decision is for the
Judge or the jury. In particular the bare
ipse
dixit
of a scientist, however eminent, upon the issue in controversy, will
normally carry little weight, for it cannot be tested by
cross-examination nor independently appraised, and the parties have
invoked the decision of a judicial tribunal and not an oracular
pronouncement by an expert.
”
[23]
t.
In
certain cases of neurological, psychological and psychiatric evidence
the expert is dependent on the honesty of the person who
is the
subject of the assessment for their evidence to be of any probative
value to the court. This problem has manifested itself
many times and
the approach of the courts is succinctly captured in the following
dictum,
which while dealing with the evidence of an expert in psychiatry is
no less applicable to an expert in the sciences of neurology
or
psychology:
“
The
weight attached to the testimony of the psychiatric expert witness is
inextricably linked to the reliability of the subject
in question.
Where the subject is discredited the evidence of the expert witness
who had relied on what he was told by the subject
would be of no
value.”
[24]
Should the subject
of the assessment not testify, it would render the views of the
expert meaningless as it was based on the untested
hearsay of the
subject of the assessment. In
Shivute
the court, confronted with exactly this situation, held that
“
[t]he
accused failure to testify stripped the opinion evidence of the
expert witness of almost all relevance and weight.
”
[25]
The principle was re-stated in
Mngomezulu
,
where the Court said that unless the psychiatric or psychological
evidence is linked to facts before court, it is just “
abstract
theory
.”
[26]
u.
Expert
witnesses who repeatedly provide expert opinions to parties –
and sometimes only for plaintiffs or only for defendants
–
should be careful not to burden the court with what some justices of
the U.S. Supreme Court called “
expertise
that is fausse and science that is junky.
”
[27]
Evidence which is repeated from case to case or an opinion that is
mildly altered from case to case is in danger of falling foul
of this
principle.
[28]
The court should scrutinise these opinions very carefully and should
not hesitate in refusing them admission, nor should it be
swayed by
the impressive scientific qualifications of the expert for these are
irrelevant, as pointed out in
Menday
:
“
However
eminent an expert may be in a general field, he does not constitute
an expert in a particular sphere unless by special study
or
experience he is qualified to express an opinion on that topic. The
dangers of holding otherwise - of being overawed by a recital
of
degrees and diplomas - are obvious; the Court has then no way of
being satisfied that it is not being blinded by pure 'theory'
untested by knowledge or practice. The expert must either himself
have knowledge or experience in the special field on which he
testifies (whatever general knowledge he may also have in pure
theory) or he must rely on the knowledge or experience of others
who
themselves are shown to be acceptable experts in that field. In
Van
Heerden v. SA Pulp and Paper Industries
,
1945 (2) P.H. J14, BLACKWELL, J., consequently refused to accept the
evidence of a scientist with general chemical qualifications
on a
special matter on which he had made no special study nor acquired any
special experience.
Where,
therefore, an expert relies on passages in a text-book, it must be
shown, firstly, that he can, by reason of his own training,
affirm
(at least in principle) the correctness of the statements in that
book; and, secondly, that the work to which he refers
is reliable in
the sense that it has been written by a person of established repute
or proved experience in that field. In other
words, an expert with
purely theoretical knowledge cannot in my view support his opinion in
a special field (of which he has no
personal experience or knowledge)
by referring to passages in a work which has itself not been shown to
be authoritative. Again
the dangers of holding the contrary are
obvious.
”
[29]
[19]
The
above principles were developed in the course of the courts
experiencing some significant challenges when faced with the issue
of
whether to admit expert evidence or not. The law is obviously still
in a state of development in this area and the list catalogued
in the
previous paragraph is not exhaustive. There is no doubt that expert
evidence plays a valuable role in assisting the courts
and other
triers of fact (tribunals and arbitrations) in establishing the true
facts and doing justice by the parties. However,
courts have
expressed their misgivings about admitting expert evidence when such
evidence overlooks or contravenes one or more
of the above-stated
principles, some of which are elementary.
[30]
In such cases courts have not hesitated in refusing to admit the
evidence.
Should Buckley be accepted as an
expert witness in this case?
[20]
The
evidence of Buckley unfortunately did not meet many of the
requirements set out in [18] above for it to be accepted and for
her
to be qualified as an expert. Most importantly, it has to be said,
she failed to extricate herself from the case of the plaintiffs
to
the point where she became an advocate for their case. As a result,
she lost the degree of independence required of an expert
witness who
provides the court with an unbiased opinion. She determinedly
asserted that the deceased had signed the 2011 will but
not that of
2014, which was exactly what the plaintiffs required, and set out to
prove. Her assertion, however, was not factually
grounded.
[21]
In
direct contrast to her testimony the other expert, Cloete,
deliberately abstained from providing an answer to the questions:
did
the decease sign only one of the two wills? and if so which one?
Unlike Buckley he was conscious of the fact that no reliable
information as to how the wills came to be signed by the deceased
were placed before them so that he could justifiably join her
in the
assertion that the deceased had signed the 2011 will but not the 2014
one. He categorically stated that he could not engage
with the
questions as to whether the deceased had signed either or both of the
wills as he was not furnished with sufficient information
to allow
him to opine, using his expert knowledge, on this issue. He could go
no further than say that the likelihood of the same
person signing
both documents is negligible but not improbable.
[22]
It
was Buckley’s inability or unwillingness to acknowledge this
that stained her testimony so badly that it became valueless.
In the
result, I have come to the conclusion that she has to be disqualified
as an expert and her testimony is to be disregarded.
[23]
Finally
on this issue, it bears mentioning that Cloete’s testimony,
too, was problematic. His opinion, though candidly expressed,
was too
uncertain to be of any probative value in determining the central
questions before this Court: Did the deceased sign either
or both of
the two wills?
[24]
However,
even if he was furnished with all the information that was made
available to this Court his opinion would be no more than
just that –
an opinion. This Court will provide the answers. The expert knowledge
of both Buckley and Cloete does no more
than empower them to furnish
opinions, which are subject to acceptance by this Court.
The
rest of the evidence of the plaintiffs
[25]
The
plaintiffs also relied on the evidence of a Louise Marlene Bennett
(Bennett), the niece of the deceased, to explain the circumstances
under which the 2011 will was signed by the deceased. She is the
person who signed the 2011 will as a witness, and is referred
to in
the Addendum to that will as the person who should co-sign any
document the deceased signs in future in order for that document
to
be valid. Her evidence was that the deceased came to her house on
Sunday 6 November 2011 for lunch and to sign the will that
was
prepared in advance by an attorney instructed by herself. She acted
as a duly authorised agent of the deceased when giving
instructions
to the attorney. The deceased signed the will in the presence of two
witnesses, who co-signed it. Thereafter both
the deceased and herself
signed the Addendum, which again, was done in the presence of two
witnesses who, too, signed it. The attorney
who drafted the will
commissioned the Addendum. Thus, this attorney was present when the
will and the Addendum were signed.
[26]
A
crucial aspect of Bennett’s evidence concerns the reason the
Addendum was drafted and signed by herself and the deceased.
She
claimed that the deceased was concerned about the defendant
manipulating him into signing a will that would not reflect his
true
wishes. She claimed that the deceased was particularly concerned at
the fact that the defendant was previously married twice,
in both
cases to octogenarians, both of whom died while their respective
marriages with the defendant still subsisted. As a result,
the
defendant benefitted from their respective estates. This evidence was
consistent with the following averments in the POC:
“
8.6
The deceased was aware that:
8.6.1
the first defendant had inherited an immovable property from a
deceased octogenarian, to wit George Riddle, whom she had married
and
who died in 2004 from unnatural causes;
8.6.2
the first defendant had thereafter formed a relationship with and
married another octogenarian who had also died from unnatural
causes
in 2006, to wit Dennis Vorster; and
8.6.3
the facts of the first defendant’s previous conduct suggested
the reasonable inference that she may be a person who
formed
relationships with men several decades her senior for the purpose of
exercising influence over them for pecuniary benefit
to herself.”
[27]
Neither
she nor the plaintiffs were able to place any document written under
the hand of the deceased or signed by the deceased
to indicate that
he held these views about the defendant. As a result, the plaintiffs
were wont to rely on her hearsay evidence
to prove that the deceased
drew the “
reasonable
inference
”
that the defendant “
may
be a person who formed relationships with men several decades her
senior for the purpose of exercising influence over them for
pecuniary benefit to herself.
”
Even if the hearsay evidence of Bennett is accepted in this
regard it still has to be explained as to why the deceased
who had
such a low regard for the defendant continued with the romantic
relationship with her for almost three years thereafter
– this
belief was supposed to have been held in 2011 (6 November 2011 is
when he is said to have signed the 2011 will) and
he passed away on
21 July 2014.
[28]
Bennett
claimed that the deceased was concerned that the defendant, who was
not married to him, but with whom he was happy to have
a
relationship, would pressurise him into signing documents that would
involve the dissipation of his assets to his detriment or
contrary to
his true intentions. To this extent she presented a view of the
deceased as a helpless old man who required protection
from himself
taking action or doing something that would either harm his interests
or be contrary to his true intentions. At the
same time, she said of
the deceased: “
uncle
John was uncle John
”;
he was a “
strong
headed and stubborn person
”,
who knew what he wanted and was capable of getting it. “
In
fact
”,
she said, coyly and without any hint of irony that “
he
was so determined in having what he wanted that had two girlfriends
at once.
”
He was, she said, firm in his views and determined in his ways. With
these averments she presented the deceased as being
someone who was
fully conscious of his affairs and determined in his behaviours. The
two presentations do not, in my view, sit
harmoniously with each
other: either he was a “
strong-headed
”
person capable of taking care of his own affairs or he was a helpless
individual in need of protection from himself. The
rest of Bennett’s
testimony did not assist in resolving this tension.
[29]
Her
testimony also focussed on the tumultuous nature of the relationship
between the deceased and the defendant. As for her testimony
concerning the deaths of the two previous husbands of the defendant
she conceded after rather mild cross-examination that she had
no
factual basis to suspect that the circumstances of their deaths
involved foul play on anyone’s let alone the defendant’s
part.
The evidence of the defendant
[30]
The
defendant testified that: the deceased had of his own accord asked
her to arrange for the 2014 will to be drafted; he voluntarily
signed
it in the presence of two witnesses on 7 January 2014; the signing
process took place at the Durban Central Police Station
in the
presence of the police officers on duty; one of those police
officers, in his capacity as Commissioner of Oaths, had administered
the oaths and certified the signatures on the affidavit and agreement
that she and the deceased had concluded at the time; both
the
agreement and the affidavit resulted from the deceased’s
unhappiness with members of his family, particularly his niece
and
daughters, for interfering in his life by persistently questioning
the continuation of his relationship with her; she took
care of him
over seven years and in that time lived intermittently with him in
his flat; his family, particularly his daughters
(the plaintiffs) and
his niece (Bennett) were quite content with her looking after him as
it suited them by relieving them of any
duty to take care of any of
his needs; now that he has departed from this planet they are making
a concerted effort, through this
litigation, to try and deny her what
is rightfully hers; the deceased signed the 2014 will because he
recognised and valued the
mutual love they had for each other and the
support they gave each other.
[31]
During
her cross-examination by Mr Peter, SC, she was asked about the
numerous conflicts she had with the deceased, which conflicts
were
publicly aired and which resulted in, at one point, her laying
criminal charges against him, and in both of them obtaining
protection orders against each other. Her response was that these
were conflicts normal to any relationship but they did not detract
from the fact that they loved and cared for each other. She was asked
about her previous relationships, in particular her relationship
with
her husbands who were also much older than herself and who died while
the marriage between her and them still subsisted. She
unhesitatingly
admitted to these two facts as well as to the fact that she
benefitted materially from their estates. The questioning
was
deliberate and pre-designed. It was anchored in paragraph 8.6 of the
POC quoted above in [26]. Mr. Peter signed the POC, and
therefore it
can safely be inferred that from inception the plaintiffs as well as
their counsel had decided that it was important
for their case that
these facts about the defendant’s past and about her
relationship with the deceased be highlighted. They
believed that
these facts supported their claim that the deceased did not sign the
2014 will. The defendant was asked if she had
commenced a
relationship with the deceased whilst still married to one of her
previous husbands. She admitted to this fact too,
but supplemented it
by saying that at the time she and the deceased commenced their
relationship the deceased was the best friend
of her husband.
[32]
At
this point the cross-examination took an unfortunate turn and had to
be stopped by myself in order to prevent the proceedings
from
degenerating into a morass of irrelevant information, not all of
which could be said to be factual. However, it is necessary
to say a
word or two about this aspect of the cross-examination. Bearing in
mind that the questions focussed on the previous marriages
of the
defendant they were, obviously, of a very personal nature. They were
also presented in a tone and manner that caused the
defendant offence
and resulted in her claiming that she was offended by the questioning
and that she believed the questions to
be “
racist
”
[31]
.
What was clear from the questioning was that it implied that the
defendant was a woman of loose morals who only married older
men in
order to take advantage of them both during their lifetimes and after
their deaths. To this extent the cross-examination
bore the
hallmarks of the sexist presumption that young women who engaged in
relationships with older men do so only for material
gain. In
response the defendant pointed out that the deceased had no qualms
about having another girlfriend when he commenced his
affair with
her, and about engaging in this relationship when he was fully aware
that she was married to his best friend. It, therefore,
bears
mentioning that to the extent that the cross-examination focussed on
impugning the morals of the defendant while ignoring
those of the
deceased it unduly discriminated against her
vis
a vis
the deceased. In my view, there simply was no need to discriminate
between the defendant and the deceased when it came to morals.
This
aspect was attended to by the defendant who during this
cross-examination pointed out that while the cross-examination only
focussed on her (and her morals) it had to be borne in mind that the
relationships between her and her previous husbands, including
the
relationship between her and the deceased, were only possible because
of the bilateral consent and the joint benefits that
prevailed in
each of those relationships. This claim of hers was not dispelled by
the cross-examination. The main reason it could
not be dispelled is
because the plaintiffs had placed no evidence of their own about
those relationships even though they, from
inception of their case,
believed that the nature of those relationships were central to their
case that the deceased did not sign
the 2014 will. As a result, they
found themselves in a position where they had to try to elicit the
necessary facts through robust
cross-examination. But the
cross-examination failed to do so. At the conclusion of the
cross-examination it was clear that
the deceased was as culpable in
establishing the relationship with the defendant as she was, and that
the benefits derived from
the relationship over the years were
enjoyed by both of them. Hence, the plaintiffs had failed to prove
that the origins and nature
of the relationship between the defendant
and the deceased, and that the past relationships of the defendant,
were strong indicators
that the deceased did not sign the 2014 will.
[33]
The
other witness called in support of the defendant’s case, was a
Sunporunam Govender (Govender). Her testimony focussed
on the
circumstances surrounding the signing of the 2014 will. She signed
this will as a witness. She said that on the 7 January
2014 she and
her husband came across the defendant and the deceased in the street.
As the two couples were acquainted with each
they naturally engaged
in social conversation. She and her husband were informed that the
defendant and the deceased were on their
way to the police station to
sign a will and some other documents. She and her husband were asked
if they would accompany the defendant
and the deceased in order to
attest to the signature of the deceased and to co-sign the 2014 will
and the agreement between the
defendant and the deceased. She or her
husband (she was not sure who it was) informed the defendant and the
deceased that they
were in a hurry to get somewhere. They were
assured that the process would not take long so they agreed to
assist. Once they arrived
at the police station, she and her husband
signed the documents (the agreement and the 2014 will) and
immediately left. They were
the first to sign the documents. At the
time they signed the documents neither the deceased nor the defendant
had signed any of
the documents. They left before witnessing either
the defendant or the deceased signing any documents. Hence, the 2014
will was
not signed by the deceased in their presence even though it
reflects their respective signatures as witnesses.
The
relevant facts established by the
viva
voce
evidence
[34]
The
viva
voce
evidence assessed collectively established the following relevant
facts:
a.
The
deceased signed the 2011 will.
There
was no disagreement between the parties in this regard. The defendant
did not in any material way challenge the evidence of
Bennett that
the deceased signed the 2011 will as well as the Addendum to that
will.
b.
The
deceased signed the 2014 will.
In
their POC the plaintiffs alleged that the deceased did not sign the
2014 will. At the trial they relied on the evidence of the
two
experts to establish this as a fact. However, their evidence, as
mentioned above, failed to do so. It was too uncertain to
exclude the
possibility that the deceased had signed it. The plaintiffs were then
forced to deal with the
viva
voce
evidence of the defendant who was adamant that the deceased signed
the 2014 will. The plaintiffs were not able to dispel this evidence.
I was not able to find any contradictions, nor were the plaintiffs
able to point to anything that undermined the defendant’s
evidence to the extent that it was unbelievable or improbable. Mr
Peter drew attention to the fact that Govender’s version
of how
she and her husband came to be approached by the defendant and the
deceased to witness the signing of this will was too
sketchy and too
accidental to bear any semblance of reality. He urged that on this
basis it should be found that the deceased did
not sign the 2014
will. Thus, he argued that Govender should not be believed. There is
no doubt that Govender’s evidence
in this regard was not very
illuminating. However, it would, in my view, be a stretch to find
that merely because Govender and
her husband met the defendant and
the deceased by chance on that specific day, such meeting did not
take place at all and that
therefore the deceased did not sign the
2014 will. There is, it must be remembered, the evidence of the
defendant that has
to be factored into this equation. Her evidence
that the deceased signed this will on that day with Govender and
Govender’s
husband being present was unequivocal and it was not
challenged by the plaintiffs during her cross examination in any
meaningful
way. Thus, it would be incorrect in these circumstances to
find that on the basis of the vagueness of the version of Govender as
to how she and her husband came to meet the deceased and the
defendant on that day that she, Govender, was either reckless about
the truth, or that she deliberately fabricated the version. On the
contrary, the collective evidence of Govender and the defendant
show
that the deceased signed the 2014 will on that day at the police
station. And, so I find.
c.
The
2014 will was signed by the deceased after the two witnesses to the
will – Govender and her husband – had already
left and
therefore was signed in their absence.
This fact is established by the
unequivocal and uncontradicted evidence of Govender.
The
relevant law and its application to the facts
[35]
In
terms of s 2(1)(a)(ii) of the
Wills
Act, No 7 of 1953
(Wills
Act), no will is valid unless the signature made by the testator is
made “
in
the presence of two or more competent witnesses present at the same
time.
”
Accordingly, the witnesses who attest to the signature of the
testator have to be present when the testator actually signs
the
will. This requirement is mandatory. If not met the will is invalid
for want of compliance with a statutorily required formality.
[36]
We
know from the established facts referred to in [34(c)] above that
both witnesses who were supposed to attest to the signing of
the 2014
will by the deceased were not present when he signed it.
[37]
Hence,
the 2014 will is invalid. In the result the plaintiffs are entitled
to an order that declares this will to be invalid, null
and void. At
the same time it has to be noted that there was no evidence that
there was any irregularity in the execution of the
2011 will. As the
2014 will is declared invalid that leaves the 2011 will as the last
will and testament of the deceased. Accordingly
the plaintiffs are
entitled to a declaration that the 2011 will is valid.
Costs
[38]
The
plaintiffs, rightfully, did not ask for any costs.
Order
[39]
The
following order is made:
4.
The
will signed by Mr Twine on 7 January 2014 is invalid, null and void.
5.
The
will signed by Mr Twine on 6 November 2011 is declared valid.
6.
There
is no order as to costs.
_____________________
VALLY
J
Representatives
for the plaintiffs J Peter SC assisted by R J Stevenson
Instructed
by Clark Attorneys
Representative
for the first defendant Self-represented
[1]
The second
defendant did not participate in this litigation, hence for purposes
of this judgment the first defendant will henceforth
be referred to
as “the defendant”.
[2]
Kozak v Funk
1995 CanLII 5847 (SK QB)
at 3
[3]
Menday v Protea
Assurance Co. Ltd
1976 (1) SA 565
(E) at 569B-C;
Holtzhauzen
v Roodt
1997 (4) SA 766
(W) at 772G-H
[4]
R v Turner
[1975] 1 All ER 70
at
74d-e
[5]
Holtzhauzen
,
n3 at 772C
[6]
National
Justice Compania Naviera S.A. v Prudential Assurance Co. Ltd (“The
Ikarian Reefer 1”)
[1993]
2 Lloyds Rep 68
at 81. This case was taken on appeal however the
principles iterated by the court
a
quo
were left intact by the Appellate Court. In fact,
The
Ikarian Reefer 1
has enjoyed significant influential status in many common law
jurisdictions around the world. The judgment of the Appeal Court
is
reported as
National
Justice Compania Naviera SA v Prudential Assurance Co Ltd
[1995]
1 Ll L R 455 (CA) (“
The
Ikarian Reefer 2”)
.
This particular principle was reiterated in
The
Ikarian Reefer 2
at 497.
[7]
R
v Jacobs
1940
TPD 142
at 146-7; See also:
R
v Barry
1940 NPD 130
at 132;
R
v Theunissen
1948
(4) SA 43
(C) at 46;
S
v Adams
1983 (2) SA 577
(A) at 586A-C;
S
v Van As
1991 (2) SACR 74
(W) at 86c-e;
Holtzhausen
,
n3 at 773A-B; See also
The
Ikarian Reefer 1
,
n6 at 81
[8]
R v Turner
,
n4 at 73d and 73f-g; See also,
Holthausen
,
n3 at 772H
[9]
The Ikarian
Reefer 1
,
n6 at 81
[10]
Id.
[11]
All the cases
cited in n7
[12]
The Ikarian Reefer 1
,
n6 at 81
[13]
Id.;
Meadow
v General Med Counci
l
[2007] 1 All ER 1
(CA) at [21]
[14]
The Ikarian
Reefer 1,
n6
at 81;
Whitehouse
v Jordan
[1980] UKHL 12
;
[1981]
1 All ER 267
(HL) at 276b
[15]
Whitehouse v
Jordan
,
n14, at 276b
[16]
Meadow v
General Med Council
n13 at [23]
[17]
R v Jacobs
,
n7; See further all the cases cited in n7, save for
The
Ikarian Reefer 1
[18]
Daubert
v Merril Dow Pharmaceuticals Inc.
[1993] USSC 99
;
509 U.S. 579
(1993) at 593. For an account of the numerous potential
problems this approach invites see: Suzanne Orofino,
Daubert
v Merril Dow Pharmaceuticals Inc.: The battle over the admissibility
standards for scientific evidence in court
,
Journal of Undergraduate Sciences 3: 109 – 111 (Summer 1996);
David L Faigman,
Mapping
the labyrinth of scientific evidence,
Hastings Law Journal, No 46, 555; Gary Edmond,
Judicial
Representations of Scientific Evidence,
The Modem Law Review, v 63 no 2, March 2000. Needless to say
that this list constitutes a tiny fraction of the commentaries
that
were generated by the majority decision in
Daubert
.
For a fuller account see the citations in each of the articles
listed here. A key criticism levelled at the approach advanced
by
the majority in
Daubert
is that it endorsed and encouraged the courts to follow one school
of thought engaged in the field of epistemology (the theories
of
knowledge), that of Karl Popper. This approach, it has been argued,
is not the only one that leads to the truth and can, at
times,
hinder the search for the truth. Thus, it does not always advance
the interests of justice. However, a debate on which
approach is
best suited in a particular case falls outside the scope of our
present concern which is to identify the principles
concerning
expert evidence that have evolved over time.
[19]
R v
Theunissen
, n7
[20]
R v Nksatlala
1960 (3) SA 543
(A) at 546C-D
[21]
All the cases
cited in n7, and
Daubert
,n18
[22]
S v M
1991 (1) SACR 91
(T) at 100a
[23]
Davie v
Magistrates of Edinburg
[1953] SC 34
at 40. It bears mentioning that unlike an expert
witness, a judicial officer is often tasked to balance the
probabilities derived
from the admitted factual evidence, something
the expert witness must never do or be allowed to do. The focus here
is on admitted
evidence. It is trite that not all evidence is
admissible. However, the decision as to which evidence is admissible
and which
not is something that is not often appreciated by
non-legal persons. Experts who trespass into this area are in danger
of finding
themselves unable to appreciate the nuances involved, in
for example, accepting or rejecting hearsay evidence, and then
ignore
admissible, or include inadmissible, evidence in the
balancing exercise- thus indelibly staining their evidence and
rendering
their conclusions nugatory.
[24]
S v Mthethwa
(CC03/2014)
[2017] ZAWCHC 28
at
[98]
, but see all the cases cited at
[97] – [99] as well as
R
v Turner
,
n4 at 73f
[25]
S v Shivute
1991 (1) SACR 656
(Nm) at 661H
[26]
S v Mngomezulu
1972 (1) SA 797
(A) at 798F-799
in
fin
[27]
Kumho Tire Co.
v Carmichael
[1999] USSC 19
;
526 U.S. 137
(1999) at 159 (per Scalia J, with O’Connor and
Thomas JJ concurring)
[28]
A good example of
this is the opinions of some neurosurgeons in the personal injury
cases where the Road Accident Fund is the
defendant. In almost all
these cases the expert witness opines that the plaintiff suffers
from “
mild
to moderate brain injury
”,
based on what the plaintiff said to the expert during a brief
consultation. Another example of this would be the opinions
of some
Industrial Psychologists in the same set of cases.
[29]
Menday
,
n3, at 569E-H, citations omitted; See, too, the quote in sub-para c.
above
[30]
R v Turner
,
n 4 at 73d
[31]
She is of Indian
descent while the deceased was of European descent.