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[2014] ZAFSHC 141
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M and Another v Master of the High Court and Others (1680/2014) [2014] ZAFSHC 141 (4 September 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
No.: 1680/2014
In
the matter between:-
F[…]
G[…] M[…]
….........................................................................................................
First
Applicant
M[…]
G[…] M[…] N.O.
…..........................................................................................
Second
Applicant
In
his capacity as father and guardian of
B[…]
P[…] D[…] M[…]
and
K[…]
L[…] M[…]
and
THE
MASTER OF THE HIGH COURT
…................................................................
First
Respondent
D[…]
M[…] M[…]
….................................................................................................
Second
Respondent
P[…]
S[…] G[…] M[…]
…........................................................................................
Second
Respondent
FAKUDE
SARAH LETSABA
…...............................................................................
Fourth
Respondent
JAN
BRUWER HUGO N.O.
…...................................................................................
Sixth
Respondent
JUDGMENT
BY:
POHL,
AJ
HEARD
ON:
28
AUGUST 2014
DELIVERED
ON:
4
SEPTEMBER 2014
INTRODUCTION
:
[1]
The deceased in this matter, the late B[…] M[…], died
on 11 February 2013. After her death, it appeared
that she left
behind two Wills. The first in time was dated 4 April 2012 and
the second in time was dated 4 February 2013.
The Master of the High
Court accepted the latter Will as the deceased’s Will and
Testament. This is an application by the
applicant for the following
relief:
(a)
that the document titled “Last Will and Testament” dated
4 February 2013 (hereinafter referred to as the Second
Will), be
declared invalid and not the Last Will and Testament of the late B[…]
M[…].
(b)
that the document titled “Testament” dated 4 April 2012
(hereinafter referred to as the First Will) be declared
the valid
Last Will and Testament of the late B[…] M[…].
(c)
that the first respondent (the Master of the High Court) be directed
to administer the estate of the late B[…] M[…]
in terms
of the First Will.
[2]
The first respondent, being the Master of the High Court, filed a
notice to the effect that it abides by the court’s decision.
The application is only opposed by the second and the third
respondents. Although service was effected on the fourth and
fifth respondent they did not file any papers or notices.
FACTS
AND/OR FACTORS WHICH ARE COMMON CAUSE OR NOT IN DISUTE:
[3]
The first and the second applicant is the same person. He
brings this application as first applicant in his personal name
and
as second applicant in his capacity as father and guardian of his two
children. I will hereinafter refer to the first
and the second
applicant, collectively, as the applicant. The applicant, the
second respondent and the third respondent are
all children of the
deceased, B[…] M[…], who died on 11 February 2013.
[4]
It is common cause between the parties that the First Will is a valid
Will in terms of the Wills Act, Act 7 of 1953. In terms
of the First
Will, the deceased bequeathed her estate to the applicant, his two
children and the second and third respondents.
[5]
In terms of the document purporting to be the Second Will of the
deceased, she revoked the First Will and then bequeathed her
estate
to the applicant, the second respondent and the third respondent.
The only other bequest in this document was a special
bequest to the
fifth respondent, who apparently was an employee of the deceased.
The applicant’s children were thus
left out in the Second Will.
[6]
It is common cause that the second respondent produced the Second
Will after his mother passed away, indicating that the deceased
gave
the Will to him a few days prior to her death.
[7]
The Second Will consists of one page and appears to be signed at the
bottom thereof by the testator, the late B[…] M[…].
Right below the testator’s signature, it was also signed by two
witnesses. The one witness is identified as being one
Johannes
Mthimkhulu. This Mr Johannes Mthimkhulu made two statements
that forms part of the papers and which will be referred
to later in
this judgment. The other witness to the Second Will could not
be identified. There is also a third person
that signed the
Will as interpreter.
[8]
Ex facie
the document, the Second Will appears to be a valid Will in
accordance with the requirements of the Wills Act, Act 7 of 1953.
When the Second Will was produced, the applicant felt that it was a
fraudulent document. He then proceeded to lay a charge
of fraud
in relation to this Will at the South African Police. The South
African Police then investigated the matter and took a
number of
statements in this regard. In the end the docket was closed due
to lack of evidence. The Police docket, however,
forms part of
the papers before this court. The police,
inter
alia
, took a statement from the
abovementioned Johannes Mthimkhulu. Mr Mthimkhulu also made an
affidavit to the applicant’s
legal representatives, and this
affidavit forms part of the replying papers before this court.
[9]
For purposes of this judgment it is necessary to repeat certain
sections of the two statements made by Mr Mthimkhulu. In the
police
affidavit he,
inter alia
,
declares the following:
“
That
on the date 04/02/2013 I never signed any Will/statement of Mrs B[…]
M[…]… I also do not know any Patric
Nthagase (that is
the interpreter that allegedly also co-signed the Second Will) whom
is stated on that Will M[…] G[…]
M[…] shown to
me on the date 31/03/2014 as an interpreter/tolk.
I
do not know why my name is doing on that Will that I never-ever
signed or see before to days date 2014/03/31.”
[10]
In the affidavit of Mr Mthimkhulu that forms part of the replying
papers he declares the following:
“
4.
I wish to specifically confirm the following:
4.1
I did not sign the document dated the 4
th
of February
2013;
4.2
I was not present at the time when a document was signed by any of
the parties appearing on the documents;
4.3
I cannot remember my exact whereabouts on the 4
th
of February 2013 but I would have remembered signing a document where
the deceased also signed.”
[11]
The only reply the second respondent had to the abovementioned police
statement of Mr Mthimkhulu is contained in paragraph
20 of the
opposing papers, which reads as follows:
“
Ad
paragraph 27 thereof
My
mother was a traditional healer and she had many patients and knew a
lot of people which I don’t know. I also do
not know the
other witness. I strongly deny that the affidavit attached as
annexure B was drafted by Johannes Mthimkulu.
I know the
handwriting of my brother, the applicant, and this affidavit is
clearly drafted by him.”
THE
LEGAL POSITION:
[12]
Section 2 of the Wills Act, Act 7 of 1953,
inter
alia
, provides as follows:
“
2
Formalities required in the execution of a will
(1)
Subject to the provisions of section 3
bis
-
(a)
no will executed on or after the first day of January, 1954, shall be
valid unless-
(i)
the will is signed at the end thereof by the testator or by some
other person in his presence and by his direction; and
(ii)
such signature is made by the testator or by such other person or is
acknowledged by the testator and, if made by such other
person, also
by such other person, in the presence of two or more competent
witnesses present at the same time; and
(iii)
such witnesses attest and sign the will in the presence of the
testator and of each other and, if the will is signed by such
other
person, in the presence also of such other person;”
[13]
The following dictum appears at page 760B of the decision of
Harpur
NO v Govindamall and Another
[1993] ZASCA 110
;
1993
(4) SA 751
(A):
“
The
requirement for signatures of witnesses to a will provides a main
safeguard against the perpetration of frauds, uncertainty
and
speculation. Disputes regarding the validity of a will can arise only
after the death of a testator, which may occur many years
after it
was executed. Ordinarily the only persons other than the testator who
are likely to have knowledge of the circumstances
of the execution of
a will are the witnesses who, being present, personally saw or
perceived it, and can testify in that regard.
That purpose fails when
the witnesses cannot be identified.”
THE
MAIN ISSUE IN DISPUTE:
[14]
The main issue in dispute is whether or not the Second Will complied
with the formalities required for the execution of a valid
Will as
envisaged by section 2 of the Wills Act, Act 7 of 1953.
APPLICABILITY
OF THE FACTS TO THE LEGAL POSITION:
[15]
A proper reading of paragraph 20 of the second respondent’s
opposing affidavit, referred to above, clearly indicates
that, at
best, the second respondent doubts whether the affidavit Mr
Mthimkhulu made to the police was drafted by him. He
says that
the handwriting is his brother’s and it must have been his
brother that drafted the document. This is clearly
untenable.
It must be borne in mind that this is an affidavit in a police
investigation which was taken down by the police.
In any event,
this affidavit to the police was reaffirmed in Mr Mthimkhulu’s
further affidavit annexed to the replying papers.
The nett result of
this is that
ex facie
the
papers, there appears to be no factual dispute as to the factual
allegations made by Mr Mthimkhulu in his affidavit.
[16]
Ms Oosthuizen, who appeared for the second and the third respondents,
submitted that the court cannot place any reliance on
the version of
Mr Mthimkhulu, because his affidavits, according to her, differ
substantially. This submission by Ms Oosthuizen
is clearly without
substance. A proper reading of both the affidavits indicates
that in both affidavits the deponent, Mr
Mthimkhulu, stated that he
did no sign any Will of the deceased. The fact that his name
appears there and that there is a
signature appended thereto, does
not mean that he put it there. It must clearly follow, that if
Mr Mthimkhulu is to be believed,
then he could never have been
present when anybody affixed their signatures to the Second Will.
[17]
In the premises I am satisfied and accept the evidence as contained
in the two affidavits of Mr Mthimkhulu, namely that he
did not sign
the Second Will. I accept his evidence that he was not present
at the time when the Second Will was signed by
any of the parties
appearing on the Second Will.
[18]
Both Mr Roux and Ms Oosthuizen submitted to the court that should the
court have any doubts about this issue, that I then should
exercise
my discretion and refer the application for the hearing of oral
evidence on this point in terms of the provisions of Rule
6(5)(g).
My above acceptance of Mr Mthimkhulu’s evidence makes this
unnecessary.
[19]
The nett result of my acceptance of Mr Mthimkhulu’s evidence is
that the Second Will is invalid for want of compliance
with the
formalities as required by section 2 of the Wills Act, Act 7 of
1953.
ORDERS:
[20]
In the premises I make the following orders:
1.
There will be an order in terms of prayers 1, 2 and 3 of the Notice
of Motion; and
2.
The second and third respondents are ordered to pay the applicant’s
costs of the application.
_______________
L.
le R. POHL, AJ
On
behalf of applicant: Adv L.A. Roux
Instructed
by:
Plaatjies
Attorneys
BLOEMFONTEIN
On
behalf of respondents: Ms M.A. Oosthuizen
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN