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[2013] ZAGPPHC 85
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Dikgale v Master of the High Court, Polokwane and Others (21381/11) [2013] ZAGPPHC 85 (26 March 2013)
NORTH
GAUTENG HIGH COURT PRETORIA
CASE
NO: 21381/11
DATE:26/03/2013
In
the matter between:
MAFULUDI
JUDITH
DIKGALE
..........................................................................
Applicant
and
THE
MASTER OF THE HIGH COURT,
POLOKWANE
...................................
First
Respondent
LINAH
LEKOTA
....................................................................................................
Second
Respondent
MAROPING
JAN
DIKGALE
...............................................................................
Third
Respondent
MALEHU
GRACE
DIKGALE
..............................................................................
Fourth
Respondent
LETHEBE
HENDRICK
DIKGALE
…..................................................................
Fifth
Respondent
LEDILE
ALBERT
DIKGALE
...............................................................................
Sixth
Respondent
SELLO
HAMILTON
DIKGALE
............................................................................
Seventh
Respondent
LUCY
MASEREMI
DIKGALE
..............................................................................
Eighth
Respondent
RAESETJA
DAMARIS
DIKGALE
….................................................................
Ninth
Respondent
TEFFO, J:
INTRODUCTION
[1]
The applicant seeks an order for condonation of the non-compliance
with certain formalities prescribed by the Wills Act 7 of
1953 (“the
Act) in respect of a document written by Raesetja Damaris Mahlo (“the
deceased').
[2]
She also seeks an order that the said document be declared in terms
of section 2(3) of the Act to be the will of the deceased.
[3]
The applicant further applies for an order that the first respondent
be authorised and ordered to accept the said document as
the
deceased’s will for purposes of the Administration of the
Estates Act 66 of 1965 as amended.
FACTS
WHICH ARE COMMON CAUSE BETWEEN THE PARTIES
[4]
The following facts are common cause between the parties:
4.1
The applicant is the deceased’s niece in that her deceased
father is the brother to the deceased.
4.2
The deceased was married and she and her late husband did not have
children of their own during their life time.
4.3
The deceased informally adopted the applicant at a very tender age
and she raised and brought her up. She stayed with the deceased
at
her house. The deceased took her to school and paid her tuition fees.
4.4
The deceased passed on on the 3rd day of September 2009 after she was
admitted at Maphutha Malatji Hospital in Phalaborwa.
4.5
Even after the deceased’s death, the applicant is still staying
at Erf No 2875 Namakgale B in a house that belonged to
the deceased
and her late husband.
4.6
The deceased’s husband predeceased her.
4.7
After her husband’s death the deceased continued to stay at the
said house.
4.8
The house is currently registered in the name of the deceased.
4.9
After the deceased’s death a diary for 2006 was found in her
belongings.
4.10
On the dates 4, 5 and 6 September 2006 of the diary the following
words are written and signed allegedly by the deceased:
“
Ge
ke hwile le se tshwenye ngoanaka. Dilo tsaka ke tsa gagwe. Le
tshentshe sefane. A bitse ka sefane saka le monna.”
4.11
The following words appear on dates 14, 15 and 16 September 2006 of
the diary:
“
Ba
go nyale ba ga Mahlo. R10 000-00. Mafuludi Judith Dikgale. O dule ka
mo gae o age (sware lapa la ga A. S. le D.R. Mahlo gabotse.
O
tsofalele ka mo 2875 Namakgale. Dilo ka moka ke tsa M.J. Dikgale. Wa
gago
Then
there is a signature allegedly of the deceased.
4.12
After the deceased’s death the applicant together with the
second respondent accompanied by one Mr Jerry Mahlo and Mr
Ntjaka
Amos Madike went to the office of the first respondent and the
applicant was appointed the Executrix in the estate of the
deceased.
4.13
Attorneys Joubert and May of Tzaneen were instructed to administer
the deceased’s estate after it was reported to the
first
respondent. The first respondent advised them by letter that the
extracts from the 2006 diary of the deceased cannot be regarded
as a
will of the deceased.
[5]
The second respondent contends that there are disputes of fact in the
application which cannot be resolved on the papers. Further
that the
applicant anticipated such disputes of facts when she launched this
application. She further contends that she is the
only surviving
sibling of the deceased who should have been appointed as the
executrix in the estate of her late sister. She also
contends that
the family has never agreed that the applicant should be appointed as
executrix in the estate of the deceased. She
alleges that she has
never seen the original extracts of the diary of the deceased and
that the copies thereof which have been
annexed to the applicant’s
founding affidavit have been tempered with. She avers that there are
some additional notes to
the extracts of the diary. Further that the
copies of the extracts have not been certified by a Commissioner of
Oaths. According
to her the applicant did not take the copies for
certification as she knew that the Commissioner of Oaths would notice
that they
had been tempered with and not certify them.
[6]
The second respondent also challenges the interpretation of the
wording used in the extract. According to her the contents of
the
extract do not make sense literally and that the interpretation
submitted by the applicant is not what is written in the diary.
She
avers that there is a possibility that there are other pages which
link up with the extracted pages which can be read together.
[7]
Other issues raised were that the applicant is not the person who
collected the deceased’s belongings at the hospital
but one
Selina Thobejane, the sister to the deceased’s husband.
[8]
Accordingly the second respondent contends that based on the above
factual disputes the application should be dismissed with
costs,
alternatively it should be referred for oral evidence or trial so
that she can be afforded the opportunity to cross-examine
the
handwriting expert and the person who translated the extracts of the
diary.
[9]
Because of the issues raised by the second respondent the applicant
obtained a certified translation of the diary extracts which
translation has been verified by one Motlokwe Mphahlele in an
affidavit.
[10]
A translation of the extracts as quoted in paragraphs 4.10 and 4.11
of this judgment is the following:
“
When
I am dead do not trouble my child as my property belongs to him/her
and his/her property belongs to me. Please change his/her
surname to
that of me and my husband."
B
Mahlo
“
May
the Mahlo family marry you with R10 000-00. Mafuludi Judith Dikgale
you must stay at the home of D.R. Mahlo and build (sustain)
it. Get
older at No. 2875. Everything belongs to M.J. Dikgale. ”
[11]
The issues for determination are whether the application raises
disputes of fact which cannot be resolved on the papers. Should
I
find that such disputes of fact exist, I still have to determine
whether they are genuine bona fide disputes of fact. In case
I find
that no such disputes of fact exist, I have to determine whether the
extracts found from the deceased’s diary comply
with the
requirements laid down in section 2(3) of the Act.
[12]
In the case of Room Hire Co (Pty) Ltd v Jeppe Mansions (Pty) Ltd
1949
(3) SA 1155
(T) at p 1165 Murray, then AJP said:
“
A
bare denial of the applicant’s material averments cannot be
regarded as sufficient to defeat applicant’s right to
secure
relief by motion proceedings in appropriate cases. Enough must be
stated by the respondent to enable the Court to conduct
a preliminary
examination ... and to ascertain whether the denials are not
fictitious intended merely to delay the hearing.”
He
went on to say:
“
The
respondent’s affidavits must at least disclose that there are
material issues in which there is a bona fide dispute of
fact capable
of being decided only after viva voce evidence has been heard
[13]
In Soffiantini v Mould
1956 (4) All SA 171
(E) the following
principle was articulated:
“
If
by a mere denial in general terms a respondent can defeat or delay an
applicant who comes to court on motion, then motion proceedings
are
worthless, for a respondent can always defeat or delay a petitioner
by such a device. It is necessary to make a robust, common-sense
approach to a dispute on motion as otherwise the effective
functioning
of
the court can be hamstrung and circumvented by the most simple and
blatant stratagem. The court must not hesitate to decide an
issue of
fact on affidavit merely because it may be difficult to do so.
Justice can be defeated or seriously impeded and delayed
by an over-
fastidious approach to a dispute raised in affidavits.”
[14]
The applicant maintains that she never anticipated that the second
respondent would contest her appointment as executrix and
the
contents of the diary extract. According to her the second respondent
together with other family members accompanied her to
the first
respondent’s office where the second respondent was interviewed
by employees of the first respondent. The second
respondent informed
the employees of the first respondent in her presence that it was the
deceased’s wish that the applicant
should inherit her property
and that she does not object to her being appointed the executrix in
the estate of the deceased. Although
the second respondent does not
deny that she went with the applicant together with one Jerry Mahlo
and Amos Madike to the first
respondent’s office as alleged by
the applicant and that the applicant was on that day appointed the
executrix in the estate
of the deceased, she denies that she
consented to the applicant’s appointment as executrix in the
estate of the deceased
and avers that she was tricked into putting
her thumb print on the documents that were completed as the documents
were not explained
to her. This allegation by the second respondent
is very strange and does not make sense. She does not say she was
forced to put
her thumb print on the documents. She does not deny
that she is the one who told the officials of the first respondent
that the
deceased always wanted the applicant to inherit her entire
estate. She only says she did not consent to the applicant being
appointed
executrix in the estate of the deceased because in her
family they do things through meetings with elders. To say that she
was
tricked into putting her thumb print on the documents is an
afterthought. The second respondent should have shown her
disagreement
with what the applicant was doing by refusing to go with
her to the first respondent’s office from the onset. It indeed
does
not make sense for her to go there, put her thumb print on the
papers given and then retract and say she was tricked into doing
what
she did.
[15]
It also does not make sense for the second respondent to contend that
her family never agreed that the applicant should be
appointed the
executrix in the estate of the deceased. If one looks at the admitted
facts by the second respondent, viz, that the
applicant was raised
and brought up by the deceased at her own house as a child of her
own, this is not an issue that needed the
family to decide on it. If
indeed the second respondent is the one who told the officials of the
first respondent that it was always
the deceased’s wish that
the applicant should inherit her entire estate, the consent of the
family as alluded to by the second
respondent becomes irrelevant.
[16]
On the allegation that she has never seen the original diary and that
copies thereof have been tampered, have not been certified
by a
Commissioner of Oaths as the applicant knew that the Commissioner of
Oaths would notice that the extracts have been tempered;
she does not
say where and how have the extracts been tempered with. No evidence
has been adduced to substantiate the allegations.
The applicant has
always maintained
that
the original diary was available for inspection and that it will be
made available at court. The second respondent does not
aver that she
requested to inspect the original diary and that the request was
refused. In his report supported by his affidavit,
Mr G M Cloete who
holds the title of examiner of questioned documents and handwriting,
confirms that the disputed writings as described
were written by the
same hand and that they were in all probabilities written with
exactly the same pen. This proves that the document
was never
tempered with as averred by the second respondent. No evidence has
been adduced by the second respondent to dispute the
allegations by
Mr Cloete. The averments by the second respondent are therefore
unsubstantiated and devoid of the truth.
[17]
The diary extracts have been translated by one Mr Mphahlele and this
is just a literal interpretation of the words as they
appear.
Although the second respondent tries to challenge the wording
thereof, there is no evidence that she puts forth to the
effect that
that is how she understands the wording to be. She only says that the
interpretation by the applicant is not what is
written and that there
is a possibility that there could be other pages which link up with
the extracted pages which can be read
together. The original diary
was made available in court and both the court and the second
respondent’s counsel inspected
it, no such pages were noted and
the second respondent’s counsel never raised such an issue
after inspecting the original
diary.
[18]
An issue was also raised with regard to the payment of an amount of
R10 000,00 for the lobola of the applicant. The second
respondent
contends that the amount was never paid and that the interpretation
of the wording does not make sense. According to
her the issue of
lobola of the applicant is not clear as according to customary law
that is not how things are done. When the matter
was argued it was
made clear to counsel for the second respondent that there is no
allegation by the applicant in the papers that
the amount of R10
000,00 was paid to her mother. What is mentioned is that the
applicant’s mother knows that it was the deceased’s
intention to pay lobola for the applicant so that she can remain at
her house and sustain it. Further that the applicant’s
attorneys had already drawn a Liquidation and Distribution Account
where they had included a transaction for the payment of the
amount
for her lobola to her mother. Counsel conceded to this and submitted
that he could have misunderstood the papers.
[19]
Other issues raised, I found them not to be serious. For an example
the issue that when the applicant went to stay with the
deceased she
was five years or older. The age is not an issue here. It is
irrelevant. The fact of the matter is that it is common
cause between
the parties that the applicant was raised and brought up by the
deceased at her own home. There was also an issue
relating to the
service of the papers on the respondents. The Sheriff’s returns
have been filed and the court is satisfied
that all the respondents
were properly served with the application. The other issue related to
the fact that it was not the applicant
who fetched the deceased’s
belongings at the hospital but one Selina Thobejane. This issue is
irrelevant because it is not
in dispute that the diary of the
deceased was found and the extracts were written as alleged by the
deceased.
[20]
All the issues raised by the second respondent are unsubstantiated,
irrelevant and mere denials which have the effect of either
delaying
or defeating the applicant’s application (Room Hire Co (Pty)
Ltd v Jeppe Mansions (Pty) Ltd and Soffiantini v Mould
referred to
supra). They are not genuine, material and bona fide disputes of
fact. I therefore do not find any reason why I cannot
deal with this
matter as it is on the papers before me.
[21]
I now turn to deal with the merits of this application.
[22]
Section 2(3) of the Act as amended provides:
“
If
a court is satisfied that a document or the amendment of a document
drafted or executed by a person who has died since the drafting
or
execution thereof, was intended to be his will or an amendment of his
will, the court shall order the Master to accept that
document, or
that document as amended, for the purposes of the
Administration of
Estates Act 66 of 1965
, as a will, although it does not comply with
all the formalities for the execution or amendment of wills referred
in ss (1).”
[23]
From the wording of this section the court must be satisfied that the
following requirements have been met:
23.1
There must be a document.
23.2
The document should have been drafted or executed by a person who has
died since then.
23.3
The deceased should have intended the document to be his will.
[24]
24.1
There must be a document:
In
the present matter it is not disputed that a 2006 diary belonging to
the deceased exists. The extracts in the diary are not disputed.
24.2
The document was drafted or executed by a person who has died since
then:
Evidence
on the papers establishes that the extracts have been made in the
handwriting of the deceased. It is also not in dispute
that the
deceased’s signature appears to the extracts in the diary.
In
Bekker v Naude
2003 (5) SA 173
(SCA) the following was held:
“
The
court accepts that the Legislature intended that the word ‘draft’
requires personal action of the testator, thus
applying the strict or
literal approach.”
24.3
The deceased intended the document to be his will.
In
Horn v Horn
1995 (1) SA 48
(W) and Logue v The Master
1995 (1) SA 199
(N) courts were called upon to determine whether a document which
does not comply with the prescribed formalities is in fact a
will. In
both these matters the deceased had drafted in their own hand
documents purporting to be their last wills and they had
signed them.
No witnesses were there to witness what the deceased did. Flemming
AJP in the Horn case found that if all the requirements
as provided
for in section 2(3) of the Act were present, the court has no
discretion but to recognise the documents as wills. The
same
conclusion was reached in the Logue case and Booysen J also found
that the provisions of section 2(3) are peremptory rather
than
directory. The facts in the present matter are similar to the facts
in the cases discussed here. The deceased made notes in
her 2006
diary. Those notes have been translated. There is no doubt that a
reading of the notes in the deceased’s diary explains
that she
intended the document to be her will. The deceased has also appended
her signature to the notes she made in her diary.
Nobody witnessed
the signature and the making of the notes thereof.
[25]
It is apparent from section 2(3) of the Act that the legislature
while still
providing
for formalities to ensure authenticity and to eliminate false or
forged
wills,
nevertheless intended that failure to comply with the formalities
prescribed by the Act should not frustrate or defeat the
genuine
intention of the testators. The
Wills Act, as
now amended by the Law
of Succession Amendment Act 43 of 1992, stresses the importance of
giving effect to the genuine will of
a deceased expressed in a
document (Logue and Another v The Master supra).
[26]
I am therefore satisfied that the deceased intended that the diary
extracts be her will.
[27]
The applicant’s attorneys were advised by the first respondent
that it cannot accept the diary extracts as the will of
the deceased
due to non- compliance with the
Wills Act. As
a result the applicant
launched this application. I am therefore persuaded that a proper
case has been made out for the relief
sought and that this
application must succeed.
[28]
In the premise I order the following:
28.1
That the non-compliance with certain formalities prescribed by the
Wills Act 7 of 1953
in respect of a document written by Raesetja
Damaris Mahlo is condoned.
28.2
The said document is declared to be the will of the deceased in terms
of
section 2(3)
of the said Act.
28.3
The first respondent is authorised and ordered to accept the said
document as the deceased’s will for purposes of the
Administration of the Estates Act 66 of 1965 as amended.
28.4
The second respondent is ordered to pay the costs of this
application.
----------------------------------------------------------------
MJ
TEFFO
JUDGE OF THE NORTH GAUTENG HIGH COURT,
PRETORIA
HEARD
ON: 12 MARCH 2013
FOR
THE APPLICANT: S A VISSER
INSTRUCTED
BY: STEWART MARITZ BASSON INC
C/O
KLOPPER & VORSTER ATTORNEYS
FOR
THE SECOND
RESPONDENT:
N R MKHIZE
INSTRUCTED
BY: MKHIZE ATTORNEYS