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
EASTERN CAPE DIVISION, MAKHANDA
CASE NO .: 4108/2023
In the matter between:
GRAYSON MARCELINO STEFINO JAGERS Applicant
and
IRENE MABEL PIENAAR 1st Respondent
IRENE MABEL PIENAAR 2nd Respondent
(NOMINE OFFICIO)
GRAYSON DELWYN PIENAAR 3rd Respondent
T[...] T[...] H[...] 4th Respondent
(Assisted by her mother CHAVRILL HILL)
C[...] P[...] 5th Respondent
(Assisted by his mother MICHEALA PRINCE)
D[...] T[...] 6th Respondent
(Assisted by his mother DELISHKA TAAI)
D[...] T[...] 7th Respondent
(Assisted by her mother DELISHKA TAAI)
D[...] T[...] 8th Respondent
(Assisted by her mother DELISHKA TAAI)
E[...] A[...] M[...] 9th Respondent
(Assisted by her mother ALADIA MOONIE)
M[...] E[...] 10th Respondent
(Assisted by his mother MELISSA ESTREE)
T[...] V[...] 11th Respondent
(Assisted by her mother MACHè JAGERS
T[...] M[...] 12th Respondent
(Assisted by her mother MACHè JAGERS)
M[...] J[...] 13th Respondent
(Assisted by her mother MACHè JAGERS)
G[...] J[...] 14th Respondent
(Assisted by his mother MACHè JAGERS)
G[...] J[...] 15th Respondent
(Assisted by her mother MACHè JAGERS)
RHONWYN RICARDO PIENAAR 16th Respondent
K[...] V[...] 17th Respondent
(Assisted by his mother BRITTANY VAN WYK)
TROSKLYNN BERNICE PIENAAR 18th Respondent
O[...] B[...] 19th Respondent
(Assisted by her mother BULELWA BOOI)
ROMEO OERSEN 20th Respondent
D[...] D[...] 21st Respondent
(Assisted by his mother MONNET VAN WYK)
W[...] S[...] 22nd Respondent
(Assisted by his mother ANNELIZE SMITH)
R[...] S[...] 23rd Respondent
(Assisted by her mother ANNELIZE SMITH)
CLINTON PIENAAR 24th Respondent
T[...] W[...] 25th Respondent
(Assisted by her mother FELICITY WEITZ)
C[...] S[...] 26th Respondent
(Assisted by her mother TITTYANA SAULS)
O[...] P[...] 27th Respondent
(Assisted by her father CLINTON PIENAAR)
L[...] H[...] 28th Respondent
(Assisted by her father CLINTON PIENAAR)
THE MASTER OF THE HIGH COURT, MAKHANDA 29th Respondent
___________________________________________________________________
JUDGMENT
______________________________________________________________
YOUNG AJ
Introduction
1. The applicant is the son of the late Mr Troskie Pienaar (“the deceased”) who
passed away on 22 August 2023. The applicant seeks an order that the document
signed on 27 July 2020 be declared to be the Last Will and Testament (“the Will”) of
the deceased, a nd that the Master of the High Court ( “Twenty -Ninth Respondent ”) be
directed to accept same. It is common cause that the Will does not comply with the
formalities as set out in section 2(1)(a)( ii) of the Wills Act 7 of 1953 (“the Act”). The
application is accordingly, premised on section 2(3) of the Act.
2. Irene Mabel Pienaar, the widow of the deceased is cited as the first
respondent in her personal capacity, and as the second respondent in her
representative capacity as the appointed Executrix of the de ceased estate. The
second to twenty -Eighth Respondents comprise children and grandchildren of the
deceased. As indicated, the Master of the High Court is cited as the twenty -ninth
respondent. The Master of the High Court does not oppose the application, an d
abides the decision of the court.
Back ground
3. Although the founding papers , together with fifty -six annexures thereto, ran to
some one -hundred and seventy -six pages, the facts relevant to the issues to be
determined, are largely common cause.
4. On 27 July 2020, the deceased and the first respondent signed a document
styled “Will Questionnaire”. The document (hereinafter referred to as “the Will”) was
completed in the deceased’s own handwriting.
5. Sometime during the period September to November 2020 , the deceased
handed a sealed brown envelope to the applicant. The deceased informed the
applicant that the brown envelope included his Will, which had been signed by the
first respondent. The applicant was ins tructed by the deceased to secure the Will in
his safe at his residence. The applicant was furthermore instructed by the deceased
that upon his passing, the applicant ought immediately to deliver the Will to Mr
Matthew Anthony Yazbek ("Yazbek") of Stirk Ya zbek Attorneys. The applicant
complied, and stored the Will in his safe where it remained unopened.
6. On 23 August 2023, and after the passing of the deceased, the applicant
attended at the offices of Stirk Yazbek Attorneys in order to deliver the Will as
instructed by deceased . The brown envelope containing the Will was opened by Ms
Louise Kroon ("Kroon") , a legal secretary in the employ of Stirk Yazbek Attorneys, in
the presence of the applicant and another employee of Stirk Yazbek Attorneys , Mrs
Mailing Marshall ("Marshall") . The Will was thereafter handed to Yazbek.
7. At this stage, parallel processes followed concerning the reporting of the
estate and the appointment of an Executor. Those being, the steps taken by Yazbek ,
as the nominated Executor in terms of the Will. And, those taken by Zibula Krwempe
Attorneys on behalf of the first respondent . The contention by the first respondent, at
the relevant time, was that she had been unaware of the existence of the Will. After
being furnished with a copy of the Will, the first respondent disputed that it
constituted a lawful and valid Will. Unsurprisingly, numerous items of contentious
correspondence were exchanged between the respective legal representatives.
Their content however, is irreleva nt for present purposes.
8. Ultimately and on 31 October 2023, the twenty -ninth respondent appointed
the first respondent as the Executrix of the deceased estate. The twenty -ninth
respondent , in turn, informed Stirk Yazbek Attorneys on 1 November 2023 that the
Will had indeed been registered , but that it was rejected for lack of compliance with
the provisions of section 2(1) of the Act. All of which, culminated in the launch of
these proceedings on 17 November 2023.
The application to strike out
9. On 21 February 2024, the respondents’ attorney served and filed an
application in terms of Uniform Rule 6(15), wherein it is sought that various
paragraphs in the applicant’s founding and replying affidavits, be struck out. More
specifically , and in respect of the founding affidavit, that paragraphs 43.6, 43.10,
43.11, 45, 50, 51 and 60.2 be struck out on the basis that the allegations contained
in these paragraphs are scandalous, vexatious and irrelevant. In respect of the
replying affidavit, that paragraphs 18.4 and 27.2 be struck out on the aforementioned
basis and that paragraphs 23.3 and 24.2 be struck out , as constituting new evidence.
10. The application to strike out is opposed. The applicant contends that it is
fatally defective. I am constrained to agree , insofar as it concerns the alleged
scandalous, vexatious and irrelevant matter . Uniform Rule 6(15) expressly provides
that a court may not grant an application to strike out unless it is satisfied that the
applican t will be prejudiced if the application is not granted. In this instance, no
prejudice was advanced in the answering affidavit or the application itself. The
prejudice requirement found expression in Beinash v Wixley ,1 where the court held:
“Even if any part of the averments were indeed scandalous, vexatious or
irrelevant, it does not follow that the application to strike out should succeed.
I am not persuaded that Beinash suffered any prejudice if this allegation was
not struck out. No such prejudice was relied upon in argument.”
11. The respondents’ complaint s concerning the alleged new evidence in
paragraphs 23.3 and 24.2 of the replying affidavit, are on a different footing. The
applicant alleged for the first time in paragraph 23.3 , that the first respondent had
met with Marshall and that the first respondent had informed her that she recalled
signing a document which constituted a Will. Similarly, the allegation in paragraph
24.2 to the effect that the first respondent possessed an intense dis like for the
applicant and the eighteenth respondent, constituted new evidence which ought to
have been canvassed in the applicant’s founding affidavit. No explanation has been
tendered by the applicant for these omissions. The resultant prejudice to the
respondents is obvious. The respondents could not respond thereto. It has
consistently been held that new matter ought not to be raised in replying affidavits. In
the oft -quoted dictum in Shephard v Tuckers Land and Development Corporation
(Pty) Ltd (1) ,2 the court restated this general principle :
“It is founded on the trite principle of our law of civil procedure that all the
essential averments must appear in the founding affidavits or the Courts will
1 1997 (3) SA 721 SCA at 733J to 734B .
2 1978 (1) SA 173 (W) at 177
not allow an applicant to make or supplement his case in his replying
affidavits and will order any matter therein which should have been in the
founding affidavits to be struck out.”
12. In the result, I’m of the view that paragraphs 23.3 and 24.2 of the replying
affidavit are liable to be struck out. The application to strike out accordingly succeeds
on this limited basis.
The points in limine
13. The first respondent raise d as a point in limine , the non -compliance of the Will
with the provisions of section 2(1)(a)(i ) – (iv) of the Act. Firstly , the purported point in
limine concerns the merits. It is incapable, as a stand -alone technical legal defence,
to warrant the dismissal of this application. Secondly , it is in any event no defence to
an application in terms of section 2(3) of the Act, which se eks condonation for the
non-compliance with the requirements for the execution of a Will. Ac cordingly, the
first respondent’s point in limine is without merit , and must fail .
14. The first respondent further called in aid the doctrine of ‘unclean hands ’, under
the rubric of this court’s inherent jurisdiction to prevent an abuse of its process. This
defence was said to be premised on the recalcitrant and illegal conduct of the
applicant. In th is regard, the first respondent placed reliance on the content of the
application to strike out, as a means of supporting the defence. I do not agree for the
reasons which follow.
15. The doctrine of unclean hands concerns the honesty of a party’s conduct . It
holds that that where a party seeks to advance a claim that was obtained dishonestly
or mala fide , that party should be non -suited, and precluded from persisting and
enforcing such a claim.3 It is not enough to disentitle a party to relief as a resul t of an
illegality: such an illegality must have taken the form of fraud or, at the very least,
dishonesty.4 In Maughan and Another v Zuma ,5 the court explained as follows :
3 Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property GmbH 2023 (4) BCLR 461 (CC).
4 Cambridge Plan AG and Another v Moore and Others 1987 (4) SA 821 (D) at 842F -H citing
Tullen Industries Ltd v A de Sousa Costa (Pty) Ltd and Others 1976 (4) SA 218 (T) at 221H.
5 2023 (5) SA 467 (KZP) at para 95.
“95. Our courts have also found an abuse of process to exist where a
litigant comes to court with ‘unclean hands’, and have dismissed a
litigant’s claim. Such power is sparingly exercised, as it prevents a
litigant from having their day in court, which right is constitutionally
entrenched in section 34 of the Constitution. The Constitutional
Court has endorsed the approach of dismissing a claim on the
grounds of abuse ‘because the litigant who would bring it is
disqualified from doing so by reason of their abuse’.”
16. The allegations upon which the first respondent relies for this defence, do not
begin to meet the stringent requirements for the exercise of the court’s discretion to
non-suit the applicant. In addition, t he first respondent’s various concessions point
instead, to a bona fide application. Accordingly, the firs t respondent's second point in
limine is dismissed.
The merits
17. As already addressed above, this court is enjoined in terms of section 2(3) of
the Act to direct the Master to accept the document in issue as a Will once certain
requirements are satisfied. Firstly , the document must have been drafted or
executed by a person who has subsequently died. Secondly , the document must
have been intended by the d eceased to have been his or her will.6 By ‘drafted or
executed’ is meant that the document must have been created by the deceased
personally.7 On the established facts in this case, this requirement is not in issue.
The first respondent accepts that the Will was both written and completed by the
deceased personally . It is worth mention also, that the first respondent does not
seriously challenge the veracity of the content of the Will.
18. The crisp issue for determination then, is whether the deceased intended the
document to constitute his Last Will and Testament.
6 Van Wetten v Bosch 2004 (1) SA 348 SCA at para 14.
7 Bekker v Naude en andere 2003 (5) SA 173 (SCA).
19. It is the applicant’s case that the deceased intended, through the completion
of the Will, for his children , grandchildren and the first respondent to be beneficiaries
in his estate. The applicant identified the children and grandchildren in paragraphs
43.3 to 43.11 of his founding affidavit. This, in order to explain the reference to
‘above kids’, which appears under the heading ‘Bequests’ in paragraph 5 of the Will .
This aspect is reflected as follows in the Will:
“5. Bequests
Please explain to whom your assets m ust devolve after your
passing:
(a) Member dying first
To my wife and above kids.” (own emphasis).
20. The first respondent does not dispute the named beneficiaries in paragraph 4
of the Will comprising : Grayson Delwyn Pienaar, G[...] J[...] , Rhonwyn Ricardo
Pienaar, Trosklynn Bernice Pienaa r, O[...] B[...] and the seven grandchildren who
were to be added to his ‘testament’. I will return to this aspect below.
21. The applicant further contends that the deceased intended for Yazbek, to be
appointed as the Executor. This is not disputed by the first respondent. The
nomination is reflected in paragraph 7 of the Will:
“7. Executors:
Please provide the Name, Surname and Address of a Friend or Family
member who will enforce your Will . Please think carefully, and choose
someone who is honest and reliable.
Lawyer Matthew Yazbek, 18 Vincent Road, Vincent.” (own emphasis).
22. The Will is signed on the final page, by both the deceased and the first
respondent. The first respondent confirms that to be the signature of the deceased.
She confirms also that the Will bears her signature. Although not relevant, the first
respondent i nstead contends that she was presented with a blank document to sign
and that she did not consider it to be the last Will and Testament of the deceased
when she appended her signature thereto.
23. As regards the extrinsic evidence in relation to the inten tion of the deceased,
the applicant asserts that it is not open to dispute that the deceased prepared the
document ; sealed it in an envelope ; required the applicant to keep it in safe custody,
and that the applicant delivered it to the deceased’s nominated attorney on his
passing. This conduct, the applicant argues, permits of no other logical conclusion,
save that the deceased intended it to be his Last Will and Testament. In support of
this contention, the Applicant references its content. The Will reflec ts carefully
identified multiple heirs of the deceased’s estate, and contains the identity of the
nominated Executor, attorney Yazbek. This court was referred to Horn v Horn8 and
Logue v The Master9 wherein the respective courts held that in instances where all
the elements as required by section 2(3) of the Act were met, the court has no
discretion but to recognise the document as a Will.
24. The first respondent , in turn, asserts that her oppositi on is premised on ‘legal
points and factual issues which the applicant has omitted’ and which are said to be,
‘at variance with the granting of the relief sought.’ I have already addressed the first
respondent's preliminary points, which I found to be without merit. I presume that the
'factual issues' to which the first respondent refers, relate to the anomalies and
defects apparent from the Will. The Will is certainly not a model of clarity.
24.1 The heading of the document identifies it as being a 'Will
Questionnaire". This is catenated by the following opening remark, "We only
really think and talk about death after it's too late. Well done on being
proactive and not leaving matters to chance. Soon you will have some peace
of mind knowing that you and your loved ones are protected in the
8 1995 (1) SA 48 (W)
9 1995 (1) SA 199 (N)
unfortunate event that you pass away. Please take some time and think
carefully when answering the questions below, which will help us to draft
your last will and testament." A series of questions follow thereafter .
24.2 Under the sub -heading 'Children', and after identifying the children in
the space provided, a manuscript insert reads 'NB Want to add 7
grandchildren from two of my sons that I did not add to my testament.' The
meaning of this insert is unknown . It lends itself to conflicting interpretations.
By means of example, it could be interpreted as an intention to amend the
Will which at that stage was yet to be completed. It could also be interpreted
as an amendment of the disputed Will.
24.3 A final typed note is reflected on the last page in the following terms,
'Please note: Your Pension Fund and Provident Fund does not form part of
your Will. Please contact your Insurance Broker to discuss your Beneficiary
Nominations.' This note is equa lly ambiguous. It is unclear whether this note
refers to the disputed Will, or a Will yet to be concluded on behalf of the
deceased.
25. I am mindful of these ambiguities, but the real question to be addressed is not
what the document is or means, but whether the deceased intended it to be his Will.
This enquiry entails an examination of the document itself, and also of the document
in the context of the surrounding circumstances.10
26. Leaving aside the defects apparent from the Will, the material terms of the
Will state very clearly the decisions made by the deceased. The deceased decided
that upon his passing, his assets ought to devolve to the first respondent and to their
children. And against the event that the first respondent should first pass, to his
children and grandchildren. The deceased decided also that Grayson Marcelino
Jagers be appointed as the Guardian of his minor children. And finally, that Yazbek
be appointed as the Executor of his estate. The veracity of these decisions are
unchallenged.
10 Van Wetten supra fn 6 above at para 16.
27. Turning to the surrounding circumstances, they are uncomplicated. After the
conclusion of the Will, the deceased sealed it in a brown envelope and instructed the
applicant to secure and store it in his safe. The deceased instructed t hat upon his
passing, the applicant ought immediately to deliver the envelope to attorney Yazbek.
This, the applicant did. The Will was stored in the applicant's safe where it remained
unopened until the passing of the deceased. Whereafter, the applicant d elivered the
envelope to Stirk Yazbek Attorneys. It was opened by Kroon, in the presence of
Marshall, and delivered to attorney Yazbek.
28. The unequivocal decisions made by the deceased and recorded in the Will,
considered against the surrounding circums tances which followed immediately after
its conclusion, leaves an inescapable impression that the deceased intended the
document to be his Will. The facts which confronted the Supreme Court of Appeal in
Van Wetten v Bosch supra ,11 are on all fours with th ose which confront ed this
court:
"[26] These are not the words of a person giving instructions for the
drafting of his will. They are the words of a person who has made a
decision to which immediate effect is to be given. They are his will.
The very words used by the deceased are thus also decisive of the
question before the Court: the deceased intended the document to
be his will. The surrounding circumstances, and in particular, as I
have said, the handing over of the documents in sealed envelopes t o
Van der Westhuizen, to be opened only should something happen to
him, lead to the same conclusion. "
29. Furthermore, the most probable inference arising from the conflicting
interpretations alluded to above, is one that supports the reading of the ques tionnaire
as the deceased's intended Will. I am accordingly satisfied , that the applicant has
established and met all the requirements in terms of section 2(3) of the Act, and in
the circumstances of this case, this court has no discretion but to recognise the
document as the Last Will and Testament of the deceased.
11 Id at para 26.
30. Turning to the issue of costs, no reason s have been advanced to deviate from
the general rule that costs ought to follow the result. Having said that, the opposition
to the application was not unreasonable. A fair result would entail that the costs be
paid by the estate late of the deceased.
ORDER
31. In the result, I make the following order:
31.1 The application to strike out paragraphs 23.3 and 24.2 of the replying
affidavit is granted with costs .
31.2 The First Respondent’s points in limine are dismissed.
31.3 The failure of Mr Troskie Pienaar ("the dec eased") to comply with the
formalities set out in section 2(1)( a)(i) – (iv) of the Wills Act is condoned.
31.4 The Will signed on 27 July 2020, by the deceased , (Identity Number
6[…]), which was registered with the Twenty -Ninth Respondent on 29
September 2023, is declared to be the Last Will and Testament of the
deceased .
31.5 The Twenty -Ninth Respondent is directed to accept annexure "GJ2" as
the Last Will and Testament of the deceased , for the purposes of the
Administration of Estates Act, No. 66 of 1965 .
31.6 The Twenty - Ninth Respondent is directed to remove the Second
Respondent, as the executrix to the deceased’s estate; and
31.7 The Twenty -Ninth Respondent is directed to appoint Mr Matthew
Anthony Yazbek, as the executor to the deceas ed’s estate as specified in the
Will.
31.8 The First Respondent (or her appointed Agent) is directed to deliver to
the nominated Executor of estate late Troskie Pienaar (namely Mr Matthew
Yazbek) all estate files, documents and accounts within seven days of the
date of the appointment of Mr Yazbek as Executor.
31.9 The First Respondent (or her appointed Agent) must account fully to
the Executor, Mr Yazbek, in respect of all financial and other transactions
undertaken in respect of estate the deceased, fro m the date of her
appointment to the date of handover of the estate documentation to Mr
Yazbek.
31.10 The costs of this application are to be borne by the estate of the late Mr
Troskie Pienaar, on Scale C .
D.T. YOUNG
ACTING JUDGE OF THE HIGH COURT
I agree.
A. GOVINDJEE
JUDGE OF THE HIGH COURT
Heard: 19 September 2024
Delivered: 23 January 2025
APPEARANCES:
Applicant's Counsel : ADV. COLE SC
Instructed by : WHITESIDES ATTORNEYS
53 AFRICAN STREET
MAKHANDA
TEL: 046 622 7117
Respondent's Counsel : ADV. MALUNGA
Instructed by : ZIBULA KRWEMPE ATTORNEYS
c/o KAWONDERA ATTORNEYS
1 GLANVILLE STREET
MAKHANDA
TEL: 046 307 0046