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
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable/Not Reportable
Case no: 6336/2024
In the matter between:
VUSUMSI WILBERFORCE NGWEVELA FIRST APPLICANT
MZWANDILE KNOX NGWEVELA SECOND APPLICANT
and
BULELANI MONGAMELI NGWEVELA FIRST RESPONDENT
THE MASTER OF THE HIGH COURT SECOND RESPONDENT
Neutral citation:
Coram: MPHEGO, AJ
Heard: 31 July 2025
Delivered: 22 August 2025
Summary:
1. In this application, the first and second applicants seek (by way of an
amended Notice of Motion), an order declaring that:
a) the last Will and Testament of Sipho Benjamin Ngwevela (“the
testator”), dated 27 April 2008, is invalid and/or of no force and effect;
b) the testator died intestate with the first and second applicants being
full-blood collaterals of the testator and beneficiaries of the estate of
the testator.
2. The applicants also seek an order reviewing and setting aside the decision
taken by the Assistant Master at the office of the second respondent on 27
October 2022, appointing the first respondent as executor of the estate of
the testator, and that this court make an order appointing the first applicant
as executor of the estate of the testator.
___________________________________________________________________
ORDER
___________________________________________________________________
3. This application is dismissed with costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Mphego AJ:
Introduction
[1] In this application, the first and second applicants seek (by way of an amended
Notice of Motion), an order declaring that:
a) the last Will and Testament of Sipho Benjamin Ngwevela (“the testator”),
dated 27 April 2008, is invalid and/or of no force and effect;
b) the testator died intestate with the first and second applicants being full -
blood collaterals of the testator and beneficiaries of the est ate of the
testator.
[2] The applicants also seek an order reviewing and setting aside the decision
taken by the Assistant Master at the office of the second respondent on 27
October 2022, appointing the first respondent as executor of the estate of the
testator, and that this court make an order appointing the first applicant as
executor of the estate of the testator.
[3] The first respondent seeks an order from this court dismissing the application
and upholding the validity of the Will and his appointment as executor. The first
respondent did not file heads of argument. Heads of argument were filed on
behalf of the first and second applicants.
[4] The matter was set down, with the first and second applicants being
represented by counsel and the first respondent appearing before this court
without legal representation . The second respondent (the Master of the
Western Cape High Court) filed a report confirming that their office will abide by
the decision of this court.
[5] As will be gleaned from the preceding paragraphs - at the centre of these
proceedings is the Will of the testator. The Will was executed by the testator in
the presence of two witnesses who were both above the age of 16. I deal with
the witnesses , the person who typed the Will and the heir , in succeeding
paragraphs.
Background
[6] The testator died on 23 October 2010 at the age of 77 . He was the eldest son
of Nkohliso Johnson Ngwevela and Ntombonina Isabella Ngwevela, and is the
elder brother of the first and second applicants. He is also the brother of the
mother of Geraldine Ngwevela (“Ms Ngwevela”), the first respondent’s mother.
[7] Ms Ngwevela is the heir in the estate of the testator in terms of the W ill
executed on 27 A pril 2008 . Geraldine is the niece of the testator ( Ms
Ngwevela’s mother is the sister of the testator ), and she grew up at […] M[…]
Street, Langa . The first respondent in these proceedings is the son of Ms
Ngwevela.
[8] The testator was never married and had no children. He inherited the
immovable property situated at […] M[…] Street, Langa (“the property”), from
his mother Ntombonina Isabella Ngwevela, when she passed away in 1992.
[9] On 27 April 2008, the testator executed a Will in the presence of two witnesses.
The witnesses are the first respondent and a family friend, Monde Mqingwana.
The Will was typed by Ms Ngwevela and presented to the testator and
witnesses for signing. The applicants allege that the testator was not mentally
sound at the time of signing the Will, however , the necessary documentation to
this effect has not been filed in support of that contention.
[10] The Will of the testator states that Ms Ngwevela is appointed as the executor of
the estate of the testator and that she is the sole beneficiary of the property
belonging to the testator . The circumstances around the testator’s instructions
to Ms Ngwevela to type the Will and bring it home for him to sign are not dealt
with in the application.
[11] Six years after the passing of the testator, Ms Ngwevela reported the estate of
the testator to the second respondent and was appointed as ex ecutrix of the
estate of the testator on 24 May 2016. The reporting documents to the second
respondent show that Ms Ngwevela referred to herself as the daughter and
dependant of the testator in the form(s) and/or sworn statement(s).
[12] Ms Ngwevela herself ended up passing away in February 2022 . Her son, the
first respondent , is now the executor of the estate of Ms Ngwevela and the
testator.
The applicants’ case
[13] The applicants contend that Ms Ngwevela unduly influenced the testator into
executing the Will. This court has not be en furnished with any documentation
which indicate undue influence of the testator , save for averments that the
testator was sick and not mentally sound when he signed the Will.
[14] The applicants stated that the Will was typed on a computer by Ms Ngwevela,
and that she “made herself the sole heir of the testator’s estate”. The
documents in this application do not indicate that she “made herself” an heir to
the testator’s estate.
[15] The applicants argue that the typing of the Will by Ms Ngwevela amounts to
“writes out the will or any part thereof in his own handwriting, ” under s 4A(1) of
the Wills Act 7 of 1953 (“the Wills Act”) and that Ms Ngwevela is therefore
disqualified to inherit in terms of the Will.
[16] It was submitted that th is court should note the suspicious conduct by Ms
Ngwevela in that she discussed and agreed on a letter of authorisation with the
family but presented a Will which the testator did not know that he was signing,
and that the first applicant and Monde Mqingwana did not know that they were
witnessing the signing of a Will. It is alleged that Ms Ngwevela did not disclose
after the funeral of the testator that the testator left a Will in terms of which she
stands to inherit the property , despite knowing that the intention of the
Ngwevela family is to have the house transferred to the brothers of the testat or
(the applicants).
[17] As stated above, Ms Ngwevela referred to herself as the daughter and
dependent of the testator when she reported the estate of the testator to the
second respondent.
[18] According to the applicants, Ms Ngwevela’s silence about the existence of the
Will and the delay in reporting the estate are suspicious and give rise to a n
instance where inferences can be drawn by this court around Ms Ngwevela’s
intentions before and after the passing of the testator.
[19] It was submitted on behalf of the applicant s that Ms Ngwevela’s conduct is
suspicious and that in relation t o such suspicious conduct , this court should
infer that Ms Ngwevela’s intention was to deceive the testator into leaving the
property to her . Counsel for the applicants submitted that this court should
apply the two rules found in R v Blom 1939 AD 188 namely; that the inference
sought to be drawn must be consistent with all the proven facts; and that the
proven facts should be such that they exclude every reasonable inference from
them save the one sought to be drawn.
[20] The proven facts around Ms Ngwevela’s suspicious conduct as alleged by the
applicants are that (1) she typed the Will; (2) she reported the estate six years
later, and (3) she stated in forms that she is the daughter and dependent of the
testator.
[21] The i nferences that can be drawn from this are: (1) she may have not been
aware of the re quirement to report the estate of the testator and only came
across legal a dvice in the year that she reported the estate; or (2) she could
have been aware of the requirement to report the estate but decided to do so
six years after the testator had passed.
[22] The applicants did not present any documents indicating mala fides on Ms
Ngwevela’s part in waiting six years to report the estate of the testator . In
applying common sense, i f Ms Ngwevela wanted to carry out any malicious
plan after deceiving the testator, she could have reported the estate in 2010 ,
and the transfer of the property would have taken place long before she passed
away.
[23] In relation to referring to herself as the daughter and dependent of the testator
some inferences which can be drawn include – that (1) she may have
considered the testator as the father she knew all her life given that she grew
up in the same home with him; (2) she may have wanted to misrepresent to the
second respondent that the testa tor is her uncle . It is not clear how
misrepresenting the second respondent could have assisted her because she ,
after all, stood to inherit in terms of the Will of the testator.
[24] In the circumstances, having regard to the above, I do not think that R v Blom
1939 AD 188 assists the applicants’ case.
[25] The applicants contend that , in addition to being ill, the testator did not have a
formal education and was not able to comprehend what he was signing. The
first respondent did not dispute the fact that the testator did not have a formal
education, but disputed that the testator did not comprehend what he was
signing and the implications thereof.
[26] The assertions and submissions made by the applicants around the instructions
to Ms Ngwevela to write up a letter of authority are not supported by
documentation indicating that the testator wanted to sign a letter of
authorisation as opposed to a Will.
[27] The first applicant stated in the founding papers that he did not know that he
was witnessing the signing of a Will. It was submitted that when he signed as a
witness, he did not have an education that is to a level to have understood the
legal implications o f the document he was signing on the day in question. I
pause here to point out that the Wills Act prescribes that the role of witnesses is
to attest that the testator signed the document in their presence, and that they,
as witnesses, signed such document in the testator's presence and in the
presence of each other.
[28] The applicants also challenge the validity of the appointment of the first
respondent as executor of the estate of the testator, which challenge originates
from Ms Ngwevela’s appointment as ex ecutor of the estate of the testator. The
first respondent is currently the executor of both the late Ms Ngwevela and that
of the testator. This issue is dependent on whether this court finds that the Will
of the testator is invalid or not.
[29] In the heads of argument and the founding affidavit, t he applicants raised s
54(1)(a)(v) of the Administration of Estates Act 66 of 1965, which empowers the
54(1)(a)(v) of the Administration of Estates Act 66 of 1965, which empowers the
court to remove an executor found to be incompetent to continue in such office.
The applicants submit that the first respondent is an undesirable executor due
to his conduct, lack of responsibility, and failure to protect the estate’s interests ,
based on the issue of outstanding property rates in relation to the property. The
applicants have not furnished this court with anything further regarding this
contention, save for the municipality account reflecting a historical outstanding
amount of approximately R72 000 as at 24 May 2024.
The first respondent’s case
[30] As stated in previous paragraphs, the first respondent is the son of Ms
Ngwevela. Ms Ngwevela was the nominated executor of the estate of the
testator when she was alive . She passed away , and the first respondent
became the executor of Ms Ngwevela’s estate and the estate of the testator.
[31] The first respondent has disputed that the testator’s Will was not properly
executed or that the testator signed it under misrepresentation or duress . He
stated that the testator was the legal owner of the property after inheriting it
from his mother and that he [the testator] intended that Ms Ngwevela inherit the
property through the Will.
[32] He dispute d the assertion that the property was always intended to remain a
family house to be passed among st the brothers. He contend ed that when the
property was transferred to the testator in 1992, it was done without any
conditions or restrictions , and the testator was free to dispose of it as he
wished.
[33] He further stated that the testator, although ill with a lung condition, was not
mentally incapacitated and that the first applicant, as a witness , knew that he
was witnessing the signing of a Will because the Will is clearly headed “THE
LAST WILL”. He argued that the first applicant is literate in that he possesses a
qualification in Bible Studies and is a board member of a community
organisation. The qualification of the first applicant was not disputed, but it was
disputed that the first applicant was literate , specifically on the day of
disputed that the first applicant was literate , specifically on the day of
witnessing the signing of the Will . This court has not been furnished with the
date on which the first applicant obtained his qualification in Bible Studies.
[34] The first respondent has denied that the exclusion in s 4A(1) of the Wills Act
applies to Ms Ngwevela because she did not write the Will in her own
handwriting but rather she typed the Will of the testator . The re are no
documents before this court indicating that the intentions of the testator are not
those recorded in the typed Will.
[35] The first respondent stated in his opposing affidavit that the applicants’
contention that the persons involved intended to sign a letter of authorit y,
authorising Ms Ngwevela to administer the property , is unfounded and
contradicted by the document’s content and form.
[36] He asserted in his opposing affidavit that the applicants lack locus standi as
they are not beneficiaries under the Will and have no legal right to challenge his
appointment as the executor or the validity of the Will. He further asserted that
the court may only remove an executor if it is proven that the executor is
undesirable or has failed in his duties, which he denies is the case here.
[37] Lastly, according to his opposing affidavit, he seeks the dismissal of th is
application with costs on a punitive scale, because the a pplicants’ case is
defective, lacks merit, and is motivated by personal interest.
Evaluation
[38] In order for the applicants to be granted an order declaring the Will invalid, this
court must be satisfied that the formalities required in the execution of a Will in
s 2(1)(i) to (iv) of the Wills Act were not complied with.
[39] A copy of the Will a t page 37 of the record is signed by the testator and two
witnesses. It is not in dispute that the Will was signed by the three parties in the
presence of each other. Evidence indicating non-compliance with s 2(1)(i) to (iv)
has not been presented in these proceedings. I reproduce the provisions of this
section for convenience:
‘2. Formalities required in the execution of a will.
(1) Subject to the provisions of section 3bis—
(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 perso n, 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; and
(iv) if the will consists of more than one page, each page
other than the page on which it ends, is also signed by
the testator or by such other person anywhere on the
page; and …’
[40] The second inquiry relates to the competency of the testator to make a Will
under s 4 of the Wills Act . The testator was 75 when he executed the Will, and
it was not disputed that he was ill with a lung condition . The applicants have
argued that the testator was not of sound mind but did not take this contention
further despite the fact that the burden of proof that the testator was mentally
incapable at the time rested with them. The first respondent argued that the
testator was of sound mind.
[41] In terms of the Plascon -Evans rule1, the applicants bear the onus of proof on a
balance of probabilities for the relief they seek from this court. This court is not
satisfied that the applicants have discharged the onus of proof under s 4 of the
1 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
Wills Act. The undue influence argument was also not taken further in the
papers and in argument, save to state that none of the parties knew that they
were signing a Will on 27 April 2008. To this end, in applying the Plascon-Evans
rule, the applicants have not discharged the onus which they bear , therefore
this court cannot grant the relief sought.
[42] Given that this court cannot find non-compliance with s 4, the result is that the
Will dated 27 April 2008 is valid and the estate of the testator does not fall to be
administered in terms of the intestate succession regime.
[43] The third inquiry relates to the competency of Ms Ngwevela to inherit in terms
of the Will she was involved in typing from a computer . The applicants argue
that Ms Ngwevela typing the Will amounts to ‘writes out the will or any part
thereof in his own handwriting ’ in s 4A(1) of the Wills Act , which should
disqualify her from receiving any benefit under the Will . The first respondent
submitted that the Will was typed, not handwritten by Ms Ngwevela and
therefore does not fall within the ambit of s 4A(1 ) of the Wills Act . The court
decisions support the first respondent’s submission on this issue.
[44] In the case of Blom and another v Brown and others [2011] 3 All SA 223 (SCA)
it was held that the disqualification under s 4A(1) of the Wills Act applies to
those who write out the Will in their own handwriting. The court did not extend
this disqualification to those who type the W ill, thereby reinforcing the
distinction between handwritten and typed documents.
[45] In M-S and Another v Le Mottee and Other s [2021] ZAGPPHC 620 , the court
stated that:
‘On a mere interpretation of section 4A of the Wills Act, it appears that the
disqualification only relates to wills written in one’s own handwriting which will
amount to a disqualification in terms of section 4A of the Wills Act.’
[46] In the circumstances, this court cannot find that Ms Ngwevela is disqualified in
[46] In the circumstances, this court cannot find that Ms Ngwevela is disqualified in
terms of s 4A(1) of the Wills Act.
[47] The second respondent appointed the first respondent as the executor of the
estate of the testator by virtue of being the executor of Ms Ngwevela’s estate,
who was the sole executor and heir in the estate of the testator. Without an
order declaring the Will of the testator invalid and disqualifying Ms Ngwevela
from benefiting from the Will of the testator, it seems to me that this position
would remain.
[48] In relation to Ms Ngwevela referring to herself as the daughter and dependant
of the testator in the form(s) and/or sworn statement(s) submitted to the second
respondent, this court is not tasked with making a determination in relation to
those forms and/or sworn statements.
[49] There is no reason why this court should grant the order sought by the
applicants, namely , “reviewing and setting aside the decision taken by the
Assistant Master in the office of the second respondent on 27 October 2022,
appointing the first respondent as executor of the estate of the testator, and to
appoint the first applicant in his stead.”.
[50] The applicants have failed to make out a case for the relief sought in the
amended Notice of Motion.
[51] The application must fail and there is no reason why costs should not follow the
result.
Order
This application is dismissed with costs.
_____________________________
TR MPHEGO
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the applicants : Adv. C Simon
Instructed by : Le Grange Attorneys
K. Le Grange
For the respondents : Mr. B.M. Ngwevela (in person)