OFFICE OF THE CHIEF JUSTICE
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Cases NO: 11450/2020
& 13401/2020
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES: NO
In the matter between:
BURGERT ANDRIES VISSER N.O PLAINTIFF
and
DANIEL CHRISTIAAN VISSER N.O FIRST DEFENDANT
JAKOBUS BERNARDUS VISSER N.O SECOND DEFENDANT
CHRISTINA WIEHELMA LAING N.O THIRD DEFENDANT
[Acting in their capacity as trustees
For the time being of the DC Visser Familie
Trust (IT 4540/20180]
and
FIRST RAND BANK LIMITED FOURTH DEFENDANT
Coram: Kholong, AJ
Date of hearing: 23 September 2025
Date of judgment: 8 October 2025
Summary: Evidence - Direct evidence of a single witness can be accepted provided
it is credible. Such evidence if credible can be accepted even though it may conflict
with probabilities set in expert opinion.
ORDER
1. The will and testament which was purportedly executed by the late Daniel
Christiaan Visser (Senior) on 11 December 2017 at Robertson does not contain the
testator’s signature and is thus null and void.
2. The will and testament that was executed by the testator on 29 September
2011 at Worcester is his will and testament for purposes of liquidating and
distributing his estate.
3. The plaintiff’s action under case number 11450/2020 is dismissed.
4. The plaintiff in case no 11450/2020 to pay costs on scale A.
5. The first defendant in case no 13401/2020 to pay costs on scale A.
JUDGMENT
KHOLONG AJ
Introduction
[1] This court has been called upon to determine two actions which are heard
together stemming from an alleged failure by defendants to heed a demand from the
executor of a deceased estate to pay an outstanding debt following on a sale of a
farm previously belonging to the deceased. The relief sought by the parties in the
two actions is ultimately determined by a determination by this court on the validity or
otherwise of the will and testament bearing the name of the late Mr. Daniel
Christiaan Visser (“the testator”) dated 11 December 2017 and signed at Robertson.
The determination required of this court is whether this will contain the te stator’s
signature.
[2] The Plaintiff in the first matter per case no 11450/2020 is Mr. Burgert Andries
Visser an adult male businessman situated in Bonnievale who instituted action
against the trustees of the DC Visser Familie Trust (“the trust”) and Fir st Rand Bank
Limited (“FirstRand”). Mr. Andries Visser instituted action in his capacity as the
executor in the estate of his late father the deceased.
[3] First, second and third defendants are plaintiff’s family members. First
defendant is D.C Visser an adult male businessman and brother of plaintiff staying
on a farm in Worcester. Jakobus Visser is an adult male also situated on the farm
Kloppersbosch, Worcester. Christian Laing is an adult female residing in Brackenfell.
They are cited as defendants in their capacity as trustees of the DC Visser Familie
Trust.
[4] The Fourth defendant is FirstRand Bank Ltd a bank situated in Cape Town
and joined suppo sedly as a bondholder over the properties forming part of the farm
Kloppersbos.
[5] In the second matter under case number 13401/2020 first plaintiff is Mr. DC
Visser Junior and second plaintiff is Chrsitina Wiehelma Visser an adult female
residing in Br ackenfell. Third plaintiff is DC Visser Junior of Worcester cited in his
official capacity as trustee in the DC Visser Familie Trust. The Fourth and fifth
Plaintiffs are Christina Visser of Worcester and Jakobus Visser of Worcester cited in
their capacity as trustees.
[6] The first and second defendant in this second matter is Burgert Visser, who is
plaintiff in the first matter cited above and is cited in his personal and official capacity
as executor of the deceased’s estate. The third defendant is Chris tina Visser an
adult female then residing at a retirement village in Worcester. The fourth defendant
is Izak Visser an adult male residing in Brackenfell. The fifth defendant is the Master
of the High Court.
Background
[7] Mr. Burgert Visser (“plaintiff” ) instituted action against trustees of the DC
Visser Familie trust and FirstRand Bank Ltd. He did so in his capacity as an executor
in his father’s deceased estate. The trustees (defendants) of the trust are Mr. Burgert
Visser’s family members in various capacities.
[8] In the first action plaintiff sought an order confirming cancellation of the sale
agreement and an order of restitution of everything the deceased received in terms
of the sale agreement back to the DC Visser Familie Trust less amounts wh ich may
have been due to Firstrand Bank in terms of the bond registered over the property
Kloppersbos and Naudes Berg.
[9] Plaintiff pleaded that the deceased concluded an agreement with the trust
signed in 2008 and amended in 2009 selling the farming bus iness to the trust for R8
372 000. Plaintiff pointed out that the testator passed away on 7 October 2019 and
the balance of the purchase price became payable on 8 February 2020. They had
sent a letter on 14 February 2020 demanding payment of the outstandin g amount in
terms of clause 6 of the sale agreement. The trust failed to pay as demanded and
plaintiff elected to cancel the agreement and notified defendants accordingly.
[10] Plaintiff seeks an order confirming cancellation of the agreement. He also
seeks an order of restitution of everything the deceased received in terms of the
agreement to the trust less amounts owing to FirstRand in terms of the bond
registered over the farm.
[11] D.C Visser and Christina Visser together with the DC Visser Familie Trust in
turn instituted proceedings against Burgert Visser the plaintiff in the first matter in his
personal and representative capacity and to Christina Visser NO ; Izak Visser NO
and the Master of the High Court.
[12] In this action the plaintiffs disp uted the will presented in 2019 to the master
subsequent to the death of the testator claiming that it does not contain the signature
subsequent to the death of the testator claiming that it does not contain the signature
of the testator. They seek an order declaring that the will and testament executed by
the testator on 11 December 2017 at Robertson does not contain the testator’s
signature and that it is null and void. They also seek a declarator that the will and
testament executed on 29 September 2011 at Worcester is his valid will and
testament for purposes of liquidating and distributing his estate.
[13] The parties have agreed that if the order in the second action is granted, the
relief sought in the first action become incompetent. It was agreed that the
defendants in the first action and plaintiffs in the second action have the duty to
begin the leading of evidence on the validity of the will. For convenience the parties
will be addressed as plaintiffs and as defendants based on the first action instituted.
Defendant’s evidence
[14] Defendants first led the evidence of Ms. Palm as an expert witness. She is a
forensic document examiner who amongst others received her training from 1996
with the South African Police Service forensic science laboratory. Ms. Palm testified
about the process which is followed to determine whether a sign ature is authentic in
terms of belonging to the author or not. She explained that a signature is created by
way of individualization and habituation. She testified that a signature included
natural variations which are unique to each author. That the range of these natural
variations is also unique.
[15] She explained the process of evaluating a signature. That this in the first
phase involves an assessment of the known signatures of an author to determine if
they are of one group. She testified that of the 21 specimens provided to her which in
the exhibits were s1 to s21. That s1 stood out in the sense that it did not conform
with the rest of the signatures. This specimen was excluded by her when she
proceeded to the next step of the assessment phase.
[16] She testified that an assessment phase involves an analysis of the manner in
which the deceased’s known signatures were constructed having regard to the
which the deceased’s known signatures were constructed having regard to the
movement of the hand in order to identify the distinguishing features of the author’s
signature. D uring the second phase of the enquiry, the comparison phase, the
questioned signature is compared to the known signature of the author to identify the
features of the signatures which are similar and those which are dissimilar. The third
phase involves eva luating the similar and dissimilar features to determine whether
they amount to fundamental differences as opposed to natural variations. That the
existence of fundamental differences is indicative of different authors. She explained
that for these exercis es she used a digital microscope and stereo microscope and
took photographs of the signatures with high resolution digital camera.
[17] Ms. Palm testified that this exercise revealed six distinguishing features of the
deceased’s signature. The first is t hat the letter D starts at the top with a hooked
formation from the left upwards, or a clockwise looped formation to complete the
letter D. She explained these distinguishing features to the sixth distinguishing
feature. Of significance is that the signatu re always starts at the top. She testifies
that the questioned signature on the contested will fundamentally differs from the
specimens containing the deceased’s known signature. The fundamental difference
being that the letter “D” on the questioned signature starts at the bottom. The second
difference is that the left stroke of the “v” is constructed with a bow shaped formation
bulging to the right. That the right side of the v extends upwards to the right and
terminates higher in relation to the left side of the ‘v’. The fundamental difference is
that the second v on the questioned signature connects horizontally and does not
extend upwards.
[18] The fourth fundamental difference is that a forward slanting straight stroke is
inserted on the questioned sig nature separately from any other movement. The fifth
distinguishing feature is the diacritic. That on the questioned signature instead of
being a dash formation or angular hooked formation, the fifth difference is that the
construction of the diacritic has a slowly drawn appearance. The sixth difference is
construction of the diacritic has a slowly drawn appearance. The sixth difference is
that the flourish crosses through the body of the signature and not underneath the
signature as on other specimen. Her conclusions were that the signature is not the
authentic signature of the signatory.
[19] The defendant also led the evidence of Mr. DC Visser. He testified that
approximately since 1988 having finished matric he moved to the farm to stay and
help his father. He stayed on the farm with his father together with his wife and
children. This until his father passed away. He testified that upon enquiry to his
father as to what would happen when his father passed away his father had told him
he would inherit or take over the farm. It was against that backdrop that a process
unfolded to set up a family trust to which his father sold the farm. He testified that it
was his father who drove the process of structuring his estate and who
communicated with accountants on a regular basis on business and financial matters.
[20] In argument, Counsel for d efendant argued that this arrangement made by
the testator was an estate planning scheme commonly used in the farming
community in that belt of the country to avoid estate duty.
[21] Counsel for the defendant argues that although credible evidence of a witness
that was present at the signing of a will would usually trump the evidence of an
expert, the position is different where the evidence of the expert stands
uncontroverted, and where only one witness is called to testify about the disputed
signature o f the testator. Counsel argued that in Grill v Stoffels and Others 1 the
evidence of an expert, Ms. Palm, held sway over defendant’s single witness, and the
court held in favor of the evidence of the expert.
[22] In respect of plaintiff’s only witness coun sel pointed out that Mr. Mostert was
not one of the two witnesses who appended their signature but had been designated
by plaintiff to be the only witness at the trial. He argued that where a party relies on a
single witness, the court must be satisfied th at such evidence is clear, credible and
satisfactory in every material respect. That Mr. Mostert’s testimony cannot be
described as such.
[23] He points out that Mr. Mostert himself testified that he was at the meeting
where the testator and Mr. DC Visser junior attended to discuss the possibility of a
loan with his other son the plaintiff and where he says he was given a directive to
prepare the will for testator after that meeting. He made it clear that he was not there
prepare the will for testator after that meeting. He made it clear that he was not there
looking after the interests of Mr. DC Visser or his trust. He states that Mr. Mostert
had no personal or telephonic contact at all with the deceased for months prior to
signing the contested will from 18 September to 11 December 2017. That during this
1 (7487/2007) [2011] ZAWCHC 119 (26 January 2011).
period his only contact was with Mr. A. Visser. He argues that Mr. Mostert drafted the
will without ascertaining the deceased’s true wishes. After that he went with that will
to the farm to get the deceased to sign it. Counsel argues that Mr. Mostert was very
evasive and defensive during cross examination.
[24] He points out that even though he had said he has no financial interest in the
matter, under cross examination it emerged that he was the agent of the executor to
be paid when plaintiff’s action was successful. That this points to his te stimony being
untruthful. He argues that his role in preparing the will coupled with his role as
plaintiff’s agent for the administration of the deceased’s estate proves that his
personal interests are at stake. He further points out that his testimony abo ut the
deceased’s concerns about his wife’s well being given the state of the trust after he
passed on was contradicted by his earlier statement that he didn’t confer with
anyone before drafting the will and that its contents was his idea.
[25] Counsel argues that his testimony that he realized after Andre Mostert’s wife
had signed the will at the farm as a witness together with Mr. Marco, that that would
pose a problem is not credible. That according to him a second will was then printed
by Andre Visser’s wife on her home computer. That he could not give a coherent
answer under cross examination how the disputed will found its way to plaintiff’s
wife’s computer. He points out that Mr. Mostert could not remember whether he took
a memory stick with him, whet her he emailed it through to plaintiff’s wife earlier or
emailed it there and then. That this apparent failure is also implausible. He points out
that his claim that his version of having checked the file manager two weeks before
testimony showing the will having been printed at 15h31 as implausible and
misleading as it became clear under cross examination that the file manager he
misleading as it became clear under cross examination that the file manager he
referred to was the file timestamps which do not record when a document was
printed. That this was misleading and calculated at creating the impression that the
second will was printed and signed in his presence when this is not substantiated by
computer records.
[26] He points out that the disputed will was not held by Mr. Mostert for
safekeeping and he never kept a copy on his c omputer server or records. But for
reasons unexplained the initial will with the error he had identified was not destroyed
nor discarded when the corrected will was signed. On the contrary the initial will was
saved on his computer and the disputed will wa s not found in his records or his
computer at all. That this testimony presents too many gaps and contradictions to be
regarded as a version that is plausible. He questions why the witnesses who
appended the signature were never called as this was the purp ose why they signed
as witnesses in the first place. Further that plaintiff himself chose not to testify. That
despite giving instruction to put his version to defendant during cross examination he
chose not to testify for purposes of affirming his instruc tions to rebut Mr. DC Visser’s
version.
[27] He points out that there is no dispute about the authenticity or validity of
deceased’s three earlier wills. He points out that should second action succeed, the
will of the 29 September 2011 should be declared to be the deceased’s valid will and
testament.
[28] He points out that in the event they failed in the second action, the order
which plaintiff is seeking in prayers (a), (b) and (c) of the particulars of claim do not
include an order that the farm be tr ansferred to the deceased estate. They point out
that transfer of the farm into the trust’s name in the deeds office more than 16 years
before renders restitution of the farm incompetent. This because there was physical
transfer and millions of rands have since been spent to improve the farm. That it is
impossible to return it in its original form to the deceased estate 16 years later. That
a mortgage bond had been registered over the immovable property initially in favor
of FirstRand who is a party and lat er in favor of ABSA Bank Ltd who haven’t been
joined as a party in the first action. That the obvious relief available in those
circumstances would have been to sue for the balance of the purchase price which
plaintiff didn’t do.
Plaintiff’s evidence
[29] Plaintiff led the evidence of a single witness, Mr. T. Mostert who is an
[29] Plaintiff led the evidence of a single witness, Mr. T. Mostert who is an
accountant. He testified that there was a meeting held between trustees of the DC
Visser Trust which included defendant Mr. DC Visser and the deceased. He
explained that the trust h ad financial problems and had ceased payment of the life
insurance policy over the deceased’s life. At the conclusion of the meeting the
deceased spoke to him concerning his will. He on 11 December 2017 attended a
meeting at the plaintiff’s farm where the deceased was present.
[30] Mr. Mostert testified that at this meeting he presented the deceased with a will
he had prepared and brought for the deceased. That the will was signed in his
presence. He testified that he feared that the validity of the will would be
compromised as plaintiff’s wife co -signed the will as a witness. He testified that he
asked for another copy of the will to be signed but this time Mr. Andries Visser’s wife
was not one of the signatories.
[31] In argument, Counsel for the plaintiff submitted that once the court has
decided on the validity of the will the plaintiff’s remedies are specific performance
and if it is not possible the plaintiff acquires a claim of damages against the trust to
the tune of R2 336 662 as reflected in the financials of 28 February 2019.
[32] Counsel argues that it falls on the defendant to prove that the will was invalid.
He points out that the two witnesses of the defense Ms. Palm and DC Visser were
not present when the disputed will was signed. He points out that Mr. Mostert’ s
evidence was cogent and direct that the deceased read and understood the will and
signed it in the presence of others and signed it. He argues that defendant’s case
relied on indirect opinion and expert evidence when the plaintiff relies on direct
evidence.
[33] Counsel proceeds to argue that Ms. Palm was not an objective, unbiased
expert as she constantly advocated the cause of the litigant who called her, the
defendant. He argues that Ms. Palm focused exclusively on what she believed to be
inconsistencies in the disputed signature and refused to mention any corresponding
features. That after testifying that one exception was sufficient, she was confronted
with the view of authorities she relied on which points out that one inconsistency is
with the view of authorities she relied on which points out that one inconsistency is
not sufficien t. That when caught out she came with long winded and irrelevant
explanation instead of admitting she was wrong. He points out that the fact that Ms.
Palm concludes her report by stating that the evidence is conclusive that the
signature Q1 is not an authe ntic signature of the signatory removes any credibility
she may have as no expert opinion can be equated to a fact.
[34] Counsel for plaintiff argues that Mr. Mostert’s testimony is supported by the
fact that he is not a beneficiary under the will. He is an independent person who
assists the executor with administration of the deceased’s estate. The existence of
two wills is also a consideration; his firm’s bas statements of account; the screenshot
which he argues supports Mostert’s evidence that on 11 Dec ember the will was
reprinted after it was earlier attested by plaintiff’s wife. He argues that it was never
put to Mr. Mostert that his evidence was wrong and that of Ms. Palm was right. Nor
that the deceased didn’t sign. What was put to him was that the w ill was signed
when he had left the farm.
[35] In respect of the cancellation of the sale agreement and restitution under case
number 11450/2020 counsel submits that the evidence is that plaintiff issued letter of
demand and the trust did not comply with the demand. That the executor is thus
entitled to cancel the agreement. That therefore if the disputed will is valid it follows
that plaintiff was lawfully appointed and the defense that executor didn’t have the
right to cancel the agreement falls away. That the agreement was validly cancelled.
[36] In this regard Counsel submits that the deed of sale was on 10 February 2009.
The purchase price was R8 372 000 of which R3 293 100 was paid by taking over
the existing bonds and the balance of 5 078 900 secure d by a bond in favor of
deceased. That this amount was bequeathed by deceased to the DC Visser Trust in
terms of the previous wills. That per financial statements in the following years up to
2019 when debt was split between deceased and his wife reflecting a debt of R2 336
662 as due to the deceased. This is also the year the deceased died on 7 October
2019. He points out that DC Visser claimed not to remember whether this amount
2019. He points out that DC Visser claimed not to remember whether this amount
was paid and ducked and dived which makes him an unreliable witness. That
therefore this amount remains due.
[37] Counsel points out that the evidence of the trust is such that it points out that
restitution is no longer possible as the farms were extensively developed. Bonds to a
total value of between R9 to R15 million have been registered on the property per
deeds office records totaling R24 Million. The value of the farm has increased
significantly. That therefore damages seem to be an appropriate remedy. He argues
that the plaintiff’s claim is for specific performance. That if the court should find that
restitution is no longer possible that is not end of the road for plaintiff. His claim for
damages arises once such finding is made. He argues that it is permissible for this
court to make an order that damages be paid by the tr ust as set out in the financials
of 2018.
[38] He submits that in those circumstances the plaintiff would be left with choices
whether to ask for an order for damages as alternative relief; amend its particulars of
claim to claim such damages or institute a separate action for damages in lieu of
specific performance.
The Law
[39] In S v Sauls 2 Diemont JA noted that a court may on the facts of that case
convict on the evidence of a single witness, provided that such evidence is credible.
The court noted i n this matter that there is no rule of thumb test or formula to apply
when it comes to consideration of the credibility of a single witness. It stated that the
trial judge will weigh his evidence, will consider its merits and, having done so, will
decide w hether it is trustworthy and whether, despite the fact that there are
shortcomings or defects or contradictions in the testimony, he is satisfied that the
truth has been told. It was also found in Motor Vehicle Assurance Fund v Kenny 3
in a case involving c ollision that direct credible evidence can be accepted even
though such evidence may conflict with probabilities set in expert opinion evidence.
This court finds these judgements instructive.
[40] Watermeyer C.J noted in Elgin Finedays Ltd v Webb 4 that it is true that if a
party fails to place the evidence of a witness, who is available and able to elucidate
the facts, before the trial court, this failure leads naturally to the inference that he
the facts, before the trial court, this failure leads naturally to the inference that he
fears that such evidence will expose facts unfavorable to him . The court noted that
2 1981 (3) SA at 180.
3 1984 (4) SA 432 (EC).
4 1947 (4) 744 (AD) at 749.
the inference is only proper if the evidence is available and if it would elucidate the
facts.
[41] This court noted that whilst versions and propositions were put to Ms. Palm
that Mr. Bester the expert would come testify to rebut t he testimony of Ms. Palm and
proceedings of this court on several occasions had to be delayed and adjourned to
allow consultation with this expert witness, this expert witness never came to testify.
This court concurs therefore with the argument by Counsel for the defendant that a
negative inference must be drawn in the light of plaintiff’s failure to call the expert
witness or provide some cogent explanation for his failure to testify especially given
the impact this witness has had on this trial. This cou rt agrees with Counsel for
defendant that he was clearly available and had been present in court and consulted
often to check propositions made by Ms. Palm during cross examination a number of
times. When the time came for him to confirm his version, the p laintiff did not present
him. It is this court’s view therefore that the evidence of the expert Ms. Palm is the
only expert opinion it has on the record and it remains unchallenged.
[42] It is this court’s view that Ms. Palm presented a well -reasoned expert opinion
and the basis of her findings. This court is satisfied that the 6 distinguishable
features in the contested signature as presented by Ms. Palm are plausible and
reasonable. This court on balance accepts the testimony of the expert Ms. Palm.
[43] Equally, this court finds the evidence of the plaintiff’s only witness Mr. Mostert
unsatisfactory. This court concurs with Counsel for plaintiff and finds that he could
not give a coherent answer under cross examination on how the disputed will found
its way to plaintiff’s wife’s computer. His explanation that he could not remember
looks implausible. It is unlikely that a person will travel kilometers to a farm with the
looks implausible. It is unlikely that a person will travel kilometers to a farm with the
sole purpose of meeting to secure finalization and signature of a will he drafted. At
the meeting he discovers gaps or errors on that document he had drafted, causes
changes to be made but conveniently doesn’t remember how that replacement
document or draft was organized.
[44] This court also concurs with Counsel for the defendant that Mr. Mostert’s
claim that his version of having checked the file manager two weeks before
testimony showing that the will had been printed at 15h31 as implausible and
misleading as it became clear under cross examination that the file manager he
referred t o was the file timestamps which do not record when a document was
printed but modified. This is misleading and calculated at creating the impression
that the second will was printed and signed in his presence when this is not
substantiated by computer records.
[45] This court concurs that it is also striking that the disputed will was not held by
Mr. Mostert for safekeeping and he never kept a copy thereof on his computer server
or records. That for reasons unexplained the initial will with the error he ha d
identified was not destroyed nor discarded when the corrected will was signed. On
the contrary this initial will was saved on his computer and the disputed will was not
found in his records or his computer at all. This court concurs that this testimony
presents too many gaps and contradictions to be regarded as a version that is
plausible. It is this court’s view that on balance the expert opinion being clear and
credible must be accepted that the disputed signature was not the signature of the
testator.
Conclusion
[46] This Court thus concludes that the signature on the contested will is not the
authentic signature of the testator and deceased, Mr. DC Visser senior. The will
bearing this disputed signature is thus null and void.
Costs
[47] Plaintiff a nd defendant made submissions on costs. Costs must follow the
results including costs of Counsel where so employed on scale A.
Order
Accordingly, I would make the following order:
[48] The will and testament which was purportedly executed by the late D aniel
Christiaan Visser (Senior) on 11 December 2017 at Robertson does not contain the
testator’s signature and is thus null and void.
[49] The will and testament that was executed by the testator on 29 September
2011 at Worcester is his will and testamen t for purposes of liquidating and
distributing his estate.
[50] The plaintiff’s action under case number 11450/2020 is dismissed.
[51] The plaintiff in case no 11450/2020 to pay costs on scale A.
[52] The first defendant in case no 13401/2020 to pay costs on scale A.
__________________________
KHOLONG, AJ
Appearances:
For the Plaintiff: Adv. A. De Villiers
Instructed by: VGV Attorneys
For the
First Defendant: Adv R.B. Engela
Instructed by: Morne Binedell Attorneys