Summary of Judgment

1. Introduction

This judgment concerned an application for leave to appeal brought in the High Court of South Africa, Northern Cape Division, Kimberley, before Lever J. The application sought leave to appeal an earlier judgment and order delivered by the same court on 1 August 2025.

The applicant for leave to appeal was Mr Gaolatlhwe David Mmelesi, who had been the only opposing party in the proceedings a quo. The respondents were members of the deceased’s family (who had supported the relief granted in the court a quo), together with institutional parties cited in the underlying proceedings, including the Master of the High Court, Kimberley, and an independent financial broker entity involved in storing the relevant document electronically (as described in the judgment).

The procedural history was that, in the court a quo, an application was brought in terms of section 2(3) of the Wills Act 7 of 1953 to have a document referred to as the “2021 will” recognised as the will of the deceased, Jennifer Yvonne Mokgoro, despite non-compliance with statutory formalities and the absence of an original physically signed version. On 1 August 2025, Lever J ordered the Master to accept the 2021 will for purposes of administering the estate under the Administration of Estates Act 66 of 1965. The present judgment determined whether leave should be granted to appeal that order.

The general subject-matter of the dispute was the valid recognition of a will executed by electronic signature and stored electronically, and whether the Electronic Communications and Transactions Act 25 of 2002 (ECTA) affected the operation of the court’s power under section 2(3) of the Wills Act to condone non-compliance with testamentary formalities.

2. Material Facts

It was common cause that the signatures on the 2021 will were appended electronically. It was also common cause that a copy of the will was recovered from an independent financial broker (identified as the third respondent in the court a quo), who had stored the document electronically.

The application in the court a quo was brought by the person described as the first applicant in that court, acting both in the capacity as the duly appointed executor of the deceased’s estate and as one of the deceased’s sons (described as the second applicant in the court a quo). The application was supported by additional family members of the deceased, described as the third to sixth applicants in the court a quo. Those family members were the parties who opposed the present application for leave to appeal.

Mr Mmelesi was the deceased’s life partner and was the only person who opposed the section 2(3) application in the court a quo.

It was also common cause that the significant substantive difference between the 2014 will (which complied with testamentary formalities) and the contested 2021 will concerned the disposition of the deceased’s share in fixed property situated in Magersfontein. Under the 2014 will, the deceased’s share in that property was left to Mr Mmelesi, whereas under the 2021 will the deceased’s share was left to her children and granddaughter (being, effectively, the first to sixth applicants in the court a quo).

A further fact treated as decisive by the court was that it was not disputed by Mr Mmelesi that the deceased intended the 2021 document to be her last will and testament. The judgment recorded that Mr Mmelesi’s counsel had expressly conceded this in the court a quo. On that basis, the deceased’s intention in relation to the 2021 will was treated as properly established.

3. Legal Issues

The central legal questions concerned whether the applicant for leave to appeal had met the threshold requirements under section 17(1) of the Superior Courts Act 10 of 2013 to justify leave to appeal, either because the appeal would have reasonable prospects of success or because there existed some other compelling reason why the appeal should be heard.

Within that framework, the dispute turned on whether there were reasonable prospects that an appellate court would reach a different conclusion on the legal interaction between section 2(3) of the Wills Act 7 of 1953 and sections 4(3) and 4(4) of ECTA, read with the relevant schedules to ECTA. In the court a quo, the issue had been framed as whether ECTA excluded (expressly or by necessary implication) the application of section 2(3) of the Wills Act to an electronically signed will stored electronically.

In addition, a subsidiary issue emerged in the leave application concerning an argument advanced for the applicant that, for section 2(3) of the Wills Act to operate, the applicant in the court a quo had to show that the “shortcoming” in the will was one contemplated in section 2(1) of the Wills Act, and that (so it was argued) ECTA prevented that from being established.

The dispute was predominantly a question of law, namely statutory interpretation and the legal consequences of established or conceded jurisdictional facts. To the extent that factual questions could have arisen, the judgment treated the relevant jurisdictional facts as conceded, uncontested, or otherwise established, and therefore not controversial for purposes of the leave enquiry.

4. Court’s Reasoning

The court approached the matter by emphasising that the earlier order of 1 August 2025 had been made after finding that the requirements for section 2(3) relief were met, and after concluding that the relevant provisions of ECTA did not exclude the application of section 2(3) of the Wills Act. The present judgment did not revisit the entire merits analysis; instead, it assessed whether the applicant had met the statutory threshold for leave to appeal.

The court applied the current statutory test for leave to appeal in section 17(1) of the Superior Courts Act 10 of 2013. It noted that the provision is framed in terms suggesting a more stringent threshold than pre-existing formulations, and it referred to authority indicating that the enquiry is not whether another court might come to a different conclusion, but whether there is a sufficient basis to conclude that it would do so. The court further referred to the approach articulated in Ramakatsa and Others v African National Congress and Another (Case No: 724/2019) (2021) ZASCA 31 (31 March 2021), where the test was stated as requiring a dispassionate assessment showing that a court of appeal could reasonably reach a different conclusion, with prospects that are not remote and supported by a sound rational basis.

As to the substance of the proposed appeal, the court recorded that, save for the abandonment during oral argument of grounds based on section 4(4) of ECTA, the arguments advanced on behalf of Mr Mmelesi were essentially the same as those presented in the court a quo. The court considered that it had already dealt with those submissions comprehensively and succinctly in the earlier judgment and found no purpose in repeating them in the leave decision.

The court nevertheless addressed two aspects requiring particular attention. First, it considered counsel’s submission that section 2(3) of the Wills Act could only be applied if the deficiency in the will was a shortcoming contemplated by section 2(1) of the Wills Act, and that ECTA (through section 4(3) read with a schedule) prevented this prerequisite from being met. The court stated that, on reconsideration of the relevant legislation, it did not accept that the conclusion followed from the argument. It held that the facts of the present matter and the decision of the Supreme Court of Appeal in Van der Merwe v The Master and Another 2010 (6) SA 544 (SCA) illustrated that the argument could not be correct.

Second, the court considered whether there was any “compelling reason” to grant leave under section 17(1)(a)(ii) of the Superior Courts Act. The compelling-reason submission rested on the contention that ECTA provisions had not previously received judicial consideration on these exact facts, that the issue was new and novel, and that the earlier judgment had attracted wide media attention. The court rejected this characterisation in substance, finding that the matter was not new or novel “in the real sense”, because it involved the application of section 2(3) of the Wills Act in circumstances where the jurisdictional facts necessary for that relief were either conceded, uncontested, or otherwise established, and therefore not controversial.

In that context, the court reiterated its view that there was no provision in ECTA which, expressly or by necessary implication, excluded the operation of section 2(3) of the Wills Act where the jurisdictional facts were established and not controversial. On the leave-to-appeal test, the court concluded that it could not find reasonable prospects that another court would reach a different conclusion, nor any special circumstance constituting a compelling reason to refer the matter on appeal.

Finally, the court dealt with costs. It held that no reason had been advanced to depart from the principle that costs follow the result, and it ordered costs on Scale B.

5. Outcome and Relief

The court dismissed the application for leave to appeal.

The applicant for leave to appeal, Mr Mmelesi, was ordered to pay the costs of the leave application, with costs to be taxed on Scale B.

The practical effect was that the earlier order of 1 August 2025 (directing the Master to accept the 2021 will for purposes of administering the estate) remained undisturbed.

Cases Cited

Smith v Parsons NO and Others 2010 (4) SA 378 (SCA).

Van der Merwe v The Master and Another 2010 (6) SA 544 (SCA).

Mont Chevaux Trust v Tina Goosen and Others 2014 JDR 2325 (LCC).

Ramakatsa and Others v African National Congress and Another (Case No: 724/2019) (2021) ZASCA 31 (31 March 2021).

Legislation Cited

Wills Act 7 of 1953 (including section 2(1) and section 2(3)).

Administration of Estates Act 66 of 1965.

Electronic Communications and Transactions Act 25 of 2002 (including sections 4(3) and 4(4), read with the relevant schedules).

Superior Courts Act 10 of 2013 (including section 17(1)).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the applicant failed to satisfy the statutory threshold for leave to appeal under section 17(1) of the Superior Courts Act 10 of 2013, both in relation to reasonable prospects of success and in relation to the existence of any compelling reason why an appeal should be heard.

It further held that, on the arguments advanced, there was no basis to conclude that another court would likely reach a different conclusion from that reached in the court a quo, and that the issues raised did not warrant leave merely because the factual scenario involved electronically appended signatures and an electronically stored will.

The application for leave to appeal was dismissed, and costs were awarded against Mr Mmelesi on Scale B.

LEGAL PRINCIPLES

The judgment applied the principle that leave to appeal is governed by the statutory requirements in section 17(1) of the Superior Courts Act 10 of 2013, requiring either reasonable prospects of success or some other compelling reason, and that the assessment must be grounded in a rational and dispassionate evaluation of the facts and the law.

It applied the principle, drawn from the Supreme Court of Appeal authorities relied upon in the court a quo, that where the jurisdictional requirements for relief under section 2(3) of the Wills Act 7 of 1953 have been established (including where they are conceded or not contested), the court is required to grant the relief contemplated by that section, as treated in the earlier judgment referenced in the present decision.

It further applied the principle that the operation of section 2(3) of the Wills Act is not excluded by ECTA in the absence of an express exclusion or one arising by necessary implication, at least on the facts as treated by the court where the jurisdictional facts were established and non-controversial.