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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST HIGH COURT MAHIKENG
CASE NO: M653/2020
In the matter between:
MOKONE THABE COMFORT LEFAKANE APPLICANT
and
LEFAKANE VUYO
STANDARD BANK TRUST
LIMITED/LIBERTY
JENNY NAIDOO -21104008985
THE MASTER OF THE HIGH COURT
OF SOUTH AFRICA
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
THE ESTATE OF THE LATE
LEFAKANE-PILANE, MMANKWANE ADELAIDE
(The deceased)
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives via email. The date and time for hand-down of the judgment is deemed to be
14:00 on 21 January 2026.
TSAUTSEAJ
Introduction
[l] Before this Court is an application brought in terms of Uniform Rule
6( 5)(g), in which the applicant seeks referral of the dispute regarding the
validity of the will of the late Lefakane Pilane Mmankwane Adelaide (the
deceased) to oral evidence. The first respondent opposes the application
and seeks dismissal thereof, together with costs on the attorney-and-client
scale.
[2] The main proceedings, launched by the applicant in November 2020, seek
to set aside the deceased's will dated 16 March 2018 on grounds that
include forgery by the first respondent, lack of testamentary capacity on
the part of the deceased, and undue influence exerted by the first
respondent. This application is limited to the question of whether the
dispute should proceed to oral evidence under Rule 6(5)(g).
Background Facts
[3] The deceased was born on 26 April 1950 and passed away on 22 April
2019. She married the late John Matlapen on 16th May 2002, who
predeceased her on 6 January 2018. The marriage produced no children.
[ 4] At the time of her death, the deceased was the owner of several immovable
properties situated in Mogale City and Moruleng, as well as various motor
vehicles.
[5] The deceased is survived by her two biological children, the applicant
(born 29 May 1972) and the first respondent (born 2 August 2006). The
deceased's late husband also had a child from a prior marriage, Pilane
Gobakweng Lekgalake, who is the executor of his father's estate.
[6] The applicant contends that the deceased suffered from serious chronic
illnesses during the three years preceding her death, including
hypertension, diabetes mellitus, and renal failure. According to the
applicant, these conditions caused an altered mental state, rendering the
deceased unable to appreciate the nature and consequences of executing a
will in March 2018.
[7] The applicant further alleges that the first respondent, who resided with the
deceased, was abusive, a substance abuser, and exetied undue influence
over the deceased. The applicant asserts that the deceased customarily
nominated both her children in equal shares across all her policies and
would not have disinherited the applicant had she been of sound mind.
The Applicant's Case
[8] The applicant anchors her case upon the assertion that the impugned will
does not reflect the true, voluntary, and independent intention of the
deceased. She avers that the document was not prepared pursuant to the
deceased's own instructions, but rather at the behest of the first and third
respondents, whose influence, she contends, overshadowed the deceased's
will. She maintains that at the time of the alleged execution of the
document, the deceased laboured under severe medical conditions which,
cumulatively and progressively, diminished her mental capacity to such an
extent that she could not appreciate the nature or consequences of
executing a testamentary instrument.
[9] The applicant also alleges that the atmosphere in which the will emerged
was one clouded by duress, undue pressure, and coercion from the first
respondent, whose conduct, she says, was abusive, manipulative, and
profoundly destabilising to the deceased. A further pall of suspicion is cast
by the applicant's suggestion that the signature on the document may be
forged, irregular, or otherwise not indicative of a conscious and capable act
of the testatrix.
[10] The applicant accepts that the matter, by its very nature, gives rise to
substantial and material disputes of fact. These disputes, she submits,
cannot be meaningfully or justly determined on the papers alone. In her
view, the truth of these assertions lies buried beneath layers of contested
narrative and requires the clarifying light of viva voce testimony.
Accordingly, she invokes Rule 6(5)(g) and petitions the Court to refer the
matter to oral evidence, so that the contested terrain may be traversed with
the benefit of examination and cross-examination.
[ 11] In addition, the applicant challenges the procedural integrity of the first
respondent's participation, arguing that his condonation affidavit, filed
more than twenty-six months out of time, falls woefully short of the
standard expected in such applications. She contends that the first
respondent has failed to provide a full and frank explanation for the delay,
has furnished no corroborating confirmatory affidavits, and ultimately has
not persuaded the Court that condonation is warranted. In her submission,
the defects in the condonation application further weaken the credibility of
the first respondent's opposition and underscore the need for a careful,
evidence-based inquiry.
The First Respondent's Case
[12] The first respondent resists the referral, maintaining that the applicant
ought, from the outset, to have anticipated material disputes of fact. In his
view, the applicant acted unreasonably in electing motion proceedings
where the nature of the issues plainly demanded action procedure.
[13] He further avers that the deceased possessed full testamentary capacity on
16 March 2018. In support of this position, he presents a detailed
chronology of the deceased's dealings with her financial advisor, Mr Paul
Gabriel Van der Aarde who worked for Discovery and Standard Bank.
According to him, the deceased drove herself from Rustenburg to Pretoria
on 19 February 2018 to consult on the preparation of her will, completed
the wills application form, and authorised its submission to Standard Bank.
[14] A draft will was emailed to her via Mr Paul Gabriel Van der Aarde for
approval on 6 March 2018, and on 16 March 2018 she again travelled to
Roodepoort, executed the will in the presence of Mr Paul Gabriel Van der
Aarde and Ms Marshia Botha, and arranged for its secure storage until
collected by Mr Azghar Bux from Standard bank.
[15] The first respondent denies the allegation of undue influence. He points to
a protection order the deceased obtained against the applicant on 23 August
2017, which he submits reflects a deliberate distancing by the deceased and
lends weight to her decision to exclude the applicant from her estate.
[16] He further contends that the applicant has furnished no expert medical
evidence, no handwriting analysis, and no substantiation capable of
sustaining the allegations of forgery or incapacity.
[17] The first respondent urges the Court to dismiss the application as an abuse
of the process, characterising it as the determined pursuit of a disappointed
heir bereft of factual foundation.
Issues for Determination
[18] The narrow question before the Court is whether this matter ought to be
referred to oral evidence in terms of Rule 6(5)(g). In addressing that
question, the Court must determine whether the disputes of fact raised on
the papers are real, material, and of such a nature that they cannot be
resolved without the benefit of viva voce testimony. Only where the paper
record proves insufficient to yield a reliable determination does the rule
permit the matter to proceed to oral evidence.
The Applicable Legal Principles
[ 19] Rule 6( 5)(g) affords the Court a measure of flexibility in managing motion
proceedings when disputes of fact emerge, enabling it to balance the
imperatives of justice with the need for procedural efficiency. Parties are
expected to anticipate such disputes and to seek appropriate directions at
an early stage. The guiding principle remains that set out in Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A). at para 24
, where the Court held that, in the face of genuine disputes of fact incapable
of resolution on affidavit, the matter must ordinarily be determined on the
respondent's version unless that version is so far-fetched or palpably
untenable that it may be rejected outright. Rule 6(5)(g) nevertheless
confers a discretion on the Court to depart from this default position by
directing that oral evidence be heard or by referring the matter to trial.
[20] In Mamadi and Another v Premier of Limpopo Province and Others (CCT
176/21) [2022} ZACC 26; 2023 (6) BCLR 733 (CC); 2024 (1) SA 1 (CC)
(6 July 2022) at para 43, the Constitutional Court confirmed that in review
proceedings brought under Rule 53, a court may not simply dismiss a
matter under Rule 6(5)(g) without providing a final determination, even
where factual disputes exist. The ordinary principles governing referrals to
oral evidence or trial therefore apply. The judgment further expatiates that
litigants must apply for such a referral timeously, for failure to do so may
result in the court applying the Plascon-Evans rule and deciding the matter
on the papers.
[21] A referral to oral evidence is justified only where justice cannot be
achieved through reliance on the affidavits alone. Before granting such
relief, the Court must be satisfied that the disputes are real and bona fide,
that they are material to the outcome, and that the hearing of oral testimony
will meaningfully assist in resolving them.
[22] The authorities consistently emphasise that a party who initiates motion
proceedings despite the foreseeability of material disputes of fact does so
at its own peril. Where disputes were reasonably predictable, a court may
refuse a referral and apply the Plascon-Evans rule, potentially resulting in
the dismissal of the application, as illustrated in Mercantile Bank (A
Division o/Capitec Bank Limited) v Ross (2020/19791) [2021] ZAGPJHC
149 (13 August 2021) at para 37 where the court dismissed an application
for referral to oral evidence because there was no explanation for the delay
in bringing the application timeously. This emphasises the need for
diligence by legal representatives in managing motion proceedings.
[23] In cases concerning the validity of a will, the central enquiry remains the
testator's mental capacity at the precise moment of execution. The Court's
assessment must be rooted in contemporaneous evidence, for it is that
moment alone which determines whether the will represents the free and
informed act of the testator.
Analysis
(1) Whether disputes of fact exist
[24] The papers reveal indisputable areas of factual contention. Central among
these are the deceased's mental capacity at the time the will was executed,
the presence or absence of undue influence, and whether the will reflects
the deceased's true intentions. Further disputes arise regarding the
deceased's physical ability to drive herself to Pretoria for consultations, the
authenticity of the signatures appended to the will, and whether the
applicant's exclusion was a legitimate act of the testatrix or the product of
manipulation by the respondents.
[25] These contested issues are not peripheral; they strike at the heart of the
inquiry into the will's validity. South African law has long adopted a
measured approach to material factual disputes in motion proceedings.
Where such disputes are genuine and incapable of resolution on affidavit,
final relief cannot be granted without recourse to oral evidence. The
principles restated in Stellenbosch Farmers' Winery Ltd v Stellenvale
Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235 E-G hold that final relief is
appropriate only where the facts as stated by the respondent, together with
those admitted by the applicant, justify such an order. A court may reject
the respondent's version only where it is so inherently improbable or
untenable that it can be dismissed without the benefit of oral testimony.
[26] Where this threshold is not met, Rule 6(5)(g) permits the Court to direct
that oral evidence be heard in order to resolve the disputes. This approach
has been affirmed in matters involving the validity of wills, where factual
complexities frequently demand the scrutiny that only viva voce evidence
can provide. In Mokoena v Molefe and Others (CIV APP FB 10/2022)
[2023] ZANWHC 116, for example, the Court referred the matter to oral
evidence precisely because disputes relating to testamentary capacity and
undue influence could not be adequately addressed on paper alone. Cases
of this nature often require detailed, contextual assessments, sometimes
including expert testimony, to establish the testator's state of mind and the
circumstances surrounding the execution of the will.
[27] It remains true, however, that allegations alone do not suffice. They must
be grounded in evidence capable of supporting a reasonable inference of
irregularity. Suspicion, however sincerely held, cannot stand as a substitute
for proof. In the present matter, the disputes raised are both genuine and
material, and their resolution cannot be obtained merely through the
affidavits. They therefore preclude a final determination on the papers.
(2) Whether the disputes are bona fide
[28] The first respondent places before the Court a detailed and coherent factual
account concerning the execution of the will, supported by documentation
and the testimony of witnesses involved in the process. The applicant, by
contrast, advances grave allegations of mental incapacity, undue influence,
and forgery, yet provides no expert medical opinion, no confirmatory
medical affidavits, and no handwriting analysis to support these claims.
[29] The absence of expert evidence is unquestionably noteworthy, but it is not,
at this preliminary stage, fatal to the applicant's case. The allegations,
although lightly supported, are of a nature that could be meaningfully
tested and clarified through oral testimony and cross-examination. The
assessment of whether a dispute is bona fide is governed by the principles
originating from the Plascon-Evans rule and later judicial refinements. In
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd, the Court held
that in final motion proceedings a dispute of fact prevents the granting of
final relief unless the facts alleged by the applicant and admitted by the
respondent, together with those alleged by the respondent, justify the order
sought. The applicant's version may be rejected only if it is fictitious or so
patently untenable that it can be dismissed on the papers alone.
[30] This approach was reaffirmed in National Director of Public Prosecutions
v Zuma, where the Supreme Court of Appeal emphasised that motion
proceedings are ill-suited to resolving factual conflicts unless the
respondent's version can be dismissed as a bare or uncreditworthy denial,
a contrived dispute, or one so implausible that it collapses under its own
weight.
[31] In applying these principles to the present matter, it becomes apparent that
a respondent is required to advance a factual matrix sufficient to reveal a
genuine triable issue, not merely to raise a bald contradiction. The
applicant's allegations of incapacity, undue influence and forgery are
serious accusations that ordinarily require some corroborative evidential
foundation. The absence of such corroboration may weaken their force on
paper, yet it does not necessarily strip them of all credibility. The nature of
the issues raised, particularly those relating to mental capacity and the
circumstances of the will's execution are precisely the type of matters that
are often elucidated only through the rigorous testing made possible in oral
proceedings.
[32] The Court retains a discretion under Rule 6(5)(g) to refer a matter to oral
evidence where the affidavits do not provide sufficient clarity and where
the interests of justice demand a fuller ventilation of the issues. The
jurisprudence recognises that, especially in disputes concerning the
validity of a will, a court may be compelled to rely on oral testimony and
expert evidence, for questions of testamentary capacity, volition, and
authenticity are rarely capable of definitive resolution on the papers alone.
[33] It is also true that the party alleging a dispute of fact bears the burden of
demonstrating its genuineness. They must address the disputed facts
directly and with sufficient candour. A failure to do so may invite the
application of the Plascon-Evans rule, permitting the Court to determine
the matter on the respondent's version. Yet the present allegations, though
thinly substantiated, are not inherently fanciful, nor are they incapable of
proof. They remain capable of being tested meaningfully through viva voce
evidence.
[34] The case law supports the conclusion that senous but presently
underdeveloped allegations may nonetheless constitute bona fide disputes
where they raise genuine concerns that cannot responsibly be resolved on
affidavit. The disputes in this matter, while imperfectly presented, are
sufficiently grounded to preclude a final determination on the papers alone.
(3) Whether oral evidence would resolve the disputes
[35] Questions about whether the deceased had the mental capacity to make a
will, whether any undue influence was exerted, and whether the signatures
are genuine are the kinds of issues that are best explored through oral
evidence. These matters depend heavily on assessing credibility,
understanding the surrounding circumstances, and evaluating expert
opinions. Affidavits alone rarely provide enough detail for the Court to
make reliable findings. Hearing witnesses testify and allowing for cross
examination gives the Court a fuller picture and helps it determine, with
greater confidence, what happened when the will was signed.
[36] In Spies NO v Smith en Andere 1957 (1) SA 539 (A), the Appellate Division
emphasised that undue influence strikes at the heart of free testamentary
expression and therefore requires careful scrutiny. The Court held that the
legal test for undue influence is met where it is shown that the testator's
will was displaced by the will of another, producing a disposition that the
testator would not have made freely and voluntarily. Such allegations,
involving coercion or fraud, are seldom capable of proper assessment on
the papers and ordinarily call for detailed, oral evidence. A similar
approach was adopted in ME.K and Another v Pokroy N. 0 and Others
(2024), where the High Court declared three wills executed by a terminally
ill testator invalid on the grounds of undue influence and lack of
testamentary capacity.
[37] The importance of oral and expert evidence in cases like this, is also well
illustrated in De Klerk and Others v Opperman; In Re: Opperman v
Opperman and Others (29052/2018) [2024) ZAGPJHC 1928. In that
matter, the Court refused leave to appeal after finding the deceased's will
invalid because he lacked testamentary capacity. That conclusion relied
heavily on expert medical evidence showing that the deceased had
moderate Alzheimer's disease and could not manage his affairs at the time
he signed the will.
[38] Although the applicants challenged the reliability of the respondent's
expert, the Court found that their own experts had taken too narrow a view
of the medical evidence. The respondent's expert, on the other hand, gave
a balanced and persuasive assessment. This case demonstrates how
essential oral and expert evidence can be in determining a testator's mental
state and in resolving complex factual disputes, just as in the matter now
before this Court.
Whether Oral Evidence Resolves Disputes
[39] However, the Court must also consider whether the applicant ought to have
instituted action proceedings from the outset, given the foreseeability of
these disputes. Even so, the Court must also take into account that the
applicant chose to proceed by way of motion rather than by issuing action.
The disputes about capacity, influence, and proper execution were
foreseeable from the beginning. A party who selects the motion procedure
despite clear factual disputes assumes the procedural risks that follow. The
Court must therefore balance the need for oral evidence to reach a just
outcome with the principle that litigants must choose a procedure that is
appropriate for the kinds of disputes they intend to raise.
(4) Interests of justice
[ 40] The validity of a will constitutes a matter of profound importance,
warranting a procedure that permits the fullest ventilation of the truth.
Courts exercise their discretion under Rule 6(5)(g) to refer disputes to oral
evidence where the interests of justice demand it, particularly in estate
matters involving capacity and influence.
[ 41] Despite the applicant's procedural irregularities and limited supporting
evidence, the gravity of the issues, testamentary capacity, volition, and
potential undue influence, militates against summary dismissal without a
full evidentiary hearing. In Gundwana v Steko Development CC and
Others (CCT 44/10) [2011] ZACC 14; 2011 (3) SA 608 (CC); 2011 (8)
BCLR 792 (CC). and similar rulings, the Constitutional Court has affirmed
that bypassing oral evidence in motion proceedings contravenes the
interests of justice when material facts are disputed.
Conclusion
[ 42] The Court is satisfied that material and bona fide disputes of fact exist,
which cannot be resolved on the papers alone, and that oral evidence will
materially assist in their determination. The interests of justice compel
referral to viva voce proceedings rather than dismissal, notwithstanding the
applicant's procedural shortcomings.
[ 43] While both practitioners levelled accusations of imprecision in drafting and
lapses in case management against each other particularly regarding the
alleged repetition of affidavits and the pursuit of a motion procedure
despite foreseeable disputes, this Court reminds counsel that their duty is
to advance these proceedings with professionalism, restraint, and courtesy.
The interests of the parties must remain paramount. Although the
circumstances do not justify a punitive costs order at this stage, the usual
principle that costs follow the result shall apply, thereby encouraging
diligence and procedural efficiency.
Order
1. The application succeeds and is referred to oral evidence in terms of
Uniform Rule 6(5)(g).
2. The issues for viva voce determination are:
o (a) Whether the deceased possessed testamentary capacity when
executing the will dated 16 March 2018;
o (b) Whether the will was executed freely and voluntarily;
o ( c) Whether the first respondent exe1ted undue influence;
o (d) The authenticity of the signatures on the will;
o (e) Whether the will reflects the deceased's genuine testamentary
wishes.
3. Within sixty (60) days of this order, the parties must file agreed witness
statements including expert summaries if relied upon, or approach the
Registrar for a case management conference if no agreement is reached.
4. The costs of this application are costs in the cause.
Judge of the High Court
APPEARANCES
For the Applicant
Instructed By
For the Respondent:
Instructed By
Date of hearing:
Date of judgment
Mr S T Malejwe
Malejwe inc
C/O Thato Kgaoganye
Mr Sipho J Mphakathi
Mphakathi Attorneys
C/O Kgomo Attorneys inc
25 November 2025
21 January 2026