About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2026
>>
[2026] ZAGPJHC 107
|
|
Modise and Another v Modise and Others (58612/2021) [2026] ZAGPJHC 107 (12 February 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case Number: 58612/2021
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
In
the matter between:
MODISE
NEHEMIA
Applicant
and
MODISE
REFILOE AGNES N.O
First Respondent
ABSA
BANK
LIMITED
Second Respondent
MASTER
OF THE HIGH COURT OF SOUTH AFRICA
Third Respondent
JUDGMENT
MAKUME, J
Introduction
[1]
In this matter the Applicant seeks an order that the last will and
testament of the late Matsatsi Agnes Khutsoane (“the
deceased”)
be declared invalid.
[2]
The application is opposed by the first Respondent who is cited in
her capacity as the executrix duly appointed by the
Master of the
High Court (third Respondent) pursuant to the wishes of the deceased.
[3]
The second Respondent ABSA Bank as well as the third Respondent have
indicated that they will abide the decision of this
Court.
Background
facts
[4]
It is necessary to set out a brief narrative of certain facts and
circumstances
giving rise to the litigation which bear on the
question to be decided as they appear from the papers.
[5]
The deceased Matsatsi Agnes Khutsoane was born on 30 September 1938
and died of natural causes on 6 December 2012 at Tsakane,
her place
of domicile. She was formally Modise and got married to a Mr
Khutsoane.
[6]
On 21
January 2013 the third respondent issued the first respondent with
letters of executorship in terms of section 13 and 14 of
the
Administration of Estates Act.
[1]
The appointment was made pursuant to the filing of a will dated 13
November 2012, which will was signed by the making of a mark.
[7]
In the will, the deceased bequeathed her estate to her grandchildren
namely Thabang Modise, Nthabiseng Modise, Karabo
Modise and Rifilwe
Agnes Modise. It is worth noting that none of the heirs have
been cited as interested parties in this
application. I will
revert to this later in this judgment.
[8]
In clause 4 of the contested will, the deceased nominated Rifilwe
Modise as executrix of her estate. Rifilwe Modise
is a daughter
of Moeketse Modise, the late son of the deceased. She is thus
the granddaughter of the deceased.
The
applicant's replying affidavit and condonation
[9]
During 2013 Rifilwe Agnes Modise, in her personal capacity, obtained
an order in the Brakpan Magistrates Court under case
number
1579/2013, evicting the Applicant and all those in occupation.
The order attached does not specify eviction from where
the eviction
place. I will, for purposes of this judgment assume it is
eviction from a property inherited by Rifilwe Modise,
being Erf 6209
Venda Street, Tsakane, Brakpan.
[10]
The Applicant confirms in his replying affidavit that on 19 December
2012, shortly after the death of the deceased, he
was shown a copy of
the deceased's will. He has thus been aware of the contents of
the will since that time.
[11]
During or about November 2013, the Applicant applied for leave to
appeal the eviction order and was not successful, or
as he says he
abandoned the application as he could not afford fees for legal
representation.
[12]
During March 2021, the applicant launched this application seeking an
order declaring the will invalid on the basis that
the deceased was
not in a healthy state to have executed the will on 13 November
2012. Secondly, the Applicant seeks an order
that the first
Respondent be removed as executrix and that the estate of the
deceased be dealt with as an intestate estate.
[13]
On 25 March 2021, the Applicant instructed his attorneys Messrs
Umeneka to investigate circumstances relating to the
drafting of the
will by the deceased who, on 13 November 2012 was on her dying bed.
Secondly, to investigate if indeed the
will was drafted by ABSA Bank
and whether the deceased was indeed present during the drafting of
the will. The power of attorney
says nothing about instituting
action to declare the will null and void. I will, however,
accept that the notice of motion
supported by the Applicant's
affidavit has the effect of curing what appears on the power of
attorney.
The
Applicant’s Case
[14]
The applicant's case is to the effect that the deceased was not well
and could never have been able to travel from Brakpan
to Springs to
have a will drawn up and signed. It is implied that because in
the medical certificate dated 18 June 2012 by
Dr M Sarang, it is said
that the deceased suffered from mild hemiplegia and was unable to
walk and needs a wheelchair. It
is on this basis only that the
Applicant would like the Court to accept that the deceased was of
unsound mind and could never have
been able to appreciate what she
did on 13 November 2012. The Applicant further maintains that
the will, so signed, by the
making of a mark does not comply with the
requirements of the statute.
The
Respondent's Case
[15]
The Respondent's case is that she lived with the deceased and that on
13 November 2012, she, her own mother and aunt
Winnie drove to ABSA
Bank in Springs with the deceased, where the deceased executed the
will. She was not present at the
signing as she stood outside
the bank premises.
The
Issues
[16]
It is common cause that the will was signed by the making of a mark
and witnessed by two witnesses. It is further
common cause that
the commissioner of oaths Trinesha Pillay only attached her
certificate on 20 December 2012, some two weeks after
the death of
the deceased who died on 5 December 2012.
[17]
The issue to be determined by this Court is whether the deceased
executed the will on 13 November 2012, secondly whether
the fact that
the commissioner of oaths only certified the will after the death of
the deceased invalidates that will.
The
Evidence Applied To The Legal Position
[18]
It is trite
law that a will which is regular on the face of it is presumed to be
valid unless it is declared invalid and the onus
of proving its
invalidity is on the person who challenges it, which onus is
discharged on a preponderance of probability.
In
Essop
v Mustapha
[2]
Friedman J held at page 22, paragraph i as follows:
"The testator's
mental condition at the time he gave instructions for the drafting of
his will is irrelevant, particularly
in the circumstances of the
present case."
[19]
In this matter there is overwhelming evidence that the deceased was
accompanied by her daughter and another relative
to ABSA Bank,
Springs, and that she was of sound mind. The Applicant can only
rely on a medical condition of 18 June 2012
some five months prior to
the execution of the will.
[20]
The will is drafted on the letterhead of ABSA Bank. There is
confirmation to that effect by an official of the
bank and one of the
witnesses to the will also signed next to the thumbprint of the
deceased. The bank official could not
have signed, clearly
noting that the deceased was of unsound mind.
[21]
The second issue raised is that the commissioner of oaths only
appended his signature to the will, signed by the making
of a mark,
two weeks after the death of the deceased. The Applicant argues
that alone also invalidates the will. It
is worth noting that
this was only raised in the replying affidavit when in fact the
Applicant had been placed in possession of
the will since 2013.
There is no explanation why he did not allude to this fact in his
founding affidavit.
[22]
Section
2(v)(bb) of the Wills Act
[3]
is
clear and unambiguous, it reads as follows:
"If the testator
dies after the will has been signed in terms of subparagraph (i),
(iii) and (iv) but before the commissioner
of oaths has made a
certificate concerned, the commissioner of oaths shall, as soon as
possible thereafter, make or complete a
certificate and sign each
page of the will, excluding the page on which his certificate
appears."
[23]
This is
exactly what happened, the commissioner did so and attached his
certificate two weeks after that of the deceased.
There is now
prohibition that a commissioner may not do so after the death, it can
be done at any time after the signing of the
testatrix. The
fact that the testatrix had died is of no consequence. The
commissioner did satisfy himself that the
will signed by the making
of a mark is that of the deceased as to how he or she satisfied
himself and arrived at that conclusion
is not what the Act requires.
It could have been by the person at the bank who drafted the will, it
could also have been
on the information from the witnesses to the
will. In the matter of
Roberts
and Another v the Master
[4]
Moll J quoted with approval the decision in
Arendse
v The Master and Others
[5]
wherein Baker J, after exhaustive review of the authorities concluded
arbiter that the prescribed certificate can be appended at
any time
after the will has been marked by the testator and signed by the
witness, and this even post-mortem testatoris.
[24]
In the result this Court is satisfied that the Applicant has failed
to discharge the onus that the will of the deceased
is invalid.
Having said so there is another issue that I now deal with mero motu,
it is the non-joinder of the heirs.
The Applicant, in his own
words testified that the police showed him a copy of the will in
2013. He has been aware since
then that there are other
beneficiaries in the will, namely Thabang Modise, Nthabiseng Modise,
Karabo Modise and Rifilwe Modise
and yet none of them have been cited
as parties to the application. That alone, is fatal to his
case.
[25]
In
Amalgamated
Engineering Union v Minister of Labour
[6]
and in the matter of
Bowring
NO v Vrededorp Properties CC
[7]
,
paragraph 21 it was held that a Court must raise the issue of
non-joinder mero motu if it believes that there are interested
parties who should have been joined or given notice of the pleadings
and this can be done even on appeal.
[26]
This Court raised this, mero motu, with the applicant's counsel, as
to why the other heirs have not been joined as they
clearly have a
vested interest in the outcome of this litigation. I invited
the parties to send me supplementary heads dealing
with that aspect.
I have now received the supplementary heads from both parties and I
am grateful for the insightful submissions
made by both counsel,
which have been helpful. I am aware that counsel dealt with
other issues that I have already touched
on in this judgment.
My interest was only on the joinder or non-joinder.
[27]
Having said
that I, however, that in the supplementary heads the Respondent has
dealt with the issue of the notice of motion which
calls for a review
of the decision taken by the Master in accepting the will as being
genuine. The Respondent has correctly
drawn my attention to the
requirements for review as set out in the Promotion of Administration
Justice Act
[8]
as well as to
Rule 53 of the uniform rules. It is correct that the fact that
the Applicant now challenges the validity of
the will does not find
grounds to challenge the Master's exercise of his statutory
discretion. Review applications are governed
by and must follow
the requirements of Rule 53 of the Rules, with reference to the
provisions of PAJA. Counsel for the respondent
has referred me
to the decision by Brand J in the matter
of
Ncelekazi v Master of the High Court Mthatha and Others
[9]
wherein the court stated that:
"It is axiomatic
that the rights to review an appointment by the Master in terms of
section 95 of the Administration of Estates
Act is a statutory
recordal of such right and provides no independent grounds for review
apart from those contained in the Promotion
of Administration of
Justice Act 3 of 2000 or, to the extent appliable, the common law."
The
Nonjoinder Of Other Beneficiaries As Mentioned In The Will
[28]
It is common cause that in the will the testatrix not only bequeathed
her estate to the first Respondent but also the
three other
grandchildren namely Thabang Modise, Karabo Modise and Nthabiseng
Modise. The question is whether they should
have been joined or
not in the application. The applicant argues in his
supplementary heads that it is not necessary as the
estate is
represented by the executrix in the litigation and that the
beneficiaries have no locus standi to litigate while the
executor is
in office. The applicants have missed the point and ignored the
fact that in the evet the Court declares the
will invalid, then the
nominated beneficiaries have no claim to the estate. The
deceased has, in the will, said that the
property should not be sold
but it should remain as a family house, and that does not cure
the defect of nonjoinder.
[29]
It is trite law that immediately on the death of a deceased, the
assets vest in the nominated beneficiaries represented
by the
executor. To say that those beneficiaries have no interest
cannot be correct. The
ABSA Bank v Naude and Others
decision
quoted by the applicant in the supplementary heads, is on point.
[30]
I have accordingly come to the conclusion that the Applicant has
failed to make out a case and that the application should
be
dismissed with costs.
Order
[31]
In the result I make the following order;
(a) The application
is dismissed with costs.
MAKUME
JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
JOHANNESBURG
Appearances
For
the Applicants:
Adv
N Mohlala
Instructed:
Umenaka
Attorneys
For
the Respondent:
Tlou
J Phihlela
Instructed:
Legal
Aid South Africa
Date
of hearing:
26
January 2026
Date
of Judgement:
12
February 2026
[1]
66
of 1965.
[2]
Essop
v Mustapha
1988 (4) SA 213
(D)
[3]
7
of 1953.
[4]
1975
(4) (WLD).
[5]
1973
(3) SA 333.
[6]
1949
(3) SA 637 (A).
[7]
2007
(5) SA 391 (SCA).
[8]
3
of 2000.
[9]
2023
JDR 3510 ECM.