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,
MPUMALANGA DIVISION, MIDDELBURG (LOCAL SEAT)
CASE NUMBER: 2172/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED YES/NO
DATE 07/05/2026
SIGNATURE
In the application between:
HERMANUS JOHANNES DEMPERS KOTZEE FIRST APPLICANT
NICHOLAAS CORNELIUS VAN HUYSSTEEN SECOND APPLICANT
obo ARMAND KOTZEE THIRD APPLICANT
obo SIMEON KOTZEE FOURTH APPLICANT
obo SYBIL TOLMAY FIFTH APPLICANT
obo EHRHARDT TOLMAY SIXTH APPLICANT
obo ALWY TOLMAY SEVENTH APPLICANT
and
J[...] D[...] B[...] FIRST RESPONDENT
MARIA ELIZABETH CARBIS SECOND RESPONDENT
MARGARETHA MARIA CARBIS THIRD RESPONDENT
2
MATTHYS JOHANNES BLOM FOURTH RESPONDENT
THE MASTER OF THE MIDDELBURG FIFTH RESPONDENT
HIGH COURT
______________________________________________________________
JUDGMENT
______________________________________________________________
FOURIE AJ
INTRODUCTION:
[1] The Applicants made an application to Court premised on Section 2(3) of the
Wills Act, 7 of 1953, for a document which they believe to be the Last Will
and Testament of the deceased to be declared as the valid and intended
Last Will and Testament of the deceased after the said document was
rejected by the Master of the High Court as being a compliant Last Will and
Testament.
BACKGROUND FACTS:
[2] The deceased, one Martha -Louise Basson, was a major female who, at the
time of her passing, was 70 years old. The First Applicant, Mr Hermanus
Kotzee, was, at the time of the deceased’s passing, the life partner of the
deceased, a fact that is not disputed , and it further seems undisputed that
Mr Kotzee has been the deceased's life partner for a considerable period .
The First Respondent, Mr J[...] D[...] B[...], was the erstwhile husband of the
deceased, who was married to the deceased from 1973 until their divorce in
2001.
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[3] The deceased was the owner of several properties, among which were
several farms, one of which was occupied by the First Respondent. The
Respondent ordinarily resided in Secunda, some 30km from the farming
activities, and it is common cause that the deceased commuted daily from
Secunda to the farming activities. Mr Kotzee is also a farmer who conducts
farming operations in Vrede. It is not seriously alleged that Mr Kotzee and
the deceased were at all time s residing together, although their relationship
is similarly not seriously contested. The First Applicant, Kotzee, alleges that,
after the passing of the deceased, he attended her residence in Secunda,
where, with the help of a locksmith, he unlocked a safe, after which the
document, which the Applicant’s prayer is declared to be the Last Will and
Testament of the deceased, was found. The document is dated 14 October
2023, seven days prior to the deceased's passing. It is necessary to state
that the deceased died of natural causes after a long struggle with cancer.
[4] For ease of reference, the 14 October 2023 document shall be referred to
hereinafter as the “14 October Will”, without pronouncing on the validity of
such document.
[5] The Applicant further states that, after the document was handed to the
Master of the High Court, an endeavour he took upon himself as he was in
the document nominated as the Executor of the estate of the deceased, the
document was rejected by the Master of the High Court as being a valid Last
Will and Testament.
[6] Although the rejection notice from the Master of the High Court was not
supplied by the parties, it is common cause that the document is non -
compliant with the Wills Act, 7 of 1953, in that the document was not signed
in the presence of any witnesses, nor was the document countersigned at all
by any witnesses. It is fu rther common cause that the document was not
signed by the deceased with a pen on paper, but rather bears an electronic
signed by the deceased with a pen on paper, but rather bears an electronic
signature. The document was rightfully rejected by the Master of the High
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Court because it is non -compliant with the requirements for a valid Last Will
and Testament.
[7] After being informed that the document was not compliant, the Applicant
alleges that he returned to the deceased’s premises, where he found two
further documents in the bedside drawer of the deceased, which he believed
to be necessary to advance the claim presented to the Court. Firstly, a
handwritten document dated 9 March 2020, written under the hand of the
deceased, purporting to be her Last Will and Testament at the time, was
advanced. This document was purportedly signed by the deceased by
writing her full name at the end of the document, although it was not signed
by her with a signature and was signed only by one unknown witness.
[8] I pause to mention that , initially, the Applicants had an alternative prayer
that, should the Court not find the document of 14 October 2023 to be a valid
Last Will and Testament under the auspices of Section 2 (3) of the Wills Act,
supra, then this document dated 9 March 2020, ought to be accepted as the
Last Will and Testament of the deceased. At the hearing of the matter ,
however, this prayer in the Notice of Motion was not persisted with, and as
such, I do not intend to pronounce on the validity of this document. The First
Applicant also advanced a typed document resembling the logo of a
Company named Shetland, an incomplete, unsigned two -page document
similarly undated.
[9] It is evident that this document was not drawn by the deceased, a fact
confirmed by correspondence with the Fourth Respondent, who appears to
be the broker and/or financial advisor of the deceased. The Fourth
Respondent confirmed that he was not in possession of a signed Last Will
and Testament of the deceased and expressly stated to the First Applicant’s
attorney that the parties never got round to finalising the Last Will and
Testament of the deceased.
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[10] No facts were presented to indicate that the 14 October 2023 Will was drawn
by the Fourth Respondent, or that the Applicant gave any instructions to any
party to draw the Will on her behalf.
[11] No evidence was presented on who the ultimate drafter of the 14 October
2023 Will was, and although the Applicants, in their Heads of Argument,
seek the Court to find that the Will was drafted on behalf of the deceased, it
seemed rather during argument that it was conceded that the Court needs to
make an inference that the document was ultimately drafted by the
deceased. This is largely because no evidence was presented that any
instructions were given to draft the document on behalf of the deceased.
[12] Although it was not contested that the signature on the 14 October 2023 Will
resembled the deceased's signature, no evidence was presented as to how,
where, or by which mechanism the electronic signature was generated and
appended to the document.
[13] No evidence was presented indicating that the deceased, a 70 -year-old lady,
had ever previously utilised electronic signatures, or in what way. The
inference the Applicant wishes the Court to draw is that, because the
document exists, and was found by the First Applicant at the deceased’s
premises, the document could only have been drafted by the deceased and
signed by her.
[14] The First Respondent , in opposing the application, alleges that the 14
October 2023 Last Will and Testament is not valid, and it is presented
through some fraudulent actions by the First Applicant. No particularity to
these averments has been made by the First Respondent in order for the
Court to seriously consider the allegations of fraud.
[15] It is noteworthy , however, to point out that the First Applicant provided no
confirmatory affidavit by the locksmith who allegedly attended the
deceased’s premises with the First Applicant, who , at the very least, could
6
verify the attendance at the deceased’s premises and the safe, and the fact
that the document was under those circumstances, removed from the
deceased’s safe.
[16] Both the founding and answering papers are silent on the issue of witnessing
the 14 October 2023 Last Will and Testament. Much attention was paid to
the fact that the document was electronically signed, but no real
consideration was given to why it was not signed by witnesses.
[17] At the very least, the handwritten Will of the deceased of 9 March 2020 was
signed by one unidentified witness, and the unsigned Will drafted by the
deceased’s broker made provision for the signing thereof by several
witnesses. Accordingly, it cannot be accepted that the deceased was
unaware of the requirement that her Last Will and Testament be signed by a
witness.
[18] The only evidence pertaining to the movements of the deceased in the
period preceding her death, having regard to the fact that the 14 October
2023 Will was signed seven days prior to her passing, is that, on 16 October
2023, and between the time that the 14 October 2023 Will was signed,
allegedly, and the passing of the deceased, the deceased together with the
First Applicant, collected a friend, Joan Austin, from the airport who visited
the deceased.
[19] At the very least , it is also not seriously contested that the wife of the First
Respondent also frequently visited the deceased during the period in
question. As stated, no evidence was presented to explain why it would
have been impossible for the deceased to have any witness acknowledge
that she had signed her Last Will and Testament on 14 October 2023.
[20] Having regard to the three documents referenced as possible last wills and
testaments of the deceased, it is specifically the unsigned Last Will and
Testament received from the deceased’s broker and the 14 October 2023
7
Last Will and Testament that is to be compared , as, at the very least, some
sort of confirmation was received that the unsigned Will was drafted on the
instructions of the deceased.
[21] The most glaring differences between the respective documents are
summarised hereinafter:
[18.1] The undrafted will reflect the drafting company's logo , whereas
the 14 October 2023 will does not.
[18.2] The unsigned will mentions several “erfgename” indicating plural,
where the signed will, as a heading, indicates a singular
“ergenaam.
[18.3] The unsigned document expressly provides a place on each page
for the witnesses to sign, whereas the signed 14 October 2023
Will is the first document not to make any provision for witnesses
to sign.
[18.4] The unsigned will incorporates a request for the deceased to be
buried, whereas the signed 14 October 2023 Will incorporates a
request for the deceased to be cremated.
[18.5] The unsigned document seeks to appoint the Fourth Respondent
as the Executor in the deceased’s estate, whereas the signed
14 October 2023 Will appoints the First Applicant as the Executor.
[18.6] The unsigned document nominates two independent persons to
act as independent Trustees in a Trust to be established, whereas
the signed 14 October 2023 Will reflects only one independent
Trustee, specifically so nominated.
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[18.7] The unsigned document bequeaths a property to a friend of the
deceased and the remainder of her estate to a Trust established
in favour of Afrikaans -speaking students and their st udies,
whereas the 14 October 2023 Will provides that the deceased’s
friend may purchase the property, and the Trust is nominated to
have several beneficiaries , which beneficiaries are seemingly the
remaining Applicants and Respondents in the application. The
beneficiaries appear to be the children and grandchildren of the
deceased, as well as the grandchildren of the First Applicant.
[22] The Applicants allege that the Second and Third Respondents support the
application. This is not the case as the Second and Third Respondents
merely filed notices to abide. A Notice to Abide cannot be equated to a
supporting affidavit. If the Court were to believe that these Respondents
support the application, affidavits or even letters to that effect would have
been presented in the Court record. The Notices to Abide simply indicate
that the Second and Third Respondents do not take issue with the ultimate
decision by the Court. This is as true for the granting of the application as
for its dismissal. By filing a Notice to Abide , a party clearly takes the position
that they accept any outcome the Court ultimately reaches.
THE ISSUES TO BE DECIDED:
[23] It is common cause between the parties that the 14 October 2023 Last Will
and Testament is non -compliant and, in the absence of the Court granting
the application in respect of Section 2(3) of the Wills Act, supra, the
document will not be accepted as such.
[24] The Court accordingly needs to evaluate whether the 14 October 2023 Last
Will and Testament has been proven to be a document drafted or executed
by the deceased and intended as her Last Will.
9
[25] If the Court is satisfied on the aforesaid, an Order in line with Section 2(3) of
the Wills Act, needs to be made.
[26] The Court must be satisfied on a balance of probabilities that the deceased
intended the document to be her Will.[1]
[27] The purpose of Section 2(3) of the Wills Act is to validate a document that
would otherwise not pass muster as a Will due to a technical flaw in its
attestation……. to avoid thwarting the lawful wishes of the deceased would -
be testator.[2]
[28] The Courts have continually found, and I align myself therewith, that a Court
in dealing with an application such as the current one ought to be satisfied
that the document in question was intended by the Testator to be her Will.
A document that is not yet complete, a working document or general
instructions to a person to draft a Will on behalf of another party is generally
not accepted as an intention by a party for such to be their Will.[3]
[29] Although certain elements of the investigation into a Section 2(3) of the Wills
Act application might draw some leniency from the Court evaluating the
question, the crucial question of the true intention of the deceased or
Testator has consistently attracted a strict approach to interpretation. A strict
application of what the true intention of the Testator was and whether the
document was intended to be a Last Will and Testament remains , in my
view, necessary.
[30] If it is not expressly and blatantly clear that the document was indeed the
intended Last Will of the deceased, the Court would, in essence, be
speculating on the true nature of the document. Section 2(3) of the Wills Act
was clearly incorporated to cater for circumstances where an injustice would
be done to the last wishes of a deceased, where it is abundantly clear that a
document with some technical issues should be accepted , as, on a balance
of probabilities , this document is indeed the Last Will and Testament of a
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Testator. Order s validating invalid Last Will s and Testaments under the
auspices of Section 2(3) of the Wills Act should be reserved for
circumstances where the intentions of a Testator are clear, not for
circumstances where the intentions are unclear, and the parties or the Court
are left to speculate or w onder on the true nature of a document or a party’s
intentions.
[31] Bekker v Naude [4] is perhaps one of the most-quoted matters concerning
Section 2(3) of the Wills Act applications. The principle in Bekker is simply
that the Court needs to be satisfied that the deceased drafted or executed
the relevant document.
[32] In order to establish whether a person drafted or executed a document, the
same should be derived from the supporting facts presented, and from which
it ought to be clear that the document was indeed drafted or executed by the
deceased.
[33] It was argued by the First Respondent that, because the document was
signed electronically, it would automatically and under all circumstances be
excluded from being declared as a valid Last Will and Testament because
the Electronic Communications and Transition Act[5] precludes it as such.
[34] Even if it could be stated that the ECDA finds application to the matter, I
align myself with the views of Lever J, in the matter of Mokgoro [6],
specifically insofar as it deals with the fact that Section 2(3) of the Wills Act
expressly provides that a Will is to be signed by placing ink on paper. If a
document is signed by means of an electronic signature, but a party is
nonetheless able to convince the Court that the signature as appended by
the deceased, and that the deceased intended that document to be their
Last Will and Testament, I see no reason why an electronic signature would
not be condoned by a Court if the facts of a matter justify the same. In
saying that, I believe that the rationale for the signing of a Last Will and
Testament in the presence of two witnesses is obvious as the signing of a
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Last Will and Testament by a person under their own hand in the presence
of two witnesses alleviates the need to prove that it was indeed the
deceased who signed the document and it indicates that there were at least
two individuals that could attest to that fact. The Court is mindful, however
that we are living in an evolving world, specifically on a technological front,
and I believe that, if a party is able to establish that the document was
indeed intended to be the last will and testament of a deceased, which is to
be evaluated on a rigid approach, then the remaining aspects such as strict
compliance with the formal manner in which a document is singed or
confirmed by witnesses, should be evaluated with a much more lenient view.
The aforesaid aligns with the General Legal Principles of favouring
substance over form.
[35] The aforesaid is not stated in order for parties to take a relaxed approach to
drawing and signing of Wills, as the document ultimately remains one of the
most important documents a party will sign in their lives. The statement is
made to cater for individuals who, due to deserving circumstances, were
necessitated to draw less than perfect documents or to convey their last
wishes in some or other fashion that is generally not accepted but which a
Court can accept to be their last wishes. The facts of each individual matter
will speak for themselves to indicate whether the Court could and should
give effect to what is ultimately presented as their Last Will and Testament.
EVALUATION OF THE FACTS:
[36] It is conceded that there are no facts before the Court indicating who the
author of the 14 October 2023 Will and Testament was.
[37] Similarly, no facts were presented to indicate and prove that it was indeed
the deceased who appended the electronic signature to the 14 October 2023
Will and Testament . This Court would have had little difficulty in accepting
the
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14 October 2023 Will and Testament as the last will and testament of the
deceased, if the deceased, in the presence of at least one person, if not two
as required by the Act, appended an electronic signature to the document
indicating it to be her Last Will and Testament.
[38] Unfortunately for the Applicants, this is not the case in the current matter.
The Court is left to speculate as to how the document in question came into
existence and how it was ultimately signed. The high-water mark for the
Applicants is that, because the document was found by the First Applicant at
the ordinary residence of the deceased, the Court needs to infer that it was
drawn and executed by the deceased. No confirming or corroborating facts
to support this notion other than the inference the Applicants wishes the
Court to draw have been presented.
[39] The document , ultimately presented as the purported Last Will and
Testament of the deceased, is markedly different from the one on which an
engagement was made with the deceased’s broker. At the very least, the
Court is instructed that, insofar as it relates to the involvement of the broker,
the deceased had not yet finalised her last will and testament, and no final
and intentional Last Will and Testament existed.
[40] No explanation is given as to whether the deceased had previously utilised
electronic signatures.
[41] No evidence was presented as to why the deceased, who seemingly knew of
the requirements in respect of the signing of the will in the presence of
witnesses, would not attend to the signing of the will in the presence of
witnesses or, at the very least, inform anyone of the existence of a newly
signed will.
[42] The terms of the 14 October 2023 Will and Testament were never previously
discussed with any person who can corroborate the same to be the last
13
wishes of the deceased, and the Court would do nothing less than speculate
on who the author was in respect of the document or who ultimately
appended an electronic signature thereon.
[43] The Applicants in essence seek the Court to be convinced that a document
that no other person knew existed was found by the person who is, for the
first time in the new document, nominated as the executor in the estate of
the deceased, and from which several of his family members derive benefits
which have never featured in previous Last Will and Testaments, which
document was not signed under the hand of the deceased and without any
sort of confirmatory proof indicating that it was indeed the deceased who
appended her signature electronically to the document.
[44] The Court is in no way pronouncing on any fraudulent actions of the First
Applicant. No such fraudulent actions have been seriously alleged nor found
by this Court. The aforesaid sentiment was made purely to indicate the
dangers that a ruling in favour of the Applicants would pose to future
matters, and the manner in which the proverbial floodgates would open for
other parties to conduct themselves fraudulently to benefit from the estates
of deceased persons. A ruling in favour of the Applicants would , in essence,
mean the Court would allow any person, without any substantiating proof as
to how a document came into existence, to present such a document with an
electronic signature without needing to prove that it was the deceased who
appended the electronic signature while alleging that document to be the last
will and testament of a deceased. This would be an unthinkable proposition.
[45] Even if the Court were to accept the uncorroborated statement that the
14 October 2023 Will and Testament was found in the safe of the deceased
at her residence ; the location of a document cannot, on its own, prove its
validity or the intention of the person at whose premises it was found.
validity or the intention of the person at whose premises it was found.
[46] The Applicants have simply failed to adduce any sort of evidence to prove
the 14 October 2023 Will and Testament to be the intended last will and
14
testament of the deceased. Absent the Applicants convincing the Court on
this principle, the Applicants simply cannot succeed. The fact that the formal
requirements for the execution of the will were , in nearly all circumstances,
not complied with, and no explanation for such non -compliance has been
forthcoming, similarly does not aid the Applicants in the relief they seek.
[47] When a Court is confronted with an application under Section 2(3) of the
Wills Act, a Court is to be convinced on the facts that an injustice would
otherwise unfold if the Court does not overlook the technical deficiencies in
the document.
[48] Applications of this nature are not designed to embark upon endeavours of
speculation and unsubstantiated inferences. The Applicants have simply not
advanced facts to substantiate the relief they are seeking.
COSTS:
[49] Although costs remain a discretionary mechanism available to a Court in
order to ensure that ultimate justice is done when a Judgment is delivered, it
is generally accepted that the unsuccessful party to litigation should be
ordered to pay the costs of the successful party to the litigation.
Unfortunately, both the Applicants and the First Respondent, rather than
presenting facts dealing with the express requirements of an application of
this nature, embarked upon an historical set out of the deceased’s life. The
true questions pertaining to her last will and testament remain unanswered.
[50] Under circumstances where the Applicants ought to have known that they
simply did not present to the Court sufficient facts to succeed with the
application, cannot be overlooked by the Court, although the matter deals
with parties that are at least to some degree, extended family, and dealing
with an estate of a deceased, I find no reason why a Court Order deviating
from the normal principles should not be made.
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ORDER:
[51] For all the aforesaid reasons, the following Order is made:
[47.1] The Applicant’s application is dismissed.
[47.2] The Applicants shall, jointly and severally , the one paying the other
to be absolved, pay the costs of the First Respondent on a party and
party scale.
________________________
H F FOURIE AJ
ACTING JUDGE OF HIGH COURT, MIDDELBURG
Counsel for the Applicants: Adv RA Britz
Instructed by: BFJ van Zyl Attorneys
Counsel for the First Respondent: Adv J Schoeman
Instructed by: LVP Attorneys and Associates Inc
Judgment reserved on: 5 May 2026
Date of delivery: 7 May 2026
______________________________________________________________
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[1] Grobler v Master of the High Court and Others [2019] ZASCA 119
(23 September 2019) at para 17
[2] Grobler supra at paragraph 30
[3] See Letsekga v The Master and Others 1995 (4) SA 731 (W) at 735 C-G
See also Anderson & Wagener NNO and Another v The Master and Others
1996 (3) SA 779 (C) [1996] 1 All SA 637 at 784G - 785H
[4] Bekker v Naude 2003 (5) SA 173 (SCA)
[5] Electronic Communications and Transition Act 25 of 2002
[6] Mokgoro and Others v Master of the High Court, Kimberly and Others (09 -
25) [2025] ZANCHC 60 (1 August 2005)