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[2026] ZAGPPHC 682
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Molapo v Master of the High Court, Pretoria and Others (085950/2023) [2026] ZAGPPHC 682 (8 June 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case No: 085950/2023
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE 8 JUNE 2026
SIGNATURE
In
the matter between:
MPUTSA
ROSE
MOLAPO
Applicant
and
MASTER
OF THE HIGH COURT, PRETORIA
1
st
Respondent
SIMON
MADLENKOSI MNGUNI N. O.
2
nd
Respondent
(In
his capacity as the appointed Executor in the
Deceased
Estate of the Late Julia Thembani Nkosi)
SIMON
MADLENKOSI
MNGUNI
3
rd
Respondent
(In
his personal capacity)
LUCAS
KHEITHI
MNGUNI
4
th
Respondent
BONGANI
RICHARD
MNGUNI
5
th
Respondent
STANDARD
BANK TRUST LIMITED
6
th
Respondent
JUDGMENT
(The
matter was heard in open court on 19 March 2026. Judgment was
reserved and the written judgment was uploaded onto the electronic
file of the matter on CaseLines. The date of uploading of the
judgment onto CaseLines in deemed to be the date of the judgment).
BEFORE:
HOLLAND-MUTER J:
[1]
The application to be adjudicated concerns the validity of a
purported will of the deceased, the late Julia Thembani Nkosi (“the
Deceased”).
[2]
The applicant is Mputsa Rose Molapo, purportedly nominated
beneficiary in the last will of the deceased. Her application is
opposed by the second, third and fourth respondents.
[3]
The applicant moves for relief that the court declare the last Will
of the deceased dated 9 March 2021 valid in terms of
section 2(3)
of
the
Wills Act no 7 of 1953
as amended
(“the Act”)
despite the non-compliance thereof regarding the absence of
the required certificate by the commissioners regarding the signing
thereof in their presence.
[4]
The relief sought is that the court condone the non-compliance supra
of the deceased’s will regarding the absent certificate
that
should be prove of the deceased signing of the will by the deceased
by placing a mark on the will.
[5]
The signing of a will with a mark (thumb print as was the situation
here), is regulated by
section 2(1)(a)(v)
of the Act. The section
requires that: “
a commissioner of oaths certifies that he
satisfied himself as to the identity of the testator and that the
will so signed is the
will of the testator, and each page of the
will, excluding the page on which his certificate appears, is also
signed anywhere on
the page, by the commissioner of oaths who so
certifies: Provided that (aa) the will is signed in the presence of
the commissioner
of oaths in terms of subparagraphs (i), (iii) and
(iv) and the certificate concerned is made as soon as possible after
the will
has been so signed”.
[6]
Section 2(3)
of the Act provides that a court may condone any
non-compliance with the Act
if
the court is satisfied
that the document was executed by a deceased but who has died since
the execution thereof without as in the
present matter, the existence
of the certificate of the commissioner of oaths as required
certifying that the signing of the will
did take place in the
presence of the commissioner. See
Ex Parte Williams Estate: In re
Williams Estate
2000 (4) SA 168
(T) at 179 A.
The court
reaffirmed the sanctity of a testator’s last wishes if clear
from the circumstances.
[7]
This was confirmed by the Supreme Court of Appeal (SCA) in
Van
Wetten & Another v Bosch & Others
2004 (1) SA 348
SCA para
[14]
where it was held “
That
section 2(3)
of the
Wills
Act is
clear: The court must direct the Master to accept the document
in issue as a will once certain requirements are satisfied. First
the
document must have been drafted or executed by a person who has died
and secondly the document must have been intended by the
deceased to
have been his or her will”.
The court may grant condonation
if the requirements referred to in the Act was not complied with
and
the version presented by an applicant must be the reasonable
acceptable version if an opposing version exists. Should two
different
versions be placed before the court, the court, in
following the rugged Plascon-Evans Rule, will accept the most
preferable version
where the versions are mutually destructive.
[8]
In
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A)
it was held that the court will determine whether
a true dispute of facts on affidavit exists that can be determined on
paper or
whether the dispute ought to be referred for oral evidence
if a real dispute of facts exist. Should the court be satisfied that
the dispute can be determined on the affidavits the court will, after
weighing the mutually destructive versions, decide which
version is
the most likely to be accepted.
[9]
With the established rule in mind, the court will approach the two
destructive versions in this matter.
[10]
The second, third and fourth respondents opposes the application
asserting that the application should be dismissed for not
complying
with the requirements under
section 2(1)(a)(v)
of the Act. In
casu
the will was not accompanied by the Commissioner’s
certificate as prescribed. It is further a fact that no such
certificate
as obtained later (or as soon as possible after the will
was signed at all). The later obtained affidavits by the police
officers
and the view of the late obtaining thereof, the court is of
the view that this omission cannot be cured. The reason will follow
below.
[11]
It was argued on behalf of the applicant that the police officers,
not acquainted with the requirements of the Act, did not
know that
the certificate declaring that the will was signed with a thumb print
by the testator must be annexed to the will certifying
it was done in
their presence. This is unlikely to be the case. The police officers’
confirmatory affidavits were only obtained
long after the alleged
signing of the will and only after it was required for the
litigation. It will be discussed below as part
of the improbabilities
of this version.
[12]
It is a fact that the deceased never had children of her own. It is
however also a fact that the two young respondents, Lucas
and Bongani
resided with the deceased at some point and regarded her as the
extended mother.
[13]
The applicant is an employee of Standard Bank, the sixth respondent
in the application. The applicant is employed by the Bank
in its
department that specialises in financial planning and advising
clients on financial issues, a different department than
the
department dealing with wills and trusts. It is reasonable to accept
that she, in view of her appointment, will be aware of
the
requirements regarding completing a will as part of financial
planning for clients.
[14]
The deceased, on the applicant’s version, executed the
purported will dated 9 March 2021 at the bank but it was not signed
at the bank but it was signed at the police in Mamelodi. The deceased
returned the signed will to the bank for safe keeping as
the
nominated executors. It is the version of the applicant that the
deceased completed the will at Standard Bank (most probable
at the
wills department), taken the unsigned will to the police, have it
signed with a mark (and not certified by the commissioner)
and
returned to the wills department at Standard Bank for safe keeping
(as nominated executrix); the question arises that why did
the
trained bank employees not have the mark signing done at the bank
(whose function if is) because of the bank’s appointment
as
executrix. The more probing problem with this version was how did the
applicant know exactly what transpired with the completing
of the
will? It is reasonable to infer that she was most likely the drafter
of the will.
[15]
The version of the applicant fails the test for reasonableness for
the following:
·
Standard Bank as bank of the deceased would have assisted her in the
drafting
and finalisation thereof. It is highly unlikely that, taken
that the Bank is nominated as executor, will assist the deceased to
complete her last will
but
before having it signed and
commissioned, refer her to the police to do the commissioning, only
to accept it later when returned.
If this was true, the employees of
the bank in the will’s department would have noticed the
absence of the certificate and
would have taken steps tp cure the
non-compliance for their client.
·
The complexity of the will justifies the inference that someone in
the Bank
with
knowledge what should be in a will,
assisted or actually drafted the will for the deceased. This would
not have been employees of
the bank in the wills division but someone
with the necessary knowledge and skill.
·
The applicant is employed at the bank in a division where clients are
advised
on financial aspects. She most likely drafted the will for
the deceased and then directed her to have it signed at the police
before
submitting it to the wills department. An outsider would not
have all the information what should be in a will but the applicant
most likely would have.
·
The wills department would not have accepted the signed will without
the certificate
when submitted to them by the deceased after it was
signed.
·
Standard Bank would not have relinquished their appointment if they
were the
original drafters thereof but when requested by the
applicant and informed of the dispute with the Master, relinquished
their appointment.
[16]
The argument on behalf of the applicant regarding the late
registration of the customary union between the deceased and the
third respondent is not convincing. The legislator made it possible
for late registration of customary unions and there is no convincing
evidence swaying the court not to accept the version of the
respondent.
[17]
The applicant admitted that the deceased and the third respondent was
living together at some stage after such lobola negotiations
and that
the fourth and fifth respondents also resided with the deceased and
third respondent earlier. There is no reason why the
court should not
accept the version of the third respondent in this regard. His
version that there was lobola negotiations earlier
with the family of
the deceased is not farfetched nor denied at all. The applicant was
aware of the negotiations.
[18]
The applicant avers that the deceased announced to some relatives
that she (the deceased) was to draft a will with the assistance
of
Standard Bank in which she wanted to bequeath her estate to the
applicant. The deceased made this intention known to the applicant
during March 2021. This intention was also made to some family
members. Although some confirmatory affidavits were annexed, it
is
clear from these affidavits that they are genetic the same, this is
an indication that it was drafted by the same person. A
shadow of
doubt should hang over these affidavits. A red herring is afloat.
[19]
The deceased further informed the applicant that she went to Standard
Bank to assist her whereafter she went to the Mamelodi
Police station
where police officers assisted her with signatures as witnesses. This
was because the deceased signed the will by
a mark and she returned
to Standard Bank with the now signed will for safe keeping, but as
set out above, it casts a doubt over
the truth thereof. Logic
dictates that the designated employees at the bank working with will
would have done everything and not
send the deceased to the police to
have the will signed.
[20]
The deceased passed away on 19 October 2022 and the applicant
informed Standard Bank that she was the next of kin of the deceased
and contact person regarding the will, only to be informed that the
will was already reported by the third respondent. This was
some time
after the deceased died.
[21]
Standard Bank informed the Master of the Pretoria High Court on 18
November 2022 that it renounced its right to act as executor
to the
estate due to cost implications and the size of the estate. The bank
further informed the Master to contact the applicant
and for further
appointment of the executor.
[22]
After hearing nothing from the Master the applicant contacted the
Master on 3 January 2023, only to be informed that the bank
renounced
their appointment as executor of the estate and that the fourth and
fifth respondents as biological sons of the deceased
reported the
estate. This was misleading because the deceased never had any
children of her own. The explanation regarding the
fourth and fifth
respondents as extended family is acceptable.
[23]
Missing from the last will was the certificate by the commissioners
of oath certifying that the testator signed the purported
will in the
presence of the commissioner of oaths. The accepted fact is that
there was never a certificate made by the members
of the Mamelodi
Police when the will was attested to by the deceased in the presence
of the police officers.
[24]
When comparing the two destructive versions with the other, the court
is of the view that the version of the third respondent
is more
likely to be accepted over that of the applicant. The applicant faced
with the burden to prove on a balance of probabilities,
failed to
discharge the burden and did not convince the court to accept her
version in stead of the version of the third respondent.
COSTS:
[25]
Costs is in the discretion of the court. When deciding the issue of
costs, the court will, unless good cause exist not the
follow the
normal rule that costs should follow success, award the successful
party with a cost order in its favour. There is no
reason why this
general rule should not be followed when considering the various
versions.
[26]
There is further no reason to impose a punitive cost order against
the unsuccessful party. When considering imposing a punitive
cost
order, the court will consider the conduct of such a party and only
when the court is of the view that the conduct of a representative
was reprehensible justifying the court to vent its disapproval with
such conduct. See
Taxation of Costs in the Higher and Lower
Courts: A Practical Guide Lexis-Nexis, Albert Kruger and Wilma
Mostert
p 8-9. There is no such conduct present in this matter.
ORDER:
The
application is dismissed with costs on a party and party scale “B”.
HOLLAND-MUTER
J
Judge
of the Pretoria High Court
8
June 2026
Appearances:
Applicant:
Adv N Mohlala
Respondents:
(2
nd,
3
rd
& 4
th
Respondents):
Adv M Sithole
Matter
was heard on 19 March 2026
Judgment
handed down on 8 June 2026