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
GAUTENG DIVISION, PRETORIA
Case number: 124201/2024
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: Yes
2 September 2026
SIGNATURE
In the matter between:
PATRICIA MMAKWATI RADITHALO Applicant
and
THE MASTER OF THE HIGH COURT, PRETORIA First Respondent
ABSA TRUST LIMITED Second Respondent
ERNEST THABANG RADITHALO Third Respondent
MASABATA JANE THLAPISO obo LEFIKA TLHAPISO Fourth Respondent
The judgment was prepared and authored by the Judge whose name is reflected
and is handed down electronically by circulation to the parties’ legal representatives
2
by e-mail and uploading it to the electronic file of this matter on Caselines. The date
and time of hand-down is deemed to be 17:00 on 2 September 2026.
3
JUDGMENT
CP Wesley, AJ
[1] This is the judgment in an opposed motion that was argued before me on 4
August 2026, after which I reserved judgment.
[2] The applicant is Ms Patricia Mmakwati Radithalo, to whom I will refer as
“Radithalo”. The first to fourth respondents are, respectively, the Master of
the High Court, Pretoria, Absa Trust Ltd, Mr Ernest Thabang Radithalo, and
Ms Masabata Jane Thlapiso on behalf of Lefika Tlhapiso. I will refer to the
first respondent as the “Master”, to fourth respondent as “Thlapiso”, and to
Lefika Tlhapiso as “Lefika”. When the application was lodged Lefika was a
minor. His mother, Thlapiso, accordingly acted on his behalf when lodging
the application. By the that the application was argued Lefika has attained
the age of majority. Nothing turns on this.
[3] Radithalo applies for an order in terms of section 2(3) of the Wills Act 7 of
1953 (“Wills Act”) declaring that a copy of the last will and testament of the
late Mr David Mathlo Raditlhalo (“deceased”), being annexure “A2” to the
founding affidavit, is the deceased’s last will and testament and that it be
accepted for purposes of the Administration of Estates Act 66 of 1965.
Section 2(3) provides in the applicable part as follows:
“If a court is satisfied that a document … drafted or executed by a person who has
died since the drafting or execution thereof, was intended to be his will …, the court
shall order the Master to accept that document … for the purposes of the
Administration of Estates Act, 1965 … as a will, although it does not comply with all
the formalities for the execution or amendment of wills referred to in [section 2(1) of
the Wills Act].”
4
[4] Section 2(1) of the Wills Act sets out the formal requirements for a valid will.
It is not necessary for purposes of this judgment to repeat these.
[5] Only T hlapiso opposes the application. Her opposition is founded on a
narrow basis, which can be summarised as follows: while she accepts that
annexure “A2” is a copy of the deceased’s last will , the will falls to be
rejected as such because t he deceased failed to amend it to include Lefika
as an heir.
[6] Thlapiso’s answering affidavit was delivered some four months late, and she
accordingly applies for condonation for the late filing thereof. This issue must
be determined first, which I proceed to do.
[7] In Grootboom v National Prosecuting Authority 2014 1 BCLR 65 (CC); 2014
2 SA 68 (CC) the Constitutional Court stated the principles that apply to an
application for condonation such as this in the following terms:
“[20] The respondents were late in filing their answering affidavits as well as
their written submissions. This delay put a serious hurdle in the way of their
quest to be heard in this Court: they had to apply for condonation. It is
axiomatic that condoning a party’s non -compliance with the rules of court
or directions is an indulgence. The court seized with the matter has a
discretion whether to grant condonation.
[21] …
[22] I have read the judgment by my colleague Zondo J. I agree with him that,
based on Brummer and Van Wyk , the standard for considering an
application for condonation is the interests of justice. However, the concept
‘interests of justice is so elastic that it is not capable of precise definition.
As the two cases demonstrate, it includes: the nature of the relief sought;
the extent and cause of the delay; the effect of the delay on the
administration of justice and other litigants; the reasonableness of the
explanation for the delay; the importance of the issue to be raised in the
intended appeal; and the prospects of success. It is crucial to reiterate that
5
both Brummer and Van Wyk emphasise that the ultimate determination of
what is in the interests of justice must reflect due regard to all the relevant
factors but it is not necessarily limited to those mentioned above. The
particular circumstances of each case will determine which of these factors
are relevant.
[23] It is now trite that condonation cannot be had for the mere asking. A party
seeking condonation must make out a case entitling it to the court’s
indulgence. It must show sufficient cause. This requires a party to give a
full explanation for the non -compliance with the rules or court’s directions.
Of great significance, the explanation must be reasonable enough to
excuse the default.”
[7] As succinctly stated in Neutron Energy Africa (Pty) Ltd v Hengyi Electrical
Co Ltd (58561/2021) [2023] ZAGPJHC 1307:
“[26] The test is no more nor less that of justice and equity, that is a question of
fairness to both sides as to whether or not further sets of affidavits should
be permitted. This requires a proper explanation as to why such an
affidavit was required to be filed, and the court must be satisfied that there
is no prejudice in this regard.”
[8] The explanation that is given by Thlapiso in paragraph 6 of the answering
affidavit for why it was delivered late is vague, unconvincing, and supports
none of the factors that ar ise for consideration as per Grootboom above in
an application for condonation. On this basis alone Thlapiso’s application for
condonation for the late filing of the answering affidavit must be refused.
[9] The factor of Thlapiso’s prospects of success in opposing the application
calls for particular consideration. It is evident that Thlapiso does not contest
the validity of annexure “A2” because it is not a copy of the deceased’s last
will, nor because of any non-compliance with any of the formalities set out in
section 2(1) of the Wills Act , nor on any other basis that would disqualify it
section 2(1) of the Wills Act , nor on any other basis that would disqualify it
from being found to be a copy of the deceased’s last will. In the result, the
6
court is driven to find that Thlapiso has no prospects of success in opposing
the application.
[10] It follows that Thlapiso’s application for condonation for the late filing of her
answering affidavit must be refused.
[11] Notwithstanding the foresaid, the court must also find that on the basis of the
considerations taken into account concerning of Thlapiso’s prospects of
success, she has not put up a cognisable defence to the application.
[12] Taking all the facts into account, t he court is of the view that a nnexure “A2”
purports to be a copy of the deceased’s last will and it evidently complies
with the formalities set out in section 2(1) of the Wills Act. The court is
satisfied that the document was intended to be the deceased’s will, within
the ambit of section 2(3) of the Wills Act.
[131] As a general principle the successful party is entitled to costs. 1 There is no
reason why the general principle should be departed from in this matter . In
accordance with Uniform Rule 67A(3)(a), and taking the factors under
67A(3)(b) into account, the costs shall be on Scale B.
[12] In the result, the following order is made:
1. The fourth respondent’s application for condonation for the late
delivery of her answering affidavit is dismissed with costs on a party
and party basis, and on Scale B.
2. It is declared, in terms of section 2(3) of the Wills Act 7 of 1953, that
the document that is annexed to the founding affidavit and marked
annexure “A2” is the last will of the late David Mathlo Radithalo (I D
number 5[...]).
3. The first respondent is ordered to accept the said last will, annexure
“A2” to the founding affidavit, for the purposes of the Administration
1 Fripp v Gibbon & Co 1913 AD 354 at 357.
7
of Estates Act 66 of 1965.
4. The fourth respondent is to pay the applicant’s costs in the application
on a party and party basis, and on Scale B.
_________________________
CP WESLEY, AJ.
Acting Judge of the High Court
Date heard: 4 August 2026.
Judgment date: 2 September 2026.
Appearance:
Applicant:
Counsel: WC Carstens
Instructed by: SNB Attorneys
Fourth Respondent:
Counsel: LR Matshidza
Instructed by: Maraga Attorneys