Swaziland: Court of Appeal

HELD AT MBABANE                             Appeal Case No. 32/2001

In the matter between

GABRIEL GERT CORNELIS KEYSER              Appellant

And

GERALD ANTHONY NELSEN JAMES               First Respondent
MASTER OF THE HIGH COURT                           Second Respondent
ATTORNEY GENERAL OF SWAZILAND    Third Respondent
ANNA CATHARINA KEYSER                      Fourth Respondent

Coram                                                          LEON, JP
                                                                        STEYN, JA
                                                                        ZIETSMAN, JA                      

For Appellant                                                 MR. SMITH, S.C.
For the First Respondent                                             MR. WISE, S.C.

The appellant was the unsuccessful 2^nd respondent in the Court a quo in an application in which the present first respondent (then the applicant) brought an urgent application in the High Court seeking a rule nisi against the appellant, the Master of the High Court and the Attorney General calling upon them to show cause :-

That the Master of the High Court of Swaziland be directed to hand over the Will of the late Elfreda Mary Boyder dated 23^rd August 1999 to applicant’s attorneys within seven days of the granting of this order;

………………………………………………………………………

4.       That this Honourable Court make a determination of the validity or otherwise of the Will of Elfreda Mary Boyder dated 23^rd August 1999.”

Neither the Master of the High Court nor the Attorney General opposed the application. They take no part in this appeal, neither does the 4^th respondent do so.


The matter then came before the High Court where the applicant and the second respondent’s legal representative sought and obtained on the 10^th January 2000 an order by consent. Leaving aside procedural matters, the material provisions of the consent order read as follows:-

2.1     

It is common cause that, consequent upon the above consent order, Peter Horley examined the two wills and concluded that the signature of the testator on both wills had not been forged. A further report was sought from him as to whether:-

1.      

“The two signatures appear to be much the same as each other. The printing of the name in capital letters appears more confident and less tremulous in the later Will suggesting it was made prior to the first Will but this may be due to other causes……..

The witnesses’ signatures might have been made by the same person……………………………..

Unfortunately however all the above cannot lead to a conclusion of mutual authorship as all may be coincidental. No direct letter comparison can be made. Mutual authorship is possible.”

Thereafter the parties agreed that the two experts Messrs Horley and Bam should meet in order to produce a minute reflecting these points of agreement and disagreement. Consequent upon that agreement the experts signed a minute on the 1^st June 2001. Paragraph 1 and 4 of the minutes of that meeting read as follows:-

Both have investigated the signature of the deceased on her will dated 23 August 1999 and both find it to be her genuine signature.

Both agree that it is not forensically possible to ascertain whether the will dated the 23^rd of August 1999 is authentic or not, save for the agreement contained in numbered paragraph 1 above”

such signature is made by the testator………………….in the presence of two or more competent witnesses present at the same time; and
(c)      such witnesses attest and sign the will in the presence of the testator and of each other and………………………..
(d)      ………………………………………………………………..”

The learned Chief Justice said this of these provisions:-

In reaching the above conclusion the Court a quo rejected the argument of the appellant based upon KUNZ v SWART and OTHERS 1924 AD 618 that where a will is complete and regular on the face of it the onus is upon the party impugning the will to prove that the requisite formalities were not complied with. In rejecting that argument the learned Chief Justice stated that he had considered the judgments in that case (all three judges gave separate judgments and the decision was a majority decision) but “cannot find anything which can override the effect of the legislation which governs.”


It was common cause between counsel in argument before us that the questions which arise in this appeal are:-

1.      

Is the later will complete and regular on the face of it and, if so,
2.       on whom does the onus of proof lie.

It is necessary to decide the first point because if the will is not complete and regular on the face of it the appeal must inevitably fail. If it is, then it will be necessary to decide the question of onus.


With regard to the question of onus both counsel were agreed that there is an irreconcilable dispute of fact on the papers. Mr. Smith, for the appellant, asked us to order, if the appeal succeeds, - in the sense that it is held that the will is complete and regular on the face of it - that the matter be referred back to the Court a quo to hear evidence. Mr. Wise, for the respondent, for his part conceded that if the Court a quo was wrong on the question of onus the case had to be referred back for evidence to be heard.


It follows therefore that the first question to be answered is the following:-


“Are the wills complete and regular on the face of them?” In casu only the validity of the later will is in issue, and the question is whether that will is complete and regular on the face of it.

Counsel for the appellant contended that it is. In doing so it was his submission that it was signed by the testatrix; two “signatures” of witnesses appear on the face of the single page will. It also contains an attestation clause which alleges that the will was signed in the presence of the witnesses, “all being present at the same time”. The fact therefore that ex facie the will it was both “complete and regular on the face of it” meant that no evidential burden rested on the appellant to prove that the will was validly executed. The onus, so it was contended, rested on the respondent to disprove the validity of the will and in view of the fact that the evidence tendered by and on behalf of the respondent was disputed in material respects, the matter had to be referred to trial for a resolution of such disputes.

Now regularity is a different thing from validity. The Act (the Bills of Exchange Act) itself makes a careful distinction between them. On the one hand, an endorsement which is quite invalid may be regular on the face of it. Thus the endorsement might be forged or unauthorised, and, therefore, invalid under S.24 of the Act, but nevertheless, there may be nothing about it to give rise to any suspicion. The bill is then quite regular on the face of it.”

“Once regularity is seen to differ both from validity and from liability, the question is: when is an endorsement irregular? The answer is, I think, that it is irregular whenever it is such as to give rise to doubt whether it is the endorsement of the named payee. A bill of exchange (and we interpose, a will) is like currency. It should be above suspicion.”(own emphasis.)

See also Estate Ismail v Barclays Bank 1957(4) SA 17(T).

The legislative provisions governing the regulation of Bills of Exchange on the one hand and wills on the other differ in material respects. However in both cases the issue as to whether the instrument is complete and regular on the face of it arises. The test as to whether a will complies with this prescription appears to us to be analogous to that formulated by Denning L.J. in the ARAB BANK case. A will may be regular on the face of it and still be found to be invalid. Thus e.g. evidence may be tendered that makes it clear that it was a forgery or that, despite an attestation, there had been a failure to comply with the legislative provisions concerning the presence of both witnesses when the will was signed by the testator.

Per contra; the will may not be regular on the face of it yet valid, because despite what may appear to be a defect on the face of the instrument, evidence may establish that such defect was indeed only apparent and not real.

The key issue is, when is it complete and regular on the face of it? As Denning L.J. puts it “when there is nothing about it to give rise to any suspicion,” and “………(it) is like currency. It should be above suspicion.” See also the meaning ascribed to the word “regular” in the shorter Oxford Dictionary, i.e. “properly constituted; normal.”

For a decision in which it was held that a will was not complete and regular on the face of it, see Ex Parte Ford and Langham 1953(4) 338(N) at 343 where the learned Judge points to the fact that although the wills in question “were in form, wills complete and regular on the face of them” anyone perusing the documents would be put on enquiry whether the document was really a will. The learned Judge then concluded on this issue as follows:-

         (own emphasis)

It is the test as formulated by Denning L.J. which we have to apply to the will in question. In doing so we have to bear in mind that we must not open the floodgates for an avalanche of challenges to wills that may demonstrate an unusual feature. Thus, e.g., although it would always be prudent to print the name of a witness below an illegible signature, provided that it is what it purports to be, i.e. a genuine signature, the fact that it might not be readily decipherable would not, depending on the circumstances, necessarily render the will irregular on the face of it.

“…………… the requirement for signatures of witnesses to a will provided a main safeguard against the perpetration of frauds, uncertainty and speculation; disputes regarding the validity of a will could arise only after the death of a testator, which might occur many years after it was executed and, ordinarily, the only persons other than the testator who would be likely to have knowledge of the circumstances of the execution of a will would be the witnesses who, having been present, had personally seen or perceived it, and could testify in that regard. That purpose would fail when the witnesses could not be identified and it might be impossible to identify a witness who had signed by initials only.”

                                                                       

It is clear that in South Africa there have been a large number of decisions commencing with KUNZ vs SWART AND OTHERS, cited above, that have laid down the principle that once it has been established that a will is complete and regular on the face of it, the evidential burden rests on the party challenging the validity of the will. The majority judgment in KUNZ’S case has been followed inter alia in TREGEA AND ANOTHER v GODART AND ANOTHER 1939 A.D. 16. THAKER AND OTHERS v NARAN AND ANOTHER (Supra); MELVILLE AND ANOTHER N.N.O. v THE MASTER AND OTHERS 1984(3) SA 337 ; BOWES v FRIEDLANDER N.O. AND OTHERS , 1982 (2) SA 505 , and SHERBAN v DIXON AND OTHERS 1968(1) SA 322 .

In addition to the fact that the Court found in the KUNZ case that the
will in casu was complete and regular on the face of it, the majority judgment in the KUNZ case is clearly distinguishable from the present case on a number of grounds. The action was brought on the ground that the signatures of the testator were forgeries. As SOLOMON JA at p651 in fine – 652 says:

“But apart from any presumption the general rule of law is that he who makes an affirmation is bound to prove it. When a plaintiff, therefore, alleges that the signatures to a will have been forged, one would naturally infer that the onus is on him to prove his allegation”.

He proceeds to say at p. 681:

“The will on the face of it is found to be in order. It is extrinsically in conformity with the requirements of the law. It purports to be duly signed by the testator and two witnesses, and on investigation it bears no sign of any flaw.” (emphasis added.)

This is to be contrasted with the will in casu.

As indicated above, appellant’s counsel has conceded, in our view perfectly correctly, that, should we find that the will is not complete and regular on the face of it, the appellant would not be able to prove that the requirements of the Wills Act had been complied with. The “witnesses” to the will could not be identified. Neither they (if they existed) or anyone else could testify that the will was a legally executed will. The circumstances in which the will was produced also were such so as to preclude any corroborative evidence of their presence when the will was signed being produced.

For these reasons the appeal must fail and is dismissed with costs.

                                                                                 R.N. LEON, JP

         J.H. STEYN, JA


         N.W. ZIETSMAN, JA