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THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, BHISHO)

                                                                                                            Case No: 809/17

In the matter between:

LONWABO MLATSHA                                                      Applicant

and

TOBEKA MSWELI                                                            First Respondent

MASTER OF THE HIGH COURT

BHISHO                                                                              Second Respondent

JUDGMENT

TOKOTA J:

[1]        The applicant seeks an order that:  (a) the last Will of the deceased Norityi Emma Mlatsha be declared invalid; (b) the appointment of an executor in terms of the Will be set aside and costs of the application. The first respondent opposes the application and the second respondent has decided to abide the decision of this court.

[2]        The applicant is the step-son of the deceased. The first respondent is not related to the deceased but has been appointed as the executor of the deceased estate and the beneficiary thereof in terms of the impugned Will.

[3]        The impugned Will spears to have been executed on 11 February 2015 in the presence of two witnesses who signed as such. On the face of the impugned Will the deceased affixed her signature by way of a thumb print on each page of the Will. She bequeathed her house situated at 1217 Buchanna Street, Ginsburg King Williamstown to the first respondent. The impugned Will was submitted to the second respondent who, on 20 May 2015, accepted it and issued the first respondent with the letters of executorship with authority to administer the deceased’s estate .

[3]        The challenge on the validity of the impugned Will is based on two grounds. First, it is alleged that the said Will is invalid by reason of the fact that there are dissimilarities on signatures of the deceased. It is accordingly argued that on this ground the deceased was unwilling to execute the Will and was apparently coerced to sign. Second, it is argued that the Will does not comply with Section 2(1)(a)(v) of the Wills Act 7 of 1953 ('the Act') in that the Commissioner of Oaths has not  attached a certificate to the Will, in which he certifies that he was satisfied as to the identity of the testatrix, and that the Will was indeed her Will.

[3]        Ms Mitchell who appeared for the first respondent argued that the Will is valid. She contended that the deceased signed the will twice by means of a signature and a thumb print. She contended that the affixing of a thumb print was redundant as the testatrix had already appended her signature by means of an inscription. This argument is problematic.

[4]        Ex facie the impugned Will it was signed on 11 February 2015. The deceased died on 22 February 2015. There are three possibilities. First, the deceased could have been taken to an attorney whilst she was seriously ill to the extent that she could not sign properly. She then attempted to sign the Will but was unable to do so properly and, for this reason, it was decided that she should affix her thumb print. Second, the marks to which Ms Mitchell refers to as signatures were placed by somebody else to witness that it was her thumb print that was affixed. The Commissioner of Oaths has also put initials next to the thumb print. Third, possibility also exists that it was not the deceased who made the Will hence the Commissioner of Oaths did not sign a certificate of identification of the testator as required by section 2(1)(a)(v) of the Wills Act. The section requires that      “if the will is signed by the testator by the making of a mark or by some other person in the presence and by the direction of the testator, a commissioner of oaths certifies that he has 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...”

The Commissioner of Oaths did not sign any certificate as envisaged in this sub-section.

[5]        The impugned Will consists of two pages. On the first page there are two “signatures” besides the thumb print and on the next page there is one “signature” besides the thumb print. There is no evidence that the first respondent was present when the impugned Will was executed. Her allegations that there are two signatures is hearsay and therefore inadmissible.

[6]        None of the parties saw it fit to request any of the witnesses to depose to an affidavit. The witnesses’ addresses are clearly stated in the impugned Will. It would not be difficult to find them at all. The first respondent is conflicted in the matter. According to the impugned Will she is the beneficiary and at the same time she is the executor.

[7]        Therefore on the face of it, the impugned Will does not comply with the formalities prescribed by the Act. These formalities are peremptory. Once the testator signs by means of a mark or thumb print an identification of the testator by the Commissioner of Oaths is necessary. The purpose thereof is obvious.

[8]        In Mlanda v Mhlaba and Others  2016 (4) SA 311 (ECG) para.11 Pickering J delivering the judgment of the full court said:

“In the matter of In re Jennett NO  1976 (1) SA 580 (A) it was stated that the primary object of the formalities prescribed by s 2(1)(a)(v) was to secure evidence to establish the identity of the testator and to ensure that the document signed by the making of a mark is indeed the will of the testator. It was stated that this object can be achieved without using the ipsissimaverba of the section. At page 583F – H Galgut AJA stated as follows:

'In Ex parteSuknanan and Another,  1959 (2) SA 189 (N) at p 191, Broome JP said:

"The reason for the certificate required by para (v) is, because a testator who signs by making the mark is probably illiterate, to ensure that he is the person who, by making the mark, he purports to be, and that the document is his will.”

Therefore the affixing of a thumb print is an indication that the testator is illiterate. This therefore is inconsistent with the argument advanced by the first respondent that the testator signed twice.

[9]        Section 2(3) of the Act provides that if a court is satisfied that a document signed by the testator was intended to be his/her will, the court shall order the Master to accept that document, for the purposes of the Administration of Estates Act, as a will, even though it does not comply with all the formalities for the execution referred to in subsection (1).

[10]      Although the court is entitled to interpret the Will in such a manner as to reflect the wishes of the deceased we are here not concerned about the language used by the testator but we are concerned with compliance with the prescribed formalities in terms of the Wills Act. The contention raised by the applicant that the deceased was unwilling to sign the Will is also speculative but cannot be ignored in the light of the confusion on testator’s signatures.

[11]      If regard is had to the present matter a signature purporting to be that of the Commissioner of Oaths appears on the second page of the impugned Will. There is no indication as to whether the Commissioner of Oaths identified the testator and satisfied himself/herself that the signature appearing there was that of the testator. All what is stated there is: “SIGNED AT KING WILLIAMSTOWN ON THE 11^TH DAY OF FEBRUARY 2015, IN THE PRESENCE OF THE UNDERSIGNED WITNESSES ALL BEING PRESENT AT THE SAME TIME.”

[12]      I am of the opinion that the question of whether this is indeed the last Will of the deceased needs further investigation. In my view justice will be served if the true position is ascertained. This can only be ascertained by referring this matter for oral evidence where the witnesses who signed the impugned Will can clarify the position regarding signatures and identification of the testator. They will be in a position to explain whether the testator signed twice and, if so, why.

[13]      In the circumstances I make the following order:

1.  The application is referred for the hearing of oral evidence, at a   time and on a date to be allocated by the registrar, on the following    questions:

1.1  Whether the testator signed by means of a mark or    thumb print;

1.2  Whether the testator signed the Will twice and, if so,   why;

2.   The evidence shall be that of any witness whom the parties or  either of them may elect to call, subject, however, to what is provided in para 3, infra;

3.   Save in the case of any deponent to any affidavit in the application,   neither party shall be entitled to call any witness unless:

3.1  it has served on the other party at least 15 days before the date appointed for the hearing (in the case of a witness to be called by the applicant) and at least 10   days before such date (in the case of a witness to be called by the respondent), a statement wherein the evidence to be given in chief by such person is set out; or

3.2  the court, at the hearing, permits such person to be called despite the fact that no such statement has been so served in respect of his evidence;

4.  Any person may be subpoenaed to give evidence at the hearing,     whether such person has consented to furnish a statement or not;

5.  The fact that a party has served a statement in terms of para 3,   supra, or has subpoenaed a witness, shall not oblige such party to   call the witness concerned;

6.  The provisions of rules 35, 36 and 37 shall apply to the hearing of    oral evidence;

7.  The costs incurred to date are reserved and shall be determined     by the court hearing the oral evidence.

B R TOKOTA

JUDGE OF THE HIGH COURT

I AGREE

S M MFENYANA

ACTING JUDGE OF THE HIGH COURT

Appearance for the applicant:                   In person

Appearance for the first respondent:        N Mitchell

Instructed by Legal Aid of SA

Date Heard    :           5 December 2019.

Date Delivered:        21 January 2020.

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