Mavuso v Master of the High Court and Another (4178/2023) [2024] ZAMPMHC 41 (13 August 2024)

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 NO: 4178/2023

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED

DATE: 13/08/2024

SIGNATURE:

In the matter between:

MOSES SIMON MAVUSO

APPLICANT

And

THE MASTER OF THE HIGH COURT

FIRST RESPONDENT

JABULANI MICHEAL MAVUSO

SECOND RESPONDENT

JUDGMENT

Coram: Langa J

Introduction and Facts

[1] This is an application in terms of Section 2(3) of the Wills Act 7 of 1953 (“the Act”), to have the Will of the Late Mr Thomas Mavuso dated 16 February 2016 declared a valid Will and to have the appointment of the Second Respondent in terms of section 18 of the Administration of Estates Act 66 of 1965 declared invalid. The deceased died on 28 July 2021 and the impugned Will was executed on 16 February 2016.

[2] The Applicant and the Second Respondent are siblings and sons of the deceased. The Applicant Moses Simon Mavuso is the father of Blessing Madoda Mavuso who is the beneficiary in terms of the contested Will. The First Respondent is the Master of the High Court, Mbombela, who has filed no notice to oppose. The Second Respondent Jabulani Michael Mavuso N.O. is cited in his capacity as authorised person in terms of the letter of Authority issued by the First Respondent on the 25 March 2022. Only the Second Respondent is opposing the application.

[3] In terms of the contested Will, the deceased left his entire estate to his grandchild, Blessing Madoda Mavuso, the son of the Applicant. The Applicant submitted the Will to the Master of the High Court, who rejected same on the grounds that it does not comply with 2(1)(a)(v) in that although it had been signed by deceased with a mark (or thumb print) there was no accompanying commissioner’s certification. This caused led to the bringing of this application by the Applicant.

[4] The Applicant relies on the affidavits of two witnesses who were apparently present when the Will was executed. He further alleged that the Will was given to a local church pastor by the deceased while he was still alive so that he could make it available to the family after his death. This is however denied by the Second Respondent who contended that the will was only given to the pastor on the morning of the reading thereof by the Applicant’s wife. The Second Respondent is in support of the contention of the First Respondent that the will does not comply with the formal requirements of 2(1)(a)(v). He further most importantly further contended that the purported mark or thumb print attributed to his father is not that of his father.

[5] It is common cause that the deceased Thomas Mavuso owned the property located at 6[…] Q[…] Street, M[…], Extension 4, Middelburg at which he resided with his family. His wife predeceased him during 2011.

[6] The Applicant in his papers avers that he and his family also resided with the deceased at this address. The Applicant and the Second Respondent raised differing versions relating mainly to who cared for the deceased when he was ill. The Applicant averred that the deceased was cared for by him and his family. This is disputed by the Second Respondent who said that it was his other brother Fannie Bednock Mavuso who cared for the deceased and that the Applicant would only assist by transporting them to hospital. The Second Respondent also claims to have been visiting the deceased during his illness together with Fanie Mavuso.

[7] The Applicant further averred that the deceased had the Will drafted and executed at the offices of Wynard Prinsloo and van Eeden Attorneys on 16 February 2016. He stated confirmed that in the will the deceased left the property mentioned in paragraph 5 above to his grandson Blessing Madoda Mavuso. He conceded that the deceased signed the will by making a mark. The Applicant contended that the “signing” of the will was witnessed by two witnesses, one of whom is employed by Wynard Prinsloo and Van Eeden attorneys and the other an old friend of the deceased. The Applicant contended therefore that even though the Second Respondent disputes that the mark as the thumb print of the deceased, the sworn affidavits by these two witnesses confirms this fact.

[8] The Applicant further contended that the deceased handed the Will to his pastor for safe keeping and reading after his passing. Although the original Pastor has also passed away, the will was given to the new pastor Samson Mahlangu, who filed an affidavit in support of the Applicant’s evidence. The Applicant alleges that his other siblings proceeded to obtain a letter of authority from the First Respondent without disclosing the existence of the Will to the Master. A letter of authority was subsequently issued to Jabulani Michael Mavuso. This was followed by the eviction application against the tenants at the property as well as the Applicant and his family.

[9] The Second Respondent further averred that in 2012 the deceased obtained a protection order against the Applicant in the Middelburg

Magistrates Court as the Applicant was emotionally and physically abusive to the deceased. Further, he contended that during November

2012, the deceased deposed to an affidavit in essence stating that he is appointing Fannie Bednock Mavuso to take over the rights of ownership of his house when he dies. He further directed in the affidavit that the house should serve as the Mavuso family home and Fannie Mavuso shall be in control and ensure that the house is not sold by any of his children.

[10] The Second Respondent stated further that although Fannie left the house in 2013, his sisters, Thoko and Lucy remained there until 2016 when the Applicant apparently made their life unbearable. The Applicant denied this and averred that his sisters were causing trouble by producing and selling homebrew beer which attracted unsavoury characters. The Second Respondent alleged further that during 2016, the Applicant started developing the property by building flats at the back of the main house. He leased these to tenants. He suggests that by so doing, the Applicant had a direct and material interest in the property from which it is evident he intended to benefit eventually.

[11] The Second Respondent alleged further that on the day the impugned Will was read during July 2021, the Applicant’s wife was seen going to St Peters Church to deliver it to pastor Mahlangu’s house in a brown envelope. The Second Respondent further contended that one of the witnesses who deposed to a confirmatory affidavit that the contested will was “marked” by their late father, Mr Matshika, was in fact not a friend of their father as alleged by the Applicant but was just a client to whom their deceased father sold home-made brew.

[12] The Second Respondent further challenged the confirmatory affidavit by one of the witnesses who was allegedly present when the Will was signed one Ms LP Mokoena. He essentially contended that the confirmatory affidavit does not confirm whether it was affirmed or swore to and further does not reflect the designation of the Commissioner of oaths.

Issues for determination

[13] It is clear from the parties’ contentions that this court is called upon to determine firstly, whether the contested Will constitutes the Last Will and Testament of the deceased Thomas Mavuso. Secondly, a determination must be made whether the Will’s conceded noncompliance with section 2(1)(a)(v) should be condoned given that it was signed by a mark or thumbprint and has not been certified by a commissioner of oaths as required by the subsection.

Discussion

[14] All the allegations and counter allegations aside, this matter clearly turns on the validity of the Will purportedly made by the deceased on 16 February 2016. It is trite that for a Will to be valid it must comply with the requirements set out in section 2 of the Act. It must therefore be in writing (document), and it must have been drafted or executed by the deceased testator who must have intended it to be his final Will. Ex Parte Williams: In re Williams’ Estate 2000 (4) SA 168 (T).

[15] Section 2 of the Act dealing with the formalities of a Will and the relevant subsections read as follows:

Section 2(1)(a) – Subject to the provisions of section 3bis no will executed on or after the first day of January 1954, shall be valid unless-

(i) The will is signed at the end thereof by the testator or by some other person in his presence and by his direction; and

(ii) Such a signature is made by the testator or by such a person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and

(iii) Such witnesses attest and sign the will in the presence of the testator and of each other and, if the will is signed by such other person, in the presence also of such other person; and

(iv) …

(v) 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 that 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:…” (my emphasis)

[16] It is common cause that the impugned Will consists of a written document which has been signed by the testator and witnessed to by at least two witnesses. The problem with this Will is that the testator signed it by using a mark or thumb print. Since the signature is in the form of a mark or thumbprint, subsection 2(1)(a)(v) of Act kicks in.

[17] Section 2(1)(a)(v) essentially provides that where the testator has signed the will by using a mark, or in this case a thumb print, a commissioner of oaths must certify that he has satisfied himself as to the identity of the testator and that the will so signed is the will of the testator. He or she must further certify that each page of the will, excluding the page on which his certificate appears, is also signed by him or her.

[18] It is trite that the reason for the certification required subsection 2(1)(a)(v) is to ensure that in instances where for instance an illiterate testator signs by making the mark, there is evidence that he is the person who he purports to be and that the document is his Will. Ex Parte Suknanan and Another 1959 (2) SA 189. In the often-quoted matter of In Re Jennet NO 1976 (1) SA 580 (A), the Appellate Division, as it then was, held that the primary object of the formalities prescribed by section 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.

[19] It is common cause in this case that the section 2(1)(a)(v) certification by a commissioner of oaths was necessary and was not done. As a result, when the Will was presented to the First Respondent, he correctly rejected it on the basis that it does not comply with section 2(1)(a)(v). It is clear that absent the certification of the will by a commissioner of oaths, the First Respondent’s decision to reject the Will due to non-compliance with section 2(1)(a)(v) cannot be faulted. Even the affidavits by witnesses relied on by the Applicant cannot render the Will compliant with this section.

[20] In essence the Applicant does not challenge the decision of the First Respondent but relies on section 2(3) as appears from prayer 1 of the notice of motion. In this prayer the Applicant seeks an order that the First Respondent be ordered to accept the will in terms of section 2(3). This brings into play section 2(3) of the Act and the court is therefore called upon to determine whether the noncompliance, which is now common cause, should be condoned. Section 2(3) reads a s follows:

Section 2(3) : “If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965 (Act no 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in Subsection (1).”

[21] From the reading of this section it clearly provides for condonation where the formalities of section 2(1) have not been complied with. In this case the relevant subsection is 2(1)(a)(v), the purpose of which is to curb the proliferation of false and forged wills. Subsection 2(1)(a)(v) therefore constitutes a safety mechanism to secure evidence to establish the identity of the testator and that the document signed the making of a mark is the last Will of the testator.

[22] In terms thereof, a court must accordingly order the acceptance of a non-compliant Will buy the Master once it is satisfied that the Will was drafted or executed by the deceased who intended it to be his last Will. The Applicant therefore understandably argued that the court must order the First Respondent to accept the will on the basis of this subsection. The Applicant argued that it is through no fault of the deceased that the required certification was not done as required by the section and that this will prejudice the beneficiaries of his will.

[23] At this point it behoves this court to closely consider and examine the impugned Will to first determine whether it was made by the deceased and secondly, whether it was intended to be his will. The Second Respondent basically just disputes the thumb print as being that of the deceased. He further questions the validity of the affidavit made by one of the witnesses to the Will, Ms LP Mokoena in confirmation of the deceased’s signature or mark.

[24] Concerning the thumb print, the Second Respondent’s allegation that the thumb print is not that of the deceased constitutes a bald allegation and is not supported by any evidence. He does not deny that this is how the deceased signed documents in his life as can also be seen from the affidavit that the Second Respondent is relying on in which the deceased used the same method to sign. The Second Respondent simply baldly denies that this thumb print is that of the deceased without providing any expert or other evidence to support this allegation. The denial is made despite the fact that there are two witnesses who confirm that the deceased made the mark in their presence.

[25] The two witnesses who have deposed to affidavits that the mark was made by the deceased are Mr SM Matshika and Ms LP Mokoena. Regarding Mr Matshika’s involvement, the Second Respondent simply said he was not the deceased’s friend without challenging his evidence. I must pause here to state that there is no requirement that the witnesses must be related to the deceased. Any person, including a non-relative can be asked by a testator to witness the signing of a will. In my view nothing turns on the challenge to Mr Mashika’s competence to witnesses the will.

[26] However, as stated above, the Second Respondent is also challenging the validity of the affidavit made by Ms LP Mokoena and contended that it does not comply with Regulation 4(2) of the Regulations Governing the Administration of an oath or affirmation as promulgated in terms of section 10 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963. Firstly, it is challenged on the basis that the designation of the commissioner of oaths is not indicated thereon and secondly, that it is not indicated whether it was affirmed or sworn to by the deponent.

[27] Concerning the objection that the affidavit is fatally defective as it is not indicated therein what the designation of the commissioner of oaths is, it is clear that this argument loses sight of the difference between ex officio commissioners and commissioners directly appointed by the Minister of Justice or his/her delegated official. In the case of commissioners appointed by the Minister, it is clearly not necessary to put the designation since the commissioner is not acting in that capacity ex officio. In this case the commissioner of oaths, Janine Hanekom, is acting as such on the basis of a direct appointment and has also clearly stated her date of appointment as commissioner of oaths at the bottom of her stamp as 04 April 2022. This objection to the affidavit is therefore of no moment and must fail.

[28] Concerning the second objection, it is indeed correct that the commissioner of oath did not make the necessary deletion and therefore failed to indicate whether the deponent took an oath or affirmation. While this is the case, the question that remains to be decided is whether the affidavit is substantially compliant or is fatally defective on the basis of this omission.

[29] It is settled law that the question whether there has been substantial compliance with the regulations must be decided on the facts of the individual case. It is trite that a court has a discretion on this matter. Thus, as much as the court has the discretion to refuse a noncompliant affidavit as was the case in Absa Bank v Botha NO 2013 (5) SA 563, the court equally has the discretion to condone the noncompliance as evinced in other cases such as Cibi and Others v The Public Service Commission and Others (3703/2019) [2022] ZAECMKHC 44 (28 July 2022).

[30] In this case from the mere reading thereof it is clear from the document that it is intended to be and is an affidavit. Apart from the omission relied on by the Second Respondent, there is no evidence that the affidavit was not commissioned properly. Contrary to what is contended by the Second Respondent, the affidavit was attested to by a duly appointed commissioner of oaths. In the absence of evidence to the contrary, I accept that the commissioner of oaths substantially complied with the regulations when she attested to the affidavit. Accordingly, the point in limine regarding the affidavit must fail.

[31] I accordingly satisfied that based on the two affidavits by Mr Matshika and Ms Mokoena, the mark or thumb print represent the signature of the deceased on the Will. I am accordingly satisfied that the Will was signed by the deceased. Having made this determination, I now have to consider whether the contested Will was intended to be the Final Will of the deceased.

[32] With regards to the determination of the intention of the testator, it is trite that the document and the context of the surrounding circumstances must be taken into account. In Van Wetten v Bosch 2004 (1) 348 SCA para 16, the Supreme Court of Appeal held as follows:

“In my view, however, the real question to be addressed at this stage is not what the document means, but whether the deceased intended it to be his will at all. That enquiry of necessity entails an examination of the document itself and also of the document in the context of the surrounding circumstances.”

[33] I am of the view that the contents of the Will are just as important in this determination as the context. Concerning the content, it should be pointed out that the document, which is in Afrikaans, is titled LAASTE WIL EN TESTAMENT VAN THOMAS MAVUSO. The uncontested

translation to English is the Last Will and Testament of Thomas Mavuso. Although one can argue that this is a standard wording used in such documents, one cannot ignore that the words describe what it is. Clearly from the wording of the document the deceased was drafting his last Will. Further evidence of what the deceased intended can be deduced from the contents. The deceased sets out in this document how his property is to be dealt with after his death. He specifically appoints BLESSING MADODA MAVUSO as the heir of his whole estate. He ends the document by stating that his wish and request is to be buried with his late wife. There can be no doubt that this is a will, and the deceased intended it to be his last will.

[34] In contesting the Will, the Second Respondent relied on an affidavit made by the deceased about 4 years prior to the making of the Will in which he stated that he appoints his son FANNIE BEDNOCK MAVUSO to take over the ownership of his house on behalf of the family after his death. Based on this affidavit the Second Respondent contended that it could not therefore have been his intention to later bequeath his entire estate to his grandson. He argued that the deceased had an acrimonious relationship with the Applicant, the heir’s father and that the deceased could therefore not have appointed his son an heir to his estate.

[35] With due respect, this argument by the Second Respondent does not hold any water. Firstly, the fact that the deceased had expressed a different intention prior to the making of the Will does not constitute conclusive evidence that what is now expressed in the Will is incorrect. This is so because it is accepted that a testator is entitled to change his/her will at any time before his/her death. So even if it is accepted that he had previously said that the house must be under the control of his other son Bednock Mavuso, his bequeath in a will cannot be rejected because of that reason. This would be the case even where he had appointed Fannie Mavuso in a will but later changed it. A testator is in law to change his will at any time as he wishes.

[36] Secondly, in the Will the bequeath is not made to the Applicant but to his son. The argument that the deceased had a tumultuous relationship with the Applicant cannot therefore be used to challenge the Will. The Applicant clearly does not stand to directly benefit from the bequeathment. Only his son is named as the heir. However, even if the bequeath had been made in favour of the Applicant, their previous acrimonious relationship would not be a sufficient reason to reject the Will unless it is proved that it was not the intention of the deceased.

[37] Therefore, the fact that the Applicant had a tumultuous relationship with the deceased and that the deceased expressed a desire, four years earlier, that Fannie Bednock Mavuso should take over the rights of ownership in the property does not constitute sufficient grounds to reject the Will. Likewise, the fact that the Applicant and his family may have a direct and substantial interest in the property is not sufficient to negate the intention of the deceased as reflected in the Will.

[38] Furthermore, and most significantly, there is no suggestion that the deceased was not of a sound and sober mind at any stage before he made the Will or when he made it. There is further no suggestion that he could have been influenced or coerced to make the Will. Although the Second Respondent challenges the fact that Ms Mokoena worked for a firm of attorneys where the Will was allegedly made, it is however, not denied that the Will was made and drafted at the office of the firm of attorneys as alleged in the papers. In these circumstances it is inconceivable that the deceased could have been influenced or coerced to make the will. In any event the Second Respondent is not alleging that the deceased was influenced.

[39] It is evident that the Second Respondent simply denied that the deceased made the Will. He does not pointedly deny the contents thereof. I find that in the absence of tangible evidence to counter that of Mr Matshika and Ms Mokoena, the Second Respondent’s claim should be rejected. From the reading thereof it has to be accepted that the Will reflects the deceased’s intention as to how his estate should devolve upon his death.

[40] Lastly, in the light of the above, the contention by the Second Respondent that there is a material dispute of fact regarding the mark on deceased’s will and whether it truly expresses his last wishes is not sustainable. Apart from simply and baldly denying that the Will was made by the deceased, the Second Respondent did not provide any evidence in support of this allegation. It is trite that a dispute of fact can only exist where the court is satisfied that the party who purports to raise the dispute has, in his affidavit, seriously addressed the fact said to be disputed. In this case the Second Respondent has failed to present any evidence to anchor this averment. I therefore conclude that there is no genuine dispute of fact on this aspect.

[41] I now turn to the question whether the First Respondent should be ordered to accept the Will in the circumstances outlined above. In Van Der Merwe v Master of the High Court 2010 (6) SA 544, the Supreme Court of Appeal stated the following in respect of a similar matter such as the one in casu:

“By enacting s2(3) of the Act the Legislature was intent on ensuring that the failure to comply with the formalities prescribed by the Act should not frustrate or defeat the genuine intention of testators. It has rightly and repeatedly been said that once a court is satisfied that the document concerned meets the requirements of the subsection, a court has no discretion whether or not to grant an order envisaged therein. In other words, the provisions of section 2(3) are peremptory once the jurisdictional factors have been satisfied.”

[42] As has already determined that the evidence proves that the mark or thumb print on the impugned Will was made by the deceased, the court is accordingly satisfied that the document represents the last Will of the deceased. Having been satisfied that the document represents the last will of the deceased, this court, in the light of section 2(3), has no discretion but to grant the condonation. In the result the condonation for the non-compliance of the Will with the formalities prescribed by section 2(1)(a)(v) of the Act should be granted. I therefore declare this document as the last Will and Testament of the deceased Thomas Mavuso. The Master of the High Court should therefore be ordered to accept it as such.

Costs

[43] Concerning costs, the general rule is that costs follow the result. I do not find any reason in this matter justifying deviation from this rule and the costs must consequently be awarded to the Applicant.

Order

[44] In the result, I make the following order:

1. The point in limine raised by the Second Respondent is dismissed;

2. The failure of the deceased to comply with the formalities set out in section 2(1)(a)(v) of the Wills Act 7of 1953 is hereby condoned;

3. The Will made and signed by the deceased Thomas Mavuso on 16 February 2016 is declared the Last Will and Testament of the deceased;

4. The First Respondent is directed to withdraw the letter of authority dated 25 March 2022 issued Jabulani Michael Mavuso;

5. The First Respondent is further ordered to accept the Will as the Last Will and Testament of the deceased Thomas Mavuso;

6. The Second Respondent is ordered to pay the costs of the application on a party and party scale.

MBG LANGA

JUDGE OF THE HIGH COURT

Appearances: For the Applicants: Mr D Giebler For the Respondent: Advocate FC Lamprecht Date heard: 17 May 2024 Date delivered: 13 August 2024

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date for hand-down is deemed to be the 13 August 2024 at 10h00.