Smith v Master of the High Court, Mahikeng and Others (M744/21) [2023] ZANWHC 113 (26 July 2023)

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

NORTH WEST DIVISION - MAHIKENG

CASE NO: M744/21

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between:

SIMONE SMITH

Applicant

and

MASTER OF HIGH COURT, MAHIKENG

First Respondent

JEAN-CLAUD ERASMUS

Second Respondent

JANE ANN MC CLAREN

Third Respondent

ABRAHAM CAREL GREYLING Fourth Respondent

HENDRICKS JOHANNES LANDMAN Fifth Respondent

JUDGMENT

REDDY AJ

Introduction

[1] The testator Mr. Petrus Imanuel Smith, was diagnosed with terminal throat and oral cancer, having reconciled himself to his inevitable demise, he made a last will and testament dated 12 June 2020. Addendums to his will followed on 16 July 2020 and 26 August 2020. The testator passed away on 19 September 2020. An attempt to

enforce the will of the testator was rejected by the Master of the High Court Mafikeng for want of non-compliance with the peremptory

requirements as dictated to by section 2 of the Wills Act, 7 of 1953, (“the Wills Act” more pertinently section 2(1) (a) (iv). The Master of the High Court is enjoined with this power in terms of section 8(4) of the Administration of Estates Act 66 of 1965 to reject a will if it does not comply with the prescribed formalities as evinced by the Wills Act.

[2] In order to cure this, the applicant who is the biological daughter of the testator sought on motion the following relief:

(i) An order in terms of section 2 (3) of the Wills Act that the First Respondent accept for the purpose of the Administration of Estate Act the last will of Petrus Immanuel Smith dated 12 June 2020 and the addendum thereto dated 16 July 2020, a copy of which is annexed to the founding affidavit, as his valid last will;

(ii) That the Applicant be appointed as the executor of the Estate Late P.I Smith with estate number 6[...];

(iii) That the First Respondent be ordered to issue a letter of executorship within 30 days after the granting of the order in paragraph 2;

(iv) That costs of this application be costs in the estate unless opposed by the Respondents, in which case that costs be granted on aa attorney client scale;

The Parties

[3] A proper introduction of the parties is essential in order to understand the legal nexus that exists amongst them. The applicant is Miss Simone Smith, the biological daughter of the applicant and a nominated beneficiary.

[4] The first respondent is the Master of the High Court, Mahikeng, care of the Office of the State Attorney, Mahikeng.

[5] The second respondent is Mr Jean-Claud Erasmus, an adult male farmer who resides at 1[...] E[...] Street, Stilfontein, North West Province. Mr Erasmus is a nominated beneficiary in the last will which forms the subject of this application and is the biological son of the testator.

[6] The third respondent is Jean Ann Mc Laren, an adult female businesswoman who resides at The Glen, 2[...] T[...] Street, Faerie Glen, Pretoria. Ms Mc Laren is a nominated beneficiary in the last will which forms the subject of this application.

[7] The fourth respondent is Mr Abraham Carel Greyling, an adult male who resides at [...] D[...], P[...] R[...] Street, Westdene, Bloemfontein. This respondent is cited herein due to him being a person with potential substantial interest in the outcome of this application. Mr Greyling alleges that he is the biological child of the testator, a fact which has not been proven. However, should it be established as true, he would become an intestate successor.

[8] The fifth respondent herein is Mr Hendricks Johannes Landman, an adult male accountant, who has his place of business at Shop […], MB Centre, 5[...] J[...] M[...] Street, Middleburg. Mr Landman is the nominated executor of the testator’s estate in the addendum to the will dated 16 July 2020. The fifth respondent seeks to formally repudiate, his appointment.

Background facts

[9] The testator and the third respondent cohabited together since September 2014 until his death. Whilst terminally ill, the third respondent was also the primary care giver of the testator which encompassed his overall care.

[10] During 2020, the testator’s health started to deteriorate rapidly. It was during this time, that the third respondent was requested to assist with the drafting of his will. Not being au fait with the formal process of the drafting of a will, a practical method to assist the testator with this process was devised. The testator verbalized his intentions, which the third respondent then recorded on manuscript. Thereafter, the third respondent typed out what she had recorded. On the same day 12 June 2020, the testator contacted Mr Gert Wessel Grobler (the auditor of the testator) and his wife, Mrs Antonette Grobler, to witness the signing of the testator’s will. The signing of the testator’s will did indeed take place in the presence of Mr and Mrs Grobler and the third respondent.

[11] During July 2020, the testator indicated to the third respondent that the will which he had signed on 12 June 2020, lacked the appointment of an executor. Mr Grobler was contacted by the testator to suggest an apt candidate. The fifth respondent was appointed.

[12] What next occurred is best described by borrowing directly from the third respondent’s affidavit:

“……

5.3. During June 2020 and when the deceased’s health was seriously deteriorating, the deceased asked me to assist with the drafting of a Will. I confirm that I am a layperson in this regard and I have no knowledge of the formalities of a Will as prescribed by the Wills Act 7 of 1953. The deceased dictated the terms of his Will, which I wrote down and thereafter typed on 12 June 2020. I confirm that the Will attached to the founding affidavit marked “SS2” is the Will I typed on 12 June 2020.

5.4. On the same day 12 June 2020, the deceased, made contact with Mr Pieter Gert Wessel Grobler and his wife, Mrs Gretha Antonette

Grobler, who were good friends of the deceased. Mr Grobler is also an auditor and was the deceased auditor. The deceased asked Mr and Mrs Grobler to attend my home in order to witness him signing his Will.

5.5. Mr and Mrs Grobler attended my home with the address set out in paragraph 1.1 supra, on 12 June 2020 and the deceased signed the Will (Annexure “SS2” to the founding affidavit) in the presence of myself and Mr and Mrs Grobler. I was not aware of the fact that it is a requirement for both witnesses to sign on the first page of the Will( where the signature of the testator appears) hence the reason the document is drafted in such a fashion that the second witness, Mrs Grobler, signed on page 2 of the Will.

5.6. During July 2020 it was brought to my attention by the deceased that the Will he executed does not contain a clause whereof an Executor is appointed. The deceased requested Mr Grobler to make a suggestion in respect of a suitable candidate. Mr Grobler suggested that the fifth respondent be appointed as executor.

5.7 On the instruction of the deceased, I proceed to draft addendum to the Will which was sent to Mr Grobler on 15 July 2020. A copy of the email correspondence in this regard is attached hereto marked Annexure “JM1”. On 16 July 2020 Mr and Mrs Grobler (on request of the deceased) attended my home at the address set out in paragraph 1.1 supra in order to witness the deceased signing the addendum (hereinafter referred to as the “first addendum.” The addendum was signed by the deceased and Mr and Mrs Grobler in my presence on 16 July 2020.

5.8. Thereafter and during August 2020, the deceased insisted that the addendum dated 16 July 2020 be amended by insertion of a clause preventing his ex-wife from instituting a claim against his estate.

5.9. On instruction of the deceased, I contacted Mr. Grobler on or about 25 August 2020 and requested that he draft another addendum similar to the first addendum dated 16 July 2020 but with the insertion of another clause (hereinafter referred to as “the second addendum”). On 26 August 2020, Mr Grobler sent the second addendum to me via email and to this effect I attach hereto the email correspondence exchanged between myself and Mr Grobler marked Annexure “JM2.”

5.10. After having received the second addendum from Mr Grobler, the deceased again requested Mr and Mrs Grobler to witness him signing the second addendum. Mr and Mrs Grobler attended my home with address as mentioned in paragraph 1.1 supra on 26 August 2020.

5.11. The Honourable will note that Annexure “SS3” makes reference to a date being 16 July 2020. The only reason being that the second addendum replaced the first addendum and therefore the date of the first addendum was inserted. I confirm that there was no ulterior motive in this regard.

[13] The completed product is what has been regarded by the applicant as the last will and testament of the testator dated 12 June 2020, inclusive of the addendum with both insertions dated 16 July 2020. As anticipated the testator passed away on 19 September 2020. The testator’s estate was duly reported to the first respondent. The first respondent rejected the will of the deceased on the basis that the first page of the will did not comply with the Wills Act, in that the signature of the testator had been witnessed on the first page by a singular witness as opposed to the peremptory two. It was then proposed by the first respondent that the estate of the testator follow the procedure in respect of intestate succession and that the fourth respondent be appointed as executor.

[14] It is against this backdrop that the applicant sought the relief in the notice of motion. The first respondent did not enter the fray. The second respondent and third respondents are not opposed to the relief. The fifth respondent seeks to formally repudiate his appointment as executor.

The fourth respondent’s opposition

[15] The fourth respondent’s answering affidavit was filed out of time. An application of the legal principles akin to condonation, led to this Court, condoning the non-compliance with the Rules of Court by the fourth respondent. Nothing further needs to be said.

The fourth respondent attempted to raise a legal point of the non-joinder of Ms Petra Smith as the surviving spouse of the testator. This point, although subsequently abandoned warrants ventilation, the relevance of which will become apparent herein under.

[16] In City of Johannesburg and Others v South African Local Authorities Pension Fund and Others [2015] ZASCA 4; (2015) 36 ILJ 1439 (SCA), the principles that fall to be applied in an application for joinder and the non-joinder of a party, were reaffirmed as follows:

“As to the relevant principles of law, it has by now become well-established that, in the exercise of its inherent power, a court

will refrain from deciding a dispute unless and until all persons who have a direct and substantial interest in both the subject matter and the outcome of the litigation, have been joined as parties (see e.g. Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 657 and 659; Gordon v Department of Health, KwaZulu-Natal [2008] ZASCA 99; 2008 (6) SA 522 (SCA) para 9). A ‘direct and substantial interest’ is more than a financial interest in the outcome of the litigation. A test often employed to determine whether a particular interest of a third party is the one or the other, is to examine whether a situation could arise in which, because the third party had not been joined, any order the court might make would not be res judicata against that party, entitling him or her to approach the court again concerning the same subject matter and possibly obtain an order irreconcilable with the order made in the first place (see e.g. Amalgamated Engineering Union at 661; Transvaal Agricultural Union v Minister of Agriculture and Land Affairs & others 2005 (4) SA 212 (SCA) paras 64-66).

[17] The point in limine raised by the fourth respondent had no primary facts or legal substratum. The essence of this legal point is that the Ms Petra

Smith is the surviving spouse of the testator. Apart from this bald assertion, no primary facts reinforcing the existence of a union between Ms Petra Smith and the testator have been laid bare before this Court. The absence of documentary evidence affirming, a union which is presented as a fact, is terminal to the point in limine. The proverbial coup de grâce which has been self-inflicted by the fourth respondent is the attachment of the testator’s death certificate which without more records that the testator was divorced as at the date of issue of the abridged death certificate of 15 February 2021.Notwithstanding this legal point having been jettisoned it set the tone of the fourth respondent’s opposition.

[18] I turn now to deal with the merits of the fourth respondent’s opposition. The fourth respondent submits that he is the biological son of the deceased born on 16 April 1992, of a relationship between the testator and one Ms. Mariette Greyling. The applicant denies the latter and suggests that this fact should be subjected to the necessary proof.

[19] From infancy, the fourth respondent concedes that the testator, had not played the role of a doting father in his life, notwithstanding his desire to have same. The absence of the necessary contact details and geographical whereabouts of the testator made access to the testator impossible so went the version of the fourth respondent.

[20] During 2018, via a conduit Mr. Gareth Kretzman, the fourth respondent established contact with the applicant. A physical meeting between the applicant and the fourth respondent ensued. An exchange of contact details occurred for contact between the testator the fourth respondent to be initiated. The fourth respondent also expressed a desire to meet in person with the testator.

[21] Later in the same year, the applicant, the fourth respondent and the testator met in Bloemfontein at the behest of the testator. Pursuant to this meeting, communication between the fourth respondent and the testator proceeded being entirely confined to media communication on aspects of daily life. The weekend before the testator’s passing, the testator expressed a wish to see the fourth respondent. The fourth respondent could not acquiesce due to the short notice of the testator’s request coupled with work commitments. No further physical contact occurred until the testator’s passing.

[22] The fourth respondent concedes that he was not involved in the preparation, drafting or the execution of the testators will. The fourth respondent submits that there are several aspects regarding the testators will and the addendum thereto which requires clarification. Further, the version of the fourth respondent is that a referral to oral evidence is peremptory as the disputes cannot be adjudicated in the absence of the viva voce evidence of the second respondent. (Which I believe should read the third respondent).

[23] The fourth respondent proffers that the testator was severely ill and heavily medicated, resultantly the testator was not able to execute a will. Further, the fourth respondent opines that the testator “could not even write as his arm went lame as result of a spider bite and had difficulty speaking due to his illness.”

[24] In sum, the fourth respondent accentuates inter alia the following for disputing the validity of the testator’s will

(i) The testator was unable to sign.

(ii) The testator wanted all his children to benefit from his estate.

(iii) The testator does not deal with all his assets, inclusive of bank accounts.

(iv) The testator was a medical doctor and an astute businessman, the structure of the will was not in keeping with this.

(v) The testator informed his brother, Mr. Willie Smith, that his will is kept in the cabiel/glove compartment of the ML500, coupled with a wish that his brother inherits and relocate to the farm, “Vergenoeg”

(vi) The testator made certain specific requests regarding his burial instructions to his brother, which were not encapsulated in his will.

[25] The fourth respondent concludes as follows:

“Furthermore, in the light of the plethora of discrepancies, and possible fraudulent conduct evident from the conflicting versions of the Third Respondent recorded in Annexure “C” and annexures thereto, I respectfully submit that such evidence should only be under oath, but that it should be subjected to cross examination.”

[26] The major part of the fourth respondent’s affidavit does not reinforce the introductory portions wherein the contents of his affidavit are averred to be within his personal knowledge, both true and correct, and seems to hide and distort facts on the ruse of “where I make submissions of a legal nature I do so on the advice of my legal representative.”

Submissions by Applicant

[27] The applicant contends that the nub of the application is for relief as exhibited in terms of section 2(3) of the Wills Act 7 of 1953, wherein the Master of the High Court is ordered to accept the will of the testator as being a valid will, in circumstances where the relevant document does not cohere with the set-out formalities for the execution of a will.

[28] Counsel for the applicant argued that the testator expressed an overwhelming intention not to pass on, intestate. There was no collusion or fraud regarding the drafting of the testator’s will. It was simply a bona fide mistake founded on a lack of appreciation of the formal prerequisites essential to the drafting of a will.

Submissions by fourth respondent

[29] The relief that the fourth respondent sought was that the application be dismissed, alternatively an order referring certain aspects to oral evidence. The heart of the fourth respondent’s contention is that the will dated 12 June 2020, falls foul of legal prescripts governing the execution of a will as set out in section 2 of the Wills Act. Regarding the addenda, Counsel for the fourth respondent opined that it did not purport what it was alleged to be, given the fact that the addenda had been backdated.

The law

[30] Section 2 of the Wills Act, Act 7 of 1953, inter alia, provides as follows:

“2 Formalities required in the execution of a will

(1) Subject to the provisions of section 3bis-

(a) 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 signature is made by the testator or by such other 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;”

[31] The importance of witnesses to the signature of a testator was emphasized in Harpur NO v Govindamall and Another [1993] ZASCA 110; 1993 (4) SA 751 (A), where the following was advanced:

“The requirement for signatures of witnesses to a will provides a main safeguard against the perpetration of frauds, uncertainty

and speculation. Disputes regarding the validity of a will can arise only after the death of a testator, which may occur many years after it was executed. Ordinarily the only persons other than the testator who are likely to have knowledge of the circumstances of the execution of a will are the witnesses who, being present, personally saw or perceived it, and can testify in that regard. That purpose fails when the witnesses cannot be identified.”

[32] Section 2(3) of the Wills Act sets out peremptory requirements which a document has to meet before a court will order the Master to accept it as a will. In essence, an order under section 2(3) of the Wills Act, is that a document which is not a will for want of compliance with certain prescribed formalities but purports to be a will is given effect to if the requirements of the section have been met. To meet the watermark of this section, a court must be satisfied that

the deceased person who drafted or executed the document intended it to be his last will. That intention must have existed concurrently

with the execution or drafting of the document. See Harlow v Becker and Others 1998 (4) SA 639 (D).

Discussion

[33] In my evaluation, I propose to deal with the various grounds raised by the fourth respondent as to what are perceived factual disputes that necessitate a referral to oral evidence. I first propose to deal with an evidentiary question which may result in the implosion of the fourth respondent’s opposition in toto. I endeavour to provide some context. The bedrock of the fourth respondent’s opposition is based on utterances that was allegedly made by the third respondent:

[34] The testator was unable to sign

I have grave difficulty in understanding the factual basis of this averment as proffered by the fourth respondent. What is apparent to this Court, is that the fourth respondent is merely restating what is alleged to have been said by the third respondent during consultations with the fourth respondent’s attorneys of record. To place the testator’s inability to write in proper perspective, I borrow from correspondence of the fourth respondent’s attorney of record where the following is stated:

“18. Save to state that the Late Mr Smith had difficulty talking as a result of the tumour in his neck area and was unable to write as a result of a spider bite to his arm you explained that the late Mr Smith was able to managed his affairs up to and until the time of passing.”

[35] This is the nucleus of this averment. It is astounding that this averment should form the basis of a factual dispute. I will demonstrate how this contention is simply disingenuous. Firstly, the third respondent and her appointed legal representative have alleged unprofessional conduct on the part of the fourth respondent’s litigating team, in attempting to extract extraneous admissions from the third respondent to bolster the opposition of the fourth respondent. There appears to be a semblance of truth is this assertion by the third respondent. I expound herein under.

[36] In correspondence directed to the third respondent, a letter dated 14 February 2022, labouring twenty-two (22) paragraphs, in essence seeks corroboration from the third respondent as to what she allegedly said. Repetition by no stretch of the imagination transforms a statement into factual accuracy.

[37] Secondly, the third respondent disputes the contents of the correspondence and has made an affidavit refuting same. Whilst conceding to the existence of the communication with a member of the fourth respondent’s legal team, the third respondent submits under oath that she was interrogated and “tried to put words in my mouth and/or made various assumptions, which were not correct. I was in a state of shock both during the telephonic conversation and thereafter decided to consult an attorney.”

[38] Thirdly, counsel for the fourth respondent makes the following submissions in written heads of argument:

90. Fourth respondent and his legal representatives has been criticised and several allegations are made by both Applicant and the Third Respondent in the papers filed as to their conduct.

91. Fourth Respondent and his legal representatives stand by the submissions made in the papers, specifically pertaining to the consultations held with the Third Respondent and the information disclosed by the Third Respondent as record in the correspondence place before this Honourable Court.

92. It is the duty of the Fourth Respondent and his legal representatives to disclose all relevant information which can assist the Honourable Court to adjudicate on the matter to Court.

[39] Whilst the attainment of justice as an officer of the Court are laudable objectives, and a noble position to hold, the subservience to these time embedded prescripts must be elicited from the objective facts. To this end, the legal representatives had several consultations with the third respondent, notwithstanding an averment that a member of the fourth respondent’s legal representative previously represented the third respondent and now was said to be representing the fourth respondent, which if true, would be concerning. The need for these consultations has not been aerated. What stands out from these undisputed facts is that the fourth respondent’s legal representatives had little appetite for and were inept in securing an affidavit from the third respondent before she opted to enjoin the right to legal representation, in order to secure affidavit evidence of alleged improprieties.

[40] It is irrefutable that the testator’s signature was executed in the presence of witnesses. There is no evidence to gainsay same. The fourth respondent has merely embarked on exercise of conjecture and speculative hypnosis’s in attempting to discount the evidence of witnesses who confirm that the testator signed his will. The fourth respondent fervidly disputes the signature of the testator in the face of three witnesses who were present when the testator inscribed same but present no countervailing evidence in any form, inclusive therein would be that of a handwriting expert. The failure to secure independent evidence is telling.

The testator wanted all his children to benefit from his estate

[41] This is certainly not a ground to set aside the testator’s will. On the strength of the fourth respondent’s own concession, he regrettably did not have a meaningful or enduring relationship with the testator. They met for the first time in 2018. If indeed, that was the intention of the testator for all his children to benefit, he would have expressed the same. He did not. What stands out, is that the testator unequivocally and

unambiguously disinherited the fourth respondent and the testator’s brother Mr Smith. That undeniably was the intention of the testator. The objective facts fortify the same. I will explicate here under when dealing with the litigating conduct of the fourth respondent.

The testator does not deal with all his assets, inclusive of bank accounts.

[42] It is accepted that an estate may be partly testate and partly intestate. If there is any merit in this contention by the fourth respondent that all of the assets have not been bequeathed, then the latter scenario would find application. These assets then pass by testate inheritance, whereas the balance of the assets, not dealt with in the will, would pass by intestate inheritance.

[43] A basic tenet of ownership, is the right of the owner to decide how the disposition of his/her assets should unfold on death. See: Moosa NO and others v Minister of Justice and Correctional Services and others [2018] ZACC 19; 2018 (5) SA 13 (CC) para 18. It follows, notwithstanding, a constitutional dispensation, our law recognizes the freedom of testation. Seized with this right to dispose of assets with freedom, a testator may exercise a right to inherit or disinherit adult children. In making this observation, I pause to state the obvious. It is incontrovertible that as sacrosanct as freedom of testation may appear to be, it is not absolute. Courts have, in appropriate

circumstances, interfered with the exercise of such right, thereby limiting it within the contemplation of the provisions of the

Constitution. See: Minister of Education and another v Syfrets Trust Ltd NO and another [2006] ZAWCHC 65.

[44] I interpose to deal with the question of the testator’s assets. The applicant deals with the various “unaccounted for assets” in reply. As these are succinctly dealt with, I borrow exclusively therefrom in turn addressing each of the fourth respondent’s perceived

concerns:

The Vergenoegd Farm

[45] The applicant retorted as follows:

“My father was never the registered owner of the Farm Vergenoedg. This particular farm was at all relevant times owned by Gerhardus Dirk Pretorius and his wife Aletta Sophia Pretorius, and therefore, it makes sense that it was not listed as an asset in his will.”

Pharmanetic Interest

[46] Addressing this the applicant replies:

“I am fairly certain that my late father’s interest in Pharmanetic was transferred to the Third Respondent and I prior to his death. I recall him mentioning that he was in the process of dealing with this.”

Medical Equipment

[47] Regarding the medical equipment the following is posited:

“My late father, prior to his death, instructed me to remove his medical equipment from the Third Respondent’s garage since I am also studying in a medical field and could quite possibly use it someday.”

Mercedes Motor Vehicle

[48] In respect of the Mercedes motor vehicle the following is stated:

“My late father arranged well before his death, that the Mercedes vehicle be towed away and brought to Bloemfontein. The Third Respondent

assisted my father and attended to clear the vehicle before it was sent to me, and as such, do I have no knowledge of “any supposed will” that was kept in the glove compartment.”

Bank Accounts

[49] The applicant in reply to deals with the bank accounts of the testator as follows:

“The fourth respondent seeks to rely on his” knowledge “of three bank accounts which my father had by referring to my uncles confirmatory affidavit. The affidavit of Willie Smit is silent on the issue of bank accounts. To my knowledge did my late father have 2 bank accounts, yet I was not involved in or continuously informed by him regarding his personal finances.”

The testator was a medical doctor, an astute businessman, the structure of his will was not in keeping with this.

[50] There are no primary facts to underpin this averment. The fourth respondent was for most of his life alienated from the testator. It is therefore mystifying how the fourth respondent acquired such personal and intimate knowledge considering that the testator’s

whereabouts were unknown to him for much of his life. Even when the fourth respondent and the testator established contact, their

communication was restricted to “daily matters”. At no point did the testator disclose his portfolio of assets nor his desire that the fourth respondent should resume the position of a beneficiary on his passing. This is undoubtedly expressive and erodes any likelihood of the testator intending all his children to. It is trite that freedom of testator is a principle that is deeply entrenched in our law. See: BOE Trust Ltd NO and another (in their capacities as co-trustees of the Jean Pierre De Villiers Trust 5208/2006) (846/11)[2012] ZASCA 147; 2013 (3) SA 236 (SCA) para 26.

The testator informed his brother, Mr Willie Smith that his will is kept in the cabiel/glove compartment of the ML 500, coupled with a wish that his brother inherit and relocate to the farm, “Vergenoe.”

[51] This averment is not deserving of a profound enquiry. The applicant has addressed same. A wish operates in juxtaposition to the testator’s intention. A wish is defined as: feel or express a strong desire or hope for something that cannot or probably will not happen. See: Oxford English Dictionary. A wish is not equivalent to the intention of the testator.

The testator made certain specific requests regarding his burial

[52] To my mind this contention, is of no moment and does not erode the intention of the testator.

A referral to oral evidence

[53] The fourth respondent contention that a factual dispute exists is far-fetched and is clearly unworthy of any credence. According to the fourth respondent “there are several aspects related to the alleged Will and the Addendum thereto which requires clarification. I submit, for reasons evident from the content hereof, that such clarification can only be obtained by way of a referral of this matter for oral evidence. Furthermore, that the matter cannot be adjudicated upon in the absence of evidence of the Second Respondent….” (My emphasis). Further the fourth respondent contends that “ in light of the plethora of discrepancies and the possible fraudulent conduct evident from the conflicting versions of the third Respondent in ANNEXURE “C” and annexures thereto, I respectfully submit that such evidence should not only be under oath, but that it should be subjected to cross examination.”

[54] Bald, vague, and blanketed averments do not equate to a factual dispute nor is it a basis for a referral to oral evidence as envisaged in Rule 6(5)(e) of the Uniform Rules of Court. In Fakie NO v CCII Systems (Pty) Ltd, [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at paragraph [55] Cameron JA (as he then was) stated as follows :

‘That conflicting affidavits are not a suitable means for determining disputes of fact has been doctrine in this court for more than 80 years. Yet motion proceedings are quicker and cheaper than trial proceedings and, in the interests of justice, courts have been at pains not to permit unvirtuous respondents to shelter behind patently implausible affidavit versions or bald denials. More than 60 years ago, this Court determined that a Judge should not allow a respondent to raise 'fictitious' disputes of fact to delay the hearing of the matter or to deny the applicant its order. There had to be “a bona fide dispute of fact on a material matter”. This means that an uncreditworthy denial, or a palpably implausible version, can be rejected out of hand, without recourse to oral evidence. In Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd, this Court extended the ambit of uncreditworthy denials. They now encompassed not merely those that fail to raise a real, genuine or bona fide dispute of fact but also allegations or denials that are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers. Practice in this regard has become considerably more robust, and rightly so. If it were otherwise, most of the busy motion courts in the country might cease functioning. But the limits remain, and however robust a court may be inclined to be, a respondent's version can be rejected in motion proceedings only if it is “fictitious” or so far-fetched and clearly untenable that it can confidently be said, on the papers alone, that it is demonstrably and clearly unworthy of credence.’

[55] The fourth respondent’s opposition is ill-contrived and devoid of substantial facts. It is apparent

from his litigating stance that any legal point was latched onto, notwithstanding it being hamstrung before gaining any flight. The genesis of which was the point in limine. The bulk of his affidavit was no more than a feeble exercise in assumption and surmise. The brashness of the fourth respondent deserves judicial censure and an order of costs that are indicative of this Court’s displeasure.

[56] There was no basis on the facts for the fourth respondent to have opposed this application. Garnering the support of the testator’s brother, was ill-considered and did little to reinforce the fourth respondent’s opposition. To aver that “the content of this affidavit falls within my personal knowledge and belief save where the contrary is expressly stated and is both and true and correct” was simply mendacious. In Maharaj v Barclays Bank Ltd 1976(1) SA 418 at 423D-E, the court held that the mere assertion by a deponent that he can positively swear to the facts is not regarded as being sufficient, unless there are good grounds for believing that the deponent fully appreciated the meaning of these words.

[57] In President of the Republic of South Africa and Others v M&G Media Ltd 2011 (2) SA 1(SCA) at paragraph 38 the following was stated regarding personal knowledge:

“A court is not bound to accept the ipse dixit of a witness that his or her evidence is admissible..Merely to allege that that information is “ within the personal knowledge’ of a deponent is of little value without some indication at least from the context of how that knowledge was acquired, so as to establish that the information is admissible, and if it is hearsay, to enable its weight to be evaluated. In this case there is no indication that the facts to which Mr Chikane purports to attest came to his knowledge directly, and no other basis for its admission has been laid. Indeed, the statement of Mr Chikane that I have referred to is not evidence at all: it is no more than a bald assertion.”

[58] To the contrary, the fourth respondent’s affidavit was scant as regards facts that were within his personal knowledge. To brandish the phrase “further legal argument will be presented at the hearing” is simply disingenuous opposition. There is no underscoring that if a deponent to an affidavit lacks personal knowledge of material facts, the integrity and reliability of the substance of the affidavit presented to the court is seriously compromised.

[59] I turn to demonstrate that the fourth respondent is an opportunistic litigant.

(i) The fourth respondent contended that the testator was lawfully married to Ms. Petra Smith, and in support thereof annexed the death certificate of the testator explicitly indicating that the testator was divorced. On this basis, the fourth respondent sought to have the application dismissed with costs, not before going on a tangent about the applicant being selective with the disclosure of pertinent information.

(ii) Pursuant to the only physical meeting with the testator in 2018, the fourth respondent and the testator, shared thoughts on daily matters. By the fourth respondent’s own version, no intimate information was shared. Resultantly, at no point did the testator express a desire that all his children should be beneficiaries of his estate. To assert the latter as a fact is purely opportunistic. In fact, the testator made no mention of the fourth respondent in conversation relating to his children.

(iii) The fourth respondent places much store on a letter dated 14 February 2022 wherein, allegations made by the third respondent were basically regurgitated and emailed a day before filing of the fourth respondent’s answering affidavit. The third respondent rebuffed the contents of this letter by way of affidavit. The refuting of the accuracy of the contents of this letter and the averred coercive conduct of the litigating team of the fourth respondent, resulted in the fourth respondent not possessing any facts to mount a meaningful opposition to the application. Yet, the fourth respondent persisted.

(iv) The fourth respondent was obdurate that the contents of the letter dated 14 February 2022 was accurate, notwithstanding it being disavowed by the third respondent. The third respondent provided detailed insight on oath of the process that was followed in the drafting of the testator’s will and subsequent addendums. Corroborating witnesses confirmed the same. What stood out was that the testator had no intention of passing away intestate.

(v) The fourth respondent without any principal facts contends that “I submit that my Late Father, being severely ill and under the influence of extremely strong medication at the time, was not in a position to execute a will. He could not even write as his arm went lame as a result of a spider bite and had difficulty speaking due to illness.” Bearing in mind that the fourth respondent’s affidavit is prefixed on his personal knowledge, the fourth respondent does not make known, the basis of his personal knowledge. A microscopic examination of the fourth respondent’s affidavit does not disclose, how he had come to possess these facts. The third respondent whose factual account remained undisturbed was that the testator was until his death very lucid. He did not take any strong medication, but for sleep enhancement and antibiotics. Further, the testator prior to becoming indisposed, managed an alternative medical practice and was very selective about absorbing medication, which would have resulted in the impairment of his mental faculties. The applicant confirmed that the testator was a homeopathic medical practitioner and robustly opposed the use of strong non-herbal medication. Given the relationship of the applicant and the third respondent, their collective intimate knowledge of the testator’s lifestyle founded on facts triumphs over the fourth respondent’s unsubstantiated allegations, unsupported by any facts. Put differently, unsurpassed facts inexorably leads to its acceptance. Notwithstanding any tangible or cogent facts, the fourth respondent instead of desisting with his opposition persisted.

(vi) I have dealt with the fourth respondent’s unproven denial of the testator’s signature. The fourth respondent made assertions of fraud. Groundless averments have been the narrative of the fourth respondent’s opposition, which as a collective was woefully inadequate to dislodge the plausible explanation for non-compliance of the strict formal requirements for a will.

[60] In the premises, I make the following order:

Order

(i) It is ordered in terms of section 2(3) of the Wills Act 7 of 1953 that the first respondent accept for the purpose of the Administration of the Estates Act 66 of 1965, the last will of Petrus Immanuel Smith, dated 12 June 2020 and the addendum thereto be dated 16 July 2020, as his valid will;

(ii) The applicant is appointed as the executor of the Estate Late of Petrus Immanuel Smith with estate number 6[...].

(iii) That the first respondent be ordered to issue a letter of executorship within 30 days,

(iv) That the fourth respondent is ordered to pay the costs on an attorney client scale.

A REDDY

ACTING JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

For the Applicant: Adv Terreblance Instructed by Eileen Visser Attorneys C/O Oelofse Attorneys No9. Aerodome Cresent Mahikeng Industrial Mahikeng For the Respondent: Adv Ferreria Instructed by: H J Stander Attorneys C/O Labuschagne Attorneys 19 Constantia Drive Riviera Park Mahikeng Date of hearing: 02 February 2023 Date of judgment: 26 July 2023