Tole v Master of the High Court of South Africa and Others (2070/15) [2017] ZAECMHC 22 (29 June 2017)

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

(EASTERN CAPE LOCAL DIVISION, MTHATHA)

CASE NO: 2070/15

In the matter between:

AURELIA LOLO TOLE

Applicant

and

MASTER OF THE HIGH COURT OF SOUTH

AFRICA

First Respondent

NOCWAKA TOLE

Second Respondent

NOBAHLE TOLE

Third Respondent

SIPHUMEZE TOLE

Fourth Respondent

LANGITHEMBA TOLE

Fifth Respondent

LUSANDA MZIWAMAMFENE TOLE

Sixth Respondent

SINDISWA NWAYI, N.O.

Seventh Respondent

JUDGMENT

MBENENGE ADJP:

[1] This application concerns the question of whether a document purporting to be the last will and testament of the late Fumanekile

Alfred Tole (the deceased) the first page of which is not signed, but the second and last page of which was allegedly signed by the deceased and certain witnesses (hereinafter otherwise referred to as the purported will) was in fact intended to be the deceased’s

final will and testament.

[2] Section 2 (1)(a)(iv) of the Wills Act 7 of 1953),[1] reads:

“(a) [N]o will executed on or after the first day of January, 1954 shall be valid unless –

(i) …

(ii) …

(iii) …

(iv) If the will consists of more than one page, each page other than the page on which it ends, is also so signed by the testator or by such other person anywhere on the page…”.

[3] When the document was presented to the first respondent, on 12 June 2015, it was rejected as not having been executed in compliance with section 2 (1)(a)(iv) of the Act. The applicant, a sister to the deceased, in her capacity as the alleged executor of the deceased’s estate,[2] seeks an order directing that the purported will be accepted by the first respondent as the will and testament of the deceased for the purposes of the Administration of Estates Act 66 of 1965. As consequential relief, the applicant also seeks an order directing the first respondent to appoint the applicant as the executor testamentary to the deceased’s estate and that “any appointment by the First Respondent of any person as the Executor dative in the estate of the deceased…be…set aside as being invalid and unlawful.”

[4] The application is predicated on section 2 (3) of the Act, which provides:

“(3) If a court is satisfied that a document or the amendment of a document drafted or executed by a person who had 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 amended, for the purposes of the Administration of Estates Act, 1965 (Act 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).”

The applicant has alleged as much, that the deceased fully intended that the document in question be his will.

[5] The third to sixth respondents are offspring of the deceased and the second respondent. The seventh respondent is the guardian of S. X. (a minor) born of the deceased and the late N. X.. She (the seventh respondent) is sister to the late Nofanele. No relief is being sought against the second to the seventh respondent; they are cited merely as parties who have an interest in the outcome of these proceedings.

[6] The second to the fifth respondents (otherwise referred to as the respondents) are opposed to the grant of the relief sought by the applicant. The first respondent has not opposed the application. A notice to abide the decision of this court was filed for and on behalf of the seventh respondent.

[7] It is trite law that in determining whether or not the deceased intended a document subject to an application brought in terms of section 2 (3) of the Act the court is not bound to apply the established principles of documentary interpretation but to examine

the content of the document in the context of the surrounding circumstances which prevailed when it was executed.[3]

[8] In Van Wetten & Another v Bosch & Others[4] SCA formulated the test 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 if necessary entails an examination of the document itself and also of the document in the context of the surrounding circumstances of the deceased…”.[5]

[9] Before delving into the substance of the issue at hand it bears mentioning that up until argument stage the application also involved a quest for an order declaring the deceased to have “divorced or unmarried to or with the second respondent on (sic) May 1993.” The better part of the founding affidavit was devoted to pointing out that even though the deceased and the second respondent had contracted a marriage by customary rites in accordance with the provisions of the Marriage Act 21 of 1978 (Transkei) during 1982, which marriage produced the offspring referred to above, the marriage had never been registered and, in any event, the second respondent had deserted the common home and not lived with the deceased for a period in excess of 23 years, with the result that the deceased had not been treating her as his wife. The marital relationship between the deceased and the second respondent is portrayed as having been a most unhappy one.

[10] The applicant makes reference to a copy of an affidavit allegedly deposed to before the Magistrate, Ngqeleni wherein the following

inter alia appears:

“Owayesekuba ngunkosikazi wam uCeliwe Hlazo (Nocwaka Tole) owandalayo, ngo May 1993, ndamosula kwiincwadi zam zasemsebenzini kanti nasekwendeni kum, nasempahleni asidibananga. Lilonke ke xa ndingafa aze angandizileli, ancede kuba akasengomfazi wam.”[6]

According to the affidavit, the deceased directed that, upon his demise, 50% of his estate devolve upon his mother and the other half upon his children namely, Nobahle, Siphumeze, Langithemba and Mzwamamfene.

[11] To bolster her case, the applicant also makes reference, inter alia, to a protection order the deceased obtained from the Magistrate’s Court, Mthatha in terms whereof the second respondent was restrained from committing acts of violence towards the deceased, insulting the deceased and entering his place of residence.

[12] At the hearing before me the quest for the order declaring the marriage between the deceased and the second respondent to have not been in existence or to have been terminated was abandoned. The applicant also did not press for the grant of the consequential

relief, referred to in paragraph [3] above, leaving the sole issue for determination being that alluded to in paragraph [1] above.

[13] The deceased met his death on 30 May 2015. Upon the death of the deceased, members and relatives of the Tole family attended upon the office of the first respondent with a view to setting in motion the process of winding up the deceased’s estate in terms of the purported will (also hereinafter referred to as “LT1”). It is not disputed that the second respondent and members of her family were present at least on the day when the first respondent decided not to accept the purported will on the basis that it was not initialled or signed on the first page.

[14] In opposition to the application the respondents contend that the purported will should be “regarded as pro non script[o]” and “rejected as a Will,” because:

“… the Master demanded that the applicant produce the original of “LT7”.[7] The applicant, after almost two weeks, did not come with the original of “LT7”, instead, she came with yet another

controversial document, “LT1”, which itself did not pass…muster [as] being a valid Will.”

Elsewhere, dealing with the locus standi of the applicant, the second respondent says:

“In amplification of the denial I wish to state that this purported will by the deceased… is the second will that was brought to the Master by the applicant after the first will marked “LT7” she had brought to the Master was rejected on the grounds that it was a copy.

The applicant was ordered by the Master to bring the original of “LT7” as the Master does not operate on copies of Wills.

The applicant promise[d] to bring the original of “LT7” promptly, instead and this after two weeks, she brought “LT1”

as she claimed that she had lost the original of “LT7.”

[15] According to the respondents it is strange that the deceased would have nominated the applicant who dominated him (the deceased) during his lifetime, and disinherit his children, contrary to annexure “LT7”.

[16] There is a dispute of fact regarding precisely what transpired at the first respondent’s offices. According to the applicant she was at no stage required to bring the original of “LT7” as that document is of no significant, it having, in any event, been overtaken by the purported will. She goes on to say she had been called upon to bring the original of “LT1”, which she did. The original copy of “LT1” is still with the first respondent.

[17] But for what follows hereunder, that dispute would, relating as it does to a peripheral issue, not be dispositive of this matter.

[18] It is alleged that the witnesses who signed the purported will are “all competent person[s] who understood what was going on when they signed [the purported will].” They are said to have appended their signatures in the presence of each other, and the deceased signed in their presence. The applicant further states that they all informed her that “they were not aware that the first page of LT1 would cause any prejudice to the wishes of the deceased, and if they were well informed they would have signed on the first page of annexure LT1; as they knew the deceased well.”

[19] In paragraph 21.1 of the founding affidavit the applicant says:

“The rest of the people who signed on LT1 are friends of the deceased who have no legal knowledge and I submit that to them the issue that was serious and paramount was that the deceased has indicated his wishes well. The

witnesses on LT1 are Messrs Z W Mayekiso, S E Makalata, N Gqokonqana, and B Mgaju; and they are all employed at KSD. Their full names appear in their respective confirmatory affidavits.” (The emphasis is mine).

Quiet curiously, Manana’s name is not referred to in the quoted paragraph, despite the fact that he also deposed to a confirmatory

affidavit.

[20] For her part, the second respondent contends that the witnesses were influenced to fabricate an untruth and give effect to the nefarious intents of the applicant.

[21] The alleged witnesses have indeed deposed to confirmatory affidavits all of which form part of the record in these proceedings.

Besides stating that they used to work with the deceased at King Sabata Dalindyebo Municipality, the confirmatory affidavits merely

“confirm all that is mentioned [in the founding affidavit] as far as reference is made to [them].”

[22] The applicant, having been absent when the will was signed, is not in a position to shed light regarding the circumstances that prevailed when the purported will was executed. One would have expected the witnesses not to merely confirm what has been said about them in the founding affidavit, but to shed light regarding the circumstances surrounding the execution of the will. This court is entitled to and does in fact, take judicial notice of the fact that at all times relevant hereto, Mr Mphuthumi Cameroon Manana was an attorney of this court. This fact can easily be ascertained from sources of undisputable authority.[8] Attorneys who have at some point or the other appeared before this court are known to members of the Bench and practitioners in this Division. Their admission as such (and invariably their removal) can be ascertained from a perusal of the relevant court file. It hardly lies with the applicant to suggest that Mr Manana had “no legal knowledge” of how wills are executed.

[23] In my view, therefore, there is a drought of information regarding the circumstances surrounding the execution of the purported will. This can only be resolved with the court ordering that the matter be referred for the hearing of oral evidence during which the persons who signed the purported will should be subpoenaed to testify in relation to the circumstances surrounding the execution of the will.

[25] It is ordered that:

(a) Oral evidence shall be heard to determine the circumstances in which annexure “LT1” to the founding affidavit deposed to by Aurelia Lolo Tole was executed.

(b) Unless the court otherwise directs, on the issue to which paragraph (a) above has reference, the following witnesses must subpoenaed and be available for cross-examination:

(i) Mphuthumi Cameroon Manana;

(ii) Zanendawo Wycliff Mayekiso;

(iii) Simphiwe Makolota;

(iv) Bonginkosi Mgaju; and

(v) Nkosiphendule Gqokonqana.

(c) No other witnesses may be called to testify except with the leave of this Court or a Judge in Chambers, which leave may be sought only after the opposite party has been given fourteen days’ notice of the date and time when such leave will be sought and such notification is accompanied by a summary of the proposed evidence of the witness in sufficient detail to allow an assessment of the justification of allowing the witness to be called.

(d) The costs of this application thus far shall stand over for determination by the court hearing oral evidence.

_____________________________________

S M MBENENGE

ACTING DEPUTY JUDGE PRESIDENT

HIGH COURT, MTHATHA

I agree:

___________________

F B A DAWOOD

JUDGE OF THE HIGH COURT

Counsel for the applicant: Z Nabela

Instructed by:

N Z Mtshabe Inc

MTHATHA

Counsel for the respondents: S P Foord

Instructed by:

Justice Centre

Heard on:

15 June 2017

Delivered on:

29 June 2017

[1] The Act

[2] Clause 7 of the purported will appoints the applicant to be the “Executor of [the deceased’s] Estate and to conduct all necessary transfers of [the deceased’s] property should it be necessary to do so.”

[3] KPMG Chartered Accountants (SA) v Securefin Ltd & Another 2009 (4) SA 399 (SCA); [2009] 2 ALL SA 523, para 39; also see Taylor v Taylor 2012 (3) SA 219 (ECP), para [6]

[4] 2004 (1) SA 348 (SCA)

[5] Para [16]

[6] Here is the English translation of this: “The one who used to be my wife, Celiwe Hlazo (Nocwaka Tole), and who deserted me during May 1993 has been removed from being beneficiary;

she is no longer wedded to me. We no longer share community of property. In all, even if I were to die I do not expect her to mourn my departure, because she is no longer my wife.” (The affidavit is marked “LT7” to the founding affidavit and is thus also referred to as such hereinafter).

[7] The defendant deposed to before the Magistrate referred to in paragraph - above

[8] DT Zeffertt & AP Paizes, The South African Law of Evidence, (2nd Ed) p873