SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

REPUBLIC OF SOUTH AFRICA
            
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION, JOHANNESBURG

                                                                                CASE NO:

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

         08 November 2021		………………………...
                   DATE			        SIGNATURE

  24039/2015

In the matter between:
				         
COLLEEN SUSAN BILLINGS				Applicant
and
THE MASTER OF THE HIGH COURT OF
JOHANNESBURG						1ST Respondent
GAILEEN DENTON N.O. 					2ND Respondent
(In her capacity as appointed executrix in the
Deceased Estate of ELLEN JOAN CAMPBELL,
ID number […] (Estate No […])
GAILLEEN DENTON 					3RD Respondent
(ID No: […])
(In her personal capacity)

(This judgment is handed down electronically by circulation to the parties’ legal representatives by email and by uploading it to the electronic file of this matter on CaseLines.  The date for hand-down is deemed to be 8 November 2021.)

JUDGMENT

MIA, J

[1]	On the 11 January 2021, I granted an order in the following terms:

“1.	The document attached to the supplementary affidavit marked 'SA2" is declared to be the last will and testament of the late Ellen Joan Campbell.
2.	In terms of section 2(3) of the Wills Act 7 of 1953, the first respondent is directed to accept the document attached to the supplementary affidavit marked "SA2" to be the last will and testament of the late Ellen Joan Campbell, for the purpose of the Administration of Estates Act 66 of 1965.
3. 	The first respondent is directed to remove the second respondent as the Executrix of the late estate of Ellen Joan Campbell, (Estate number […]). The first respondent is to appoint Legatus Trust (PTY) LIMITED as executor of the late estate of Ellen Joan Campbell, (Estate number […]).
4.	The third respondent to pay the costs of the application.”

[2]	The third respondent brought an application for leave to appeal. The application is against the whole judgment. The application for leave to appeal was brought out of time. The application was two months and some days late and allegedly due to a lack of funds. The third respondent thus also brought an application to condone her non-compliance with the relevant legislation. Rule 49(1)(b) prescribes that the applicant must show good cause if it requires the court to extend the period of 15 days prescribed. It is thus required that the court consider whether there is good cause to grant condonation and whether there is a reasonable prospect that another court will come to a different decision on the merits. The facts are not repeated and appear from the judgment, only relevant aspects will be referred to.

[3]	Mr Van der Merwe, appearing for the third respondent argued that the third respondent clarified issues in her replying affidavit, as she did not have all facts at her disposal when deposing to her founding affidavit. In considering whether to grant condonation he submitted that this court had a wide discretion as indicated in Melane vs. Santam Insurance Co. Ltd 1962(4) SA 531 (A) where the Court stated the following:

“In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent's interest in finality must not be overlooked.

[4]	He also referred to the matter of City of Tshwane v Van der Merwe (64082/13) [2016] ZAGPPHC 597 (12 July 2016), where at paragraph [16] Semenya AJ held:

“Due to the nature of the issues which are likely to be presented, I find that it would be proper to allow the respondent to file the answering affidavit and to give the parties an opportunity to ventilate the issues in the main application.”

[5]	Mr Van der Merwe submitted that the court should lean in favour of the third respondent having regard to the finality and the financial implications of the order and the order as to the costs. He prefaced this by submitting that there were strong prospects of success and these should compensate for the long delay in bringing this application. 

[6]	He contended that the facts in the present matter were similar to those found in Bekker vs. Naude and others 2003(5) SA 173 SA at paragraph [8] where the Court noted: 

"As is clear from the facts, the deceased and the appellants gave oral instructions to Mrs Stoman of Absa Bank on how to draw up the will. Bank officials did so and sent a draft to the parties, who never signed it. The legal question then is whether the concept was "drafted" by the deceased and the appellants. The debate is about whether “drafted” has the meaning, in the context of the Act, of personally drafted, written, typed or established, as contributed by dictating it, or whether it has the broader meaning of “drafted” as in to be written, to typed or to compose.”(Original in Afrikaans translated into English loosely).
	
Mr Van der Merwe referred to paragraph [9] where the Court states: 

“A document that had the deceased drawn up by a lawyer, bank or other third person, therefore, does not qualify for ratification by virtue of section 2 (3) of the Act.” (Original in Afrikaans translated into English loosely).

[7]	Having regard to the Bekker case, Mr Van der Merwe noted the Court’s view that to ascertain whether an unsigned will can be regarded as a permanent will by simply looking at what the intent of the testator was is simply not sufficient. Rather the Court finds in paragraph [20] of that judgment that:

“There are therefore no grounds on which the ordinary literal meaning of section 2 (3) of the Act can be rejected. The Court has a "condensing power" only if the proposed will was made in person by the deceased. In the present case, the deceased had the concept drawn up by the bank in addition to the deceased's own instructions using their own standard terms and wording. It cannot be rightly said that the concept was "drafted" by the deceased, as opposed to "drafted". The ruling of the court a quo cannot be erred ”. (Original in Afrikaans translated into English loosely).

[8]	On this basis Mr van Der Merwe submitted that another court will come to a different conclusion than this court did in this application. He continued moreover that it was evident from the period that lapsed that there was never an intention to execute the 1997 document. He referred to the judgment of Paula Grobler vs The Master of the High Court and others 2019 JDR 1772 (SCA), where the court a quo dismissed the application on the basis that the final draft will was not drafted by the deceased and referred to the judgment of Bekker above.
										
[9]	In the Grobler case the Court stated:

“[14] 	The question relating to the first jurisdictional requirement is whether the draft will was drafted by the deceased, presents no difficulty. The answer is an unequivocal ‘No’. It is clear from the evidence that the document was prepared by Mr Stander. The amendments which followed were also effected by him. The deceased was then presented with the draft will under cover of Mrs Van der Walt’s message which expressly anticipated further consideration and alterations. And as the court a quo rightly found, there is simply no indication on the record that the deceased received the document sent on 17 December 2014 and accepted it as his will, which merely awaited signature. The uncertainty is heightened by the apparent discord between the deceased and the appellant regarding the nature of the latter’s inheritance of the deceased’s immovable property and the lapse of a whole year with no tangible move by any of the parties to finalise the exercise. In the absence of evidence that establishes that the deceased received, perused and approved all the contents of the draft will, I am unable to find that he intended it to be his will. The appeal must accordingly fail”.

[10]	Mr Van der Merwe 	submitted that in the present matter the evidence is that the document was drafted by a third person and does not meet the criteria as set in the Bekker matter where at paragraph [9] it states:
	
“[9] 'Drafted' when compared to 'drafted' can only carry the limited meaning of one's own action. There are therefore a series of rulings that have regarded this limited meaning as the correct one, including Webster v The Master and Others 1996 (1) SA 34 (D) at 41B - F per Magid R; Anderson and Wagner NNO and Another v The Master and Others  1996 (3) SA 779 (K) ([1996] 1 B All SA 637) op 784F - 785H (SA) per Thring R; Olivier v The Master and Others: In re Estate of the Late Olivier 1997 (1) SA 836 (T) at 844A - E per Smit R; Henwick v The Master and Another 1997 (2) SA 326 (K) op 334C - 335E J
per Foxcroft R (Van Reenen R and Pincus Wn R agree). See also Ex parte De Swardt and Another NNO 1998 (2) SA 204 (K) at 207B - F per Foxcroft R. According to this line of thinking, the deceased had to obtain the document, which he or she intended to be a will, wrote or typed or otherwise personally created. A document that the deceased had drawn up by a lawyer, bank or other third person, therefore, does not qualify for ratification by virtue of section 2 (3) of the Act. (Original in Afrikaans translated into English loosely).

[11]	The above contrasts with the view expressed in paragraph [10] that 

“[10] On the other hand, there are rulings that have accepted the broader meaning of 'draft' in section 2 (3) of the Act, in other words that a document that had the deceased drawn up qualifies for ratification. They are, inter alia, Back and Others NNO v Master of the Supreme Court [1996] 2 B All SA 161 (K) at C 167f - 175d per Van Zyl R; Ex parte Laxton 1998 (3) SA 238 (N) op 241E - 244G per Combrinck R; Ex parte Williams: In re Williams' Estate 2000 (4) SA 168 (T) at 172F - 178J per Swart R (Van Dyk R and Van der Merwe R agree). (Original in Afrikaans translated into English loosely).

[12]	Mr Van der Merwe submitted that despite the two views, the preferred view was that there was no intention to execute the will as a period of 13 years lapsed since the deceased signed the document to amend her will with Legatus. He referred to paragraph [20] of the Bekker decision relying on the literal meaning of s 2(3) of the Act that: 

“There are therefore no grounds on which to deviate from the ordinary literal meaning of section 2 (3) of the Act. The Court has a 'power of condonation' only if the proposed will was personally established by the deceased. In the present case, the deceased had the concept drawn up by the bank which, in addition to the deceased's own instructions, used their own standard terms and wording. It cannot rightly be said that the concept was 'drafted' by the deceased, as opposed to 'drafted'. The judgment of the Court a quo cannot be erred.” (Original in Afrikaans translated into English loosely).

Thus he continued that in the premises another court will come to another decision and that leave should be granted to the third respondent to ventilate these matters before a Court of appeal.

[13]	As far as costs were concerned, he submitted that the costs involved related to an application which was basically abandoned and replaced with a new application in respect of the supplementary affidavit that was filed. He continued that whilst it is the norm that costs should follow the result the normal costs implications in applications of this nature where two conflicting documents existing relating to the deceased should not be placed before the door of any of the litigants but should be borne by the estate.    

[14]	Mr. Karolia, counsel appearing for the applicant, submitted that on the issue of condonation the third respondent simply lied. He referred to her email dated 11 January 2021 where she responds to her attorneys correspondence informing her of the outcome to which she responds “Ek kan dit nie glo nie”. He submitted it is evident from the correspondence from attorney, Jaco Van Staden, to the third respondent, dated 2 February 2021  that she was aware of the judgment as the attorneys informed her that they required a deposit before they could proceed. They also advised her that time to lodge an application for leave to appeal was passing and each day that passed influenced the granting of condonation for the late lodging of an appeal. Notwithstanding, the correspondence attached, the third respondent, says she only became aware of the judgment in March 2021 in her application. 

[15]	Counsel for the applicant, referred to the decision in Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) 2008(2) SA 472 CC, where Court considered the issue of condonation at paragraph [20]:

“[20] This court has held that the standard for considering an application for condonation is the interests of justice.  Whether it is in the interests of justice to grant condonation depends on the facts and circumstances of each case. Factors that are relevant to this enquiry include but are not limited to the nature of the relief sought, the extent and cause of the delay, the effect of the delay on the administration of justice and other litigants, the reasonableness of the explanation for the delay, the importance of the issue to be raised in the intended appeal and the prospects of success.”
	
[16]	He underscored that the Court in the Van Wyk matter stated at paragraph [22]:

“An applicant for condonation must give a full explanation for the delay. In addition, the explanation must cover the entire period of delay. And, what is more, the explanation given must be reasonable.”

Counsel for the applicant submitted that the third respondent lied and did not furnish a satisfactory explanation for the late application in seeking condonation and did not furnish an explanation for the entire period of the delay. When taken in perspective, he pointed out that this was a 2015 matter and the litigants were entitled to finality. He pointed out the similarities in the Van Wyk matter and the present matter where the third respondent did not really wish to pursue the appeal. The third respondent in the present matter initially sought to avoid paying the costs herein. Her indecision resulted in a delay. The Van Wyk matter at paragraph [31] highlights the need for closure in litigation as follows:

“A litigant is entitled to have closure on litigation. The principle of finality is intended to allow parties to get on with their lives. After an inordinate delay a litigant is entitled to assume that the losing party has accepted the finality of the order and does not intend to pursue the matter any further. To grant condonation after such an inordinate delay and in the absence of a reasonable explanation, would undermine the principle of finality and cannot be in the interests of justice.”

[17]	Counsel for the applicant submitted that the third respondent had filed an answering affidavit late previously delaying the matter and once again sought an indulgence and delayed the matter. The respondents were entitled to assume as indicated in the Van Wyk matter that the third respondent did not intend pursuing the matter and was trying to get away from paying the costs. He continued that the third respondent then turned around and changed her mind and decided after a substantial delay that she wished to pursue the matter furnishing the reason for the delay that she did not have funds to pursue the matter and had to find new attorneys. 

[18]	He continued moreover that the authorities he relied upon provided for a liberal interpretation which sought to capture the intention of the testator which was evident in the judgments he referred to above. In this regard he submitted that the intention of the testator was relevant and the intention of the testator was captured in the judgment of this court at  least three times namely; in paragraph [8],  where on the third respondent’s version, her mother, the deceased, informed her that she wished to change her will, then at paragraph [11], where the deceased told her children she had a will drafted to protect Walter, their brother, which appears to be the 1997 document. The third reflection of the deceased’s intention was that it is not clear why the deceased would wish to benefit the third respondent to the exclusion of her siblings and this especially after the deceased approached the third respondent to request that her will concluded with Van Staden attorneys be changed. She was aware that her mother intended to change her will. On her own version her mother approached her to take her to the attorneys to change the will. She refused. She was aware that the deceased sought to provide for all of her children and especially her brother. 

[19]	In this regard, he submitted that the present matter was different from the Bekker matter which the third respondent relied upon. The Bekker matter involved two wives, and the testator furnished his instructions orally to the bank. In the present matter however the testator has completed her instructions to Legatus in writing, it was signed and was witnessed. All that remained was for her handwritten instructions reflecting her intentions to typed. These two documents were kept together for thirteen years. Counsel for the applicant submitted that this court cannot ignore that the documents accord with each other. She kept it for 13 years as the will was in Walter’s possession. She did intend for it to be her final will. The authorities relied upon as supported her intention. This document was found. He continued it would be misleading to withhold the document from the court. 

[20]	Counsel for the applicant submitted that the issue of the costs should be paid by the third respondent as there was never a case made out that the estate should pay the costs. In the present matter the third respondent sought an indulgence and has no prospects of succeeding and should bear the costs. Furthermore, he submitted, the estate is not a substantial estate and where the third respondent seeks to contest the will knowing the intention of her mother, the deceased, to change the will, she ought to bear the costs. She also ought to bear the costs where she seeks to pursue the matter further.  

[21]	Having considered the submissions of both legal representatives, at the outset it is apparent that the present matter is distinguishable from the matter appearing before Semenya AJ, referred to by Mr Van der Merwe. The court in that matter was required to deal with an issue related to the termination of electricity where an amount was paid up and the Municipality had issued a statement with a zero balance. The matter referred to had found its way onto the urgent court roll at some stage unlike the facts in the present matter. Thus the matter is distinguishable from the present matter in relation to the urgency that may have informed the court’s view as well as the surrounding facts which required ventilation in the main application. The applicant does not make out a good case for condonation and for the delay. It is apparent that she delayed despite her attorney advising her that time was of the essence and an explanation was required for each day that they delayed. It is also evident that there was initially an intention only to settle the costs issue and only later did the applicant decide to pursue the appeal. 

[22]	Both Mr Van der Merwe and Mr Karolia addressed me on the intention of the testator which is the crux of the matter.  I have had regard to the facts of the Bekker matter and am not persuaded that it applies to the present matter. I agree with Counsel for the applicant that the facts are distinguishable. In Van Wetten and Another v Bosch and Others 2004(1) SA 348 (SCA), the Court held: 

“That enquiry of necessity entails an examination of the document itself and also of the document in the context of the surrounding circumstances. I shall, however, first discuss the circumstances of the deceased, and his conduct in handing to Van der Westhuizen a sealed envelope containing others addressed to his wife, to his child and to an attorney.”

Similarly, the surrounding circumstances of the present matter indicate that the deceased intended for all her children to benefit from her will. The third respondent’s version supports this contention. The deceased’s signed, witnessed document reflecting her instructions to Legatus and the will drafted subsequently are identical and reflect her intention. Counsel for the applicant’s submission that the Van Wetten matter which looks at the surrounding circumstances and considers a document drafted by the testator as legitimate as being closer to the facts of the case is considered to be probable. It cannot be ignored that the deceased wrote down her intention, signed the document and it was witnessed. This appears to be the last written document reflecting her intention as to how her estate was to be distributed.
 
[23]	The applicant must satisfy the court that another court will reach a different conclusion.  The test in deciding whether leave to appeal should be granted was whether there is a reasonable prospect that another court may come to a different conclusion to that reached by me in my judgment. The approach codified in section 17(1)(a)(i) of the Superior Courts Act 10 of 2013, which came into operation on 23 August 2013, provides that leave to appeal may only be given where the judge or judges concerned are of the opinion that "the appeal would have a reasonable prospect of success". The wording of this subsection raised the bar of the test that now has to be applied to the merits of the proposed appeal before leave should be granted. This view has been supported in a number of decisions.

[24]	I am not persuaded that another court is likely to come to a different conclusion on the issues raised by the third respondent in the application for leave to appeal. I am therefore of the view that there are no reasonable prospects that another court would come to different conclusions, be they on aspects of fact or law, to the ones reached by this court. The appeal does not, in my judgment, have a reasonable prospect of success. Leave to appeal is therefore be refused.

[25]	In the circumstances, I make the following order:

Order

1.	The third respondent’s application for leave to appeal is dismissed with costs.

		   _________________________________________________
						 S C MIA
		          JUDGE OF THE HIGH COURT OF SOUTH AFRICA
		             GAUTENG DIVISION, JOHANNESBURG

Appearances:

On behalf of the applicant			:	Adv M Karolia	
Instructed by                                 		:          Ayoob Kaka Attorneys

On behalf of the 2nd and 3rd respondent	:	Adv A Scott
Instructed by                                  	:         Low & Heyl Attorneys
Date of hearing                              	:         17 June 2021 
Date of judgment                          	 	:         08 November 2021