- A 2020 document was said to leave Stella Masetlabeng Bapela’s house, furniture and bank balances to her relative, Phemelo Millicent Aphane.
- The dispute focused on whether the document counted as Bapela’s valid will in terms of the Wills Act.
- The court made it clear that drafting a will yourself is not legally the same as telling someone else to do it for you.
A document allegedly signed by Stella Masetlabeng Bapela on 19 August 2020, leaving her house, furniture and bank balances to her relative, Phemelo Millicent Aphane, became the subject of a High Court dispute after Aphane asked for it to be recognised as Bapela’s valid will.
Although the document set out what Bapela supposedly wanted, it did not meet several formal requirements of the Wills Act of 1953. Because of this, Aphane asked the court for permission under Section 2(3) of the Act, arguing that the Master of the High Court should be told to accept it as a valid will.
The case hinged on one word
Acting Judge ND Kekana said the application was not just about missing signatures or initials. The key question was whether Bapela had actually “drafted” the document.
The judgment explains that Section 2(3) gives courts a limited power to recognise wills that are not perfect, but only if strict rules are met. One of those rules is that there must be proof that the deceased personally wrote the document and meant it to be their last will.
Quoting the Supreme Court of Appeal in Bekker v Naudé, the judge said that “the requirement that the testator should have drafted the document is stated in unambiguous language.”
The court found that Aphane had not given any facts showing that Bapela personally wrote or put together the disputed document.
Witness evidence raised further doubts
The dispute became even more complicated after evidence from one of the supposed witnesses, Ezekiel Khalo. In an affidavit, Khalo said that Aphane brought him a blank document to sign. He told the court he had no idea what he was signing and that Bapela was not there when he signed it.
The judgment notes that Khalo’s story was never really answered. It also points out that no affidavit was obtained from the alleged second witness, even though there was a chance to do so in reply.
Even the attorney who was said to have drafted the will did not identify the second witness or say that anyone else was present when it was signed. “The second witness remains mysterious,” Judge Kekana wrote.
Why the application failed
Judge Kekana said that the rule requiring two competent witnesses is not just a technicality but a safeguard that lets those witnesses confirm the will’s authenticity if it is ever challenged.
With no proof that Bapela wrote the document herself, one witness saying he signed a blank page, and no information about the second witness, the court decided that the legal requirements for condonation had not been met.
The application to have the 2020 document accepted as Bapela’s valid will was dismissed with costs.
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