The High Court in Kimberley has refused leave to appeal a ruling directing the Master of the High Court to accept a document signed electronically as the will of the late Constitutional Court Justice Yvonne Mokgoro under section 2(3) of the Wills Act.
The Court found that the statutory requirements for condoning non-compliance with the Act’s formalities had been satisfied, and nothing in the Electronic Communications and Transactions Act (ECTA) prevents a court from granting such relief.
In a decision handed down on 30 January, Judge Lawrence Lever dismissed an application by Gaolatlhwe David Mmelesi – the deceased’s life partner – for leave to appeal an earlier order directing the Master to accept what has been referred to as the “2021 will” of Mokgoro for purposes of administering her estate.
Mokgoro served on the Constitutional Court from 1994 to 2009 and was one of the Court’s founding justices.
Two competing wills
The dispute arose because two wills were discovered after Mokgoro’s death.
A 2014 will, which complied with the formal requirements of the Wills Act, left her share in a property in Magersfontein to Mmelesi. A later document, dated 2021 and signed electronically by the testatrix and witnesses, left that share instead to her children and granddaughter. The document existed only in electronic form and was recovered from a financial services firm that had stored it digitally.
It was not disputed in the proceedings that Mokgoro intended the 2021 document to operate as her last will.
The executor of the estate – one of Mokgoro’s sons – together with other family members asked the High Court to recognise the 2021 document as her will despite its failure to comply with the Act’s formal signing requirements.
They relied on section 2(3) of the Wills Act, which allows a court to order the Master to accept a document as a will even if it does not comply with the statutory formalities, provided the deceased intended the document to be their will.
Mmelesi opposed the application.
Court’s earlier ruling
In a judgment delivered on 1 August 2025, Judge Lever held that the requirements for section 2(3) had been satisfied and ordered the Master to accept the 2021 document as Mokgoro’s will.
A significant feature of the case was that the deceased’s intention was not in dispute. Counsel for Mmelesi expressly conceded in the earlier proceedings that Mokgoro intended the 2021 document to operate as her last will and testament.
The Court also rejected the argument that provisions of ECTA prevented reliance on section 2(3).
“There is no provision in ECTA which either expressly or by necessary implication excludes the operation of section 2(3) of the Wills Act where the jurisdictional facts necessary for the application of the said section 2(3) are established,” Judge Lever held.
The Court relied on established authority of the Supreme Court of Appeal, including Smith v Parsons NO and Others and Van der Merwe v The Master and Another, which hold that once the jurisdictional requirements of section 2(3) are established, a court must direct the Master to accept the document as a will.
Leave to appeal
Mmelesi subsequently applied for leave to appeal against the ruling.
Considering the application under section 17 of the Superior Courts Act, the Court found that the arguments raised were essentially the same as those advanced in the earlier proceedings and had already been addressed in the judgment delivered in August 2025.
“I cannot find that there is any reasonable prospect that another court will come to a different conclusion on any of these arguments,” Judge Lever said.
He also rejected the contention that the matter raised a novel legal issue warranting an appeal.
“The issue is not new or novel in the real sense […] it is merely an application of the provisions of section 2(3) of the Wills Act where the requirements necessary to establish the necessary jurisdictional facts were either conceded, not contested or otherwise established.”
The application for leave to appeal was accordingly dismissed, with costs awarded against Mmelesi.
Implications
In commentary on the case, Mathapelo Madiseng and Karel Kogler of Herold Gie Attorneys say the judgment illustrates how the courts may overlook formal defects in a will where the deceased’s intention is clearly established.
However, they emphasise that the ruling should not be read as condoning non-compliance with the Wills Act. Instead, it highlights the importance of complying with the Act’s formal requirements when executing a will to avoid disputes and potentially costly litigation.
As the case demonstrates, reliance on electronically signed documents may ultimately require court intervention before an estate can be administered. The case therefore illustrates how section 2(3) operates as a remedial mechanism to give effect to a testator’s intention where formal requirements were not properly observed.
