Nodada v The Master of the Supreme Court and Another

• Jurisdiction: South Africa
• Judge: Miller, J
• Judgment Date: 27 June 2003
• Docket Number: 786/2001
• Court: Transkei High Court
• Hearing Date: 13 June 2003
• Citation: 2003 JDR 0597 (TkH)

Miller J:

This is an appeal against the judgment of a single judge in terms of which an application brought by the appellant to have a document declared to be the last will and testament of the late Ellis Kwezi Nodada was dismissed.

The background to this matter, summarized from the affidavits filed of record, is as follows:

The appellant and Ellis Kwezi Nodada (hereinafter referred to as "the deceased") were married to each other in community of property on 14 June 1986. Four children were born of the marriage, namely, Thina Sivuyile, who was born on 22

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April 1987, Sive Axolile, who was born on 9 August 1989, Aza-Sakhe, who was born on 28 March 1991 and Weza Khanya, who was born on 5 July 2001. The deceased also had a child, Litha Khaliphile, who was born out of wedlock on 30 August 1979, who lived together with him, the appellant and their aforesaid children.

At a stage, sometime before November 2000, the deceased, who was a practising attorney, mentioned to the appellant that it would be prudent for them to have a will. They discussed the matter and some time thereafter, during or about November or December 2000, the deceased handed a typed copy of a document to the appellant which he proposed should be their joint will and testament. He asked her to read it and stated that if she is satisfied with it they should then execute it in the prescribed manner and make it their joint will.

The document itself consists of five typed pages. It appears to be professionally drawn and is headed "Last Joint Will and Testament of Ellis Kwezi Nodada and Xoliswa Pumla Nodada". It provides, inter alia, that the estate of the first-dying of them is bequeathed to the surviving spouse and their children, who are listed as being Litha Kalipile, Tina Sivuyile, Sive Axolile and Aza-Sakhe, in equal shares. The document contains nothing in manuscript and is unsigned.

It was typed by Lindiwe Xhwara who was employed by the deceased at his practice as a typist. According to her the deceased gave her a draft of the document which he hand written. She copy-typed the document from the deceased's hand-written draft and then returned both documents to the deceased for checking. The deceased destroyed the hand-written draft after checking the

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typed document and finding it to be in order.

The appellant, after receiving the document from the deceased, read it and was satisfied with the contents thereof save that she had difficulty in fully understanding one paragraph because of the legal terminology used therein (such paragraph related to the inheritance of any beneficiary being free from the legal effects of marriage) .She mentioned this to the deceased and requested him to find time to explain the paragraph to her in simpler terms. They never got around to discuss the matter further before the untimely death of the deceased on 8 November 2001.

The 2nd Respondent was born out of wedlock on 17 August 1976. His father was the deceased and his mother is Lindiwe Peter. He states that the deceased regarded him as one of his children and his eldest son. He cannot think of any reason why the deceased would exclude him from inheriting and accordingly believes that the document is not genuine. He contends that...