In an important judgment that addresses the intersection of modern technology and traditional legal formalities, the Northern Cape High Court in Kimberley has ordered the Master of the High Court to accept an electronically signed will as the valid last will and testament of the late Constitutional Court Justice Mokgoro.

Justice Mokgoro, who passed away on 9 May 2024, left behind two wills that created a legal dispute within her family. The earlier will, drafted in 2014, had appointed an executor and made specific bequests, including leaving her share in a Kimberley golf estate property and a Jeep Wrangler entirely to her life partner, David Goalatlhwe Mmelesi. The remainder of her estate was to be distributed among her children and granddaughter.

However, a later will, drafted in 2021, emerged that significantly altered these arrangements. Most notably, the 2021 will divided the Kimberley property equally among her four children, while still leaving the Jeep Wrangler to her partner. The 2021 will also corrected an error in the 2014 document, which had incorrectly referred to her daughter Gaobolelwe as her "sister”.

The controversy arose because the 2021 will bore electronic signatures rather than traditional handwritten ones. When the deceased's son, Ithatheng Mokgoro, discovered this, he contacted the two witnesses who confirmed they had signed electronically following the deceased's email instructions.

This email, which proved crucial to the court's decision, revealed Justice Mokgoro's clear intentions. She had written to her confidants Andiswe Oliphant and Florence Leshabane, asking them to witness her last will and testament and providing specific instructions for electronic signing. Particularly telling was her statement: "Please do not see my humble request as a burden because I have done all I can to make my last will and testament as fair and uncomplicated as I can."

Mr Mmelesi, Justice Mokgoro's life partner, who stood to lose an inheritance under the 2021 will, opposed the application on several grounds. His legal team argued that the Electronic Communications and Transactions Act (ECTA) explicitly prohibits electronic execution of wills, and that the document failed to comply with the formal requirements of the Wills Act.

Judge Lever systematically dismantled these arguments, focusing on the true purpose of Section 2(3) of the Wills Act. This provision allows courts to validate documents that do not meet strict formal requirements if they can establish that the deceased intended the document to be their will.

The judge emphasised that the applicants weren't seeking to legitimise electronic will execution generally but rather invoking the curative provision that prevents technical failures from defeating a testator's genuine intentions. As the Supreme Court of Appeal had previously noted, the legislature intended that failure to comply with formalities shouldn't "frustrate or defeat the genuine intention of the testators”.

The court found that three requirements for Section 2(3) relief were met: the document was executed by the deceased (in the ordinary sense of carrying out her instructions), she had died since execution, and she clearly intended it as her will.

While acknowledging that Justice Mokgoro may not have personally "drafted" the will in the strictest sense (it was prepared by Capital Legacy), the judge found that she had clearly executed it through her detailed email instructions and acceptance of the document as her own testament.

The court defined "execute" in its ordinary meaning as "to carry through to the end" and "to put into effect," finding that Justice Mokgoro had done exactly this through her deliberate actions in arranging for the electronic signing.

This judgment represents an important development in South African law's adaptation to digital realities. While the court was careful not to endorse electronic will execution generally, it showed that technical failures in execution methods need not defeat clear testamentary intentions when the curative provisions of the Wills Act can be invoked.

The decision also underscores the evidential value of digital communications in establishing testamentary intent. Justice Mokgoro's email provided compelling proof of her wishes, demonstrating how modern communication methods can support traditional legal principles.

The court awarded costs against Mr Mmelesi, finding that while the legal issues were novel, his opposition was unsuccessful given the clear evidence of the deceased's intentions.

This case serves as a reminder that courts will look beyond technical formalities to honour genuine testamentary intentions, while also illustrating how digital evidence can effectively establish a deceased person's wishes. For legal practitioners, it emphasizes the importance of proper will execution procedures while showing that technical errors need not be fatal when clear intent can be proven.

The judgment ensured that Justice Mokgoro's final wishes regarding the distribution of her estate, particularly her desire to treat her children equally regarding the family property, were respected and given legal effect.

Reference list:
• Mokgoro NO and Others v Master of High Court, Kimberley and Others (09/2025) [2025] ZANCHC 48
(1 August 2025)
• https://www.fisa.net.za
• https://iol.co.za/news/crime-and-courts

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