DID YOU SAY “ASININE” MILORD? Bekker v Naude 2003 5 SA 173 (SCA)

Abstract

Bekker v Naude (2003 5 SA 173 (SCA)) concerned the vexing question of whether a will that was drafted by an attorney or other advisor of a person since deceased, but which was never executed by the deceased and indeed complies with none of the formalities for a valid will, can be accepted as a document that was “drafted” by the deceased and therefore be “rescued” and made effective in terms of the power of condonation conferred on a court by section 2(3) of the Wills Act 7 of 1953 (as amended) (hereinafter called “the Act” or the “Wills Act”) if the court is satisfied that the deceased intended the document to be his or her will. Since section 2(3) was enacted in 1992 there have been no less than 25 reported decisions concerning it, and many of them have concerned this question. The first few decisions concerning this question took a narrow approach to the meaning of the term “drafted” in section 2(3) that did not favour rescue, but a more flexible or liberal approach emerged which was soon favoured by the weight of judicial opinion. The apogee of this approach to section 2(3) is perhaps the decision in Ex parte Williams: In re Williams’ Estate (2000 4 SA 168 (T)) where Swart J, delivering the unanimous judgment of a full bench of the Transvaal Provincial Division, went so far as to describe the strict approach to section 2(3) as “an asinine culmination of the very sound reason for promulgating s 2(3)”. However, the Supreme Court of Appeal has now overruled the flexible or liberal approach in a unanimous judgment in Bekker v Naude (supra) in which the so-called “asinine” arguments have been accepted and applied! Such are the vagaries of statutory interpretation. What follows is an account and evaluation of this decision; but first it will be useful to set out the provisions of section 2(3).