Justice Reiner Busang has ordered that former High Judge Unity Dow’s witness summary of evidence relating to a mutual will of the late businessman Abdul Joseph and his late wife Doreen be filed with the Court.
The application by Joseph’s granddaughter Dawn Masenya was filed when the trial in the main action in which she is challenging another will of her late grandfather drawn by the Minister of Nationality, Immigration and Gender Affairs Anna Mokgethi was still in progress.
Masenya’s application seeking an order that Dow’s evidence be tendered before the Court was opposed by among others, Joseph’s children on the basis that it was incompetent as there exists a remedy to Masenya.
They argued that the application was woefully deficient as it omitted to chronicle circumstances as to the source and procurement of the Will in question.
Court documents show that a plea prepared and filed by the defendants (among them Joseph’s children), at the time assisted by Dow and Associates distanced itself from the discovered Will.
Court records also show that Doreen Joseph died on the 23rd July 2008. The couple were married in community of property.
They also show that Masenya as of the 9th November 2021 wrote a letter to the master of the High Court “pleading the existence of another will which Mokgethi denied.”
After the disclosure of the 2002 Will, Masenya’s attorneys addressed a letter to Joseph’s children on the 9th November 2021 stating as follows; drawing the Master of the High Court and children of Joseph’s attention to the joint will which created usufruct in favour of the surviving spouse and nominated the ultimate beneficiaries.
She also drew their attention to evidence to be given of the 3rd defendant’s (Deon Joseph) knowledge of the 2003 Will; proposing the way forward in terms of the 2003
will with adjustments in respect of the benefits already received. she also informed them that she would make an application to bring the 2003 will to the attention of the court.
According to court papers, they did not reply her letter and she filed an application for directions on the 12th November 2021.
Court papers also state that it has always been Masenya’s case that there is another will and that she pleaded extensively in her particulars of claim.
Justice Busang noted that Joseph’s children and Mokgethi had “at all material times expressly denied the existence of the second Will.”
Masenya’s submission through her attorney’s was that the discovery of the 2003 Will is new evidence which could not be obtained during trial despite diligent search. The 2003 Will according to Masenya’s submissions constitutes evidence that was not available to the party that was seeking to tender it and should be admitted as new evidence in the interest of justice.
But Joseph’s children argued that Masenya’s application fall short of disclosing the underlining problem or showing that the rules of court provide no alternative remedy for her.
Busang said: “There is no doubt that the 2003 Will and the evidence of Dr Dow were not counterplated by the final pre-trial order, and in terms of Order 42 Rule 10, the evidence in respect of the will and Dr Dow’s evidence were not available to either party at trial.”
He added:“I cannot conceive of another option that was available to the plaintiff to bring hitherto unavailable evidence to trial other than through Order.” Court records show that the defendants (Joseph’s children) filed supplementary submissions the substance of which is legal professional privilege, in terms of which communication between attorneys and their legal advice are protected.
“The submissions as I understand it is that Dr Dow obtained the 2003 Will on a privileged occasion of attorneys and client and she cannot firstly be called as a witness and secondly to disclose or speak to circumstances matter which the 2003 will was discovered by herself,” said Busang.
He added: “I am not convinced that there is merit in these submissions even if it represents the absolute and true position of the law because there is no evidence about the circumstance under which Dr Dow came to possess or discover the will.”
Directing that the summary of Dow’s evidence in respect of the discovered 2003 Will shall be filed with the Court, Busang said “ the 2003 Will constitutes new evidence which it would be in the interest of justice to have it exhibited and admitted in evidence.”
