In
the High Court of Swaziland
Civ.
Case No. 1352/93
In
the matter between:
Phumzile
Manyatsi 1st Applicant
Thulie
Manyatsi 2nd Applicant
Nompumelelo
Manyatsi 3rd Applicant
and
Jameson
Gudu Vilakati N.O. 1st Respondent
Fikile
Hlatshwako 2nd Respondent
James
Manyatsi 3rd Respondent
The
Master of the High Court 4th Respondent
CORAM:
Hull, CJ.
FOR
THE APPLICANTS Mr. S. Dlamini
FOR
THE RESPONDENTS Mr. Fine
Judgment
(14/12/93)
The
applicants seek an order setting aside as null and void, and of no
legal effect, a will made by the late Ben Babili Manyatsi.
It
is not in dispute that the document, consisting of two pages, was in
fact made by Mr, Manyatsi as a will. The ground on which the
applicants seek to set it aside is that the two attesting witnesses
did not sign both pages.
It
is not in dispute that Mr. Manyatsi himself did append his full
signature to both pages.
In
an opposing affidavit, Mr. Nkosinathi Nkonyane, who is an articled
clerk with the legal firm of Douglas Lukhele and
2
Company,
deposed that at Mr. Lukhele's offices, he the deponent and Sinethemba
Edna Khumalo signed both pages too, as witnesses, in the presence of
Mr. Manyatsi and of each other. It is apparent from the document,
consisting of two separate sheets, however, that whereas they
appended their full signatures as witnesses on the second page, they
only put their initials on the first page; and Mr. Nkonyane confirmed
this. It also appears, incidentally, that in addition to their full
signatures on the second page, the witnesses also added their
initials again, at the foot of that page.
For
the applicants, Mr. Dlamini therefore submits that the will does not
comply with section 3(1) of the Wills Act No. 12 of 1955, which
provides as follows:
"3.(1)
Subject to this Act no will executed on or after the first day of
March, 1955, shall be valid unless -
"
(d) if the will consists of more than one page, each page is...signed
by the testator ... and by such witnesses...".
In
support of his submission, Mr. Dlamini cites Mellvill and Another NNO
v. The Master and Others (1984)3 SA 387, a decision of the Cape
Provincial Division in which it was held that for the purposes of
section 2(a)(iv) of the Wills Act, (7 of 1953), the initials of a
witness did not constitute a signature and that an instrument thus
initialled was not a valid will for the purposes of the Act.
As
the court itself in Mellvill noted, in a detailed consideration of
the South African authorities, there has been an apparent divergence
of opinion over the years in the cases decided there.
Thus
in Van Vuuren v. Van Vuuren (1854) 2 Searle 116, the majority held
that initials did not constitute a signature. Bell J., dissenting,
thought otherwise. He took the view that if (as it had been held in
England in respect of the
3
Wills
Act of 1837, on which the Ordinance in question was based) a mark
would suffice as a signature, then he could see no reason why
initials would not also be enough.
In
two subsequent cases, referred to in the judgment in Mellvill , i.e.
in Troost v. Ross, Executrix of Hohenstein (1863) 4 Searle 211 and in
Re Le Roux (1884) 3 SC 56, it was held that the marks of a testator
and a witness respectively sufficed as signatures. Then in In re
Trollip (1895) 12 SC 243, the court overruled Van Vuuren, holding
that if a mark sufficed, initials were a fortiori sufficient. In
reaching its decision, the court referred to English decisions to the
same effect.
Having
referred to these cases on pre-Union enactments in South Africa, the
Court in Mellvill then turned to consider the reported decisions on
the Act of 1953.
In
Ex parte Goldman and Kalmer NNO 1965 (1) SA 464 (W), it was held that
the mark of a testatrix constituted her signature and in Jhajbhai and
Others v. The Master and Another 1971 2SA 370(D) that the printing by
a witness of his full name also did so.
However
in Dempers and Others v. The Master and Others (1) 1977 4 SA 44
(SWA), the court decided that the initials of witnesses could not be
held to be signatures as such and held that the will in issue was
accordingly invalid.
This
decision was not followed in Ex Parte Singh 1931 (1) SA 793 (W). In
that case it was held that a testator's initials, being intended to
constitute his signature, did comply with the requirements of the
Act.
In
preferring Dempers to Ex Parte Singh, the court in Mellvill took the
view that the 1953 Act drew a clear distinction between a signature
and a mark. In the definition section,
4
it
provided that the word "sign" included in the case of a
testator, but not in the case of a witness, the making of a mark. The
Act further provided that certain other formalities were to be
observed when a testator signed by-making a mark.
Both
of these requirements are also found in the Swaziland Act.
The
court in Mellvill, applying the approach that to the extent that an
Act does not define a word, and its context does not make it clear
that it is being used in a different sense, and it has not acquired a
different meaning in legal nomenclature, the word is to be given its
ordinary meaning, came to the view that in ordinary language initials
do not amount to a signature.
It
then considered the purpose of the 1953 Act in stipulating that wills
must as a matter of formality be signed by testators and witnesses,
observing that (to put it shortly) this was to identify them and to
eliminate as far as practicable the perpetration of fraud. It noted
that it is normally easier to identify a testator or a witness by his
full signature rather than by his initials. It also attached weight
to the introduction of special provisions in the 1953 Act for the
signing by a testator by means of a mark, and rejected as not
material the views expressed in Ex Parte and Jhajbhai to the effect
that it was the intention as such, of the testator (or the witness)
that was the governing factor (i.e. if on the evidence, it was his
intention by affixing his initials to signify that he was making or
attesting the will).
As
far as the purposes of section 3(l)(d), read with the definition
"sign" in section 2, of the Wills Act 1955 of Swaziland are
concerned, I adopt with respect the statement of those purposes given
in Mellvill in relation to the South African Act of 1953 (which is
substantially the same in that regard as Swaziland's statute).
5
However,
I am unable, with respect, to agree with the court in Mellvill as to
the ordinary meaning of the words "sign" and "signature".
In ordinary language, I would myself understand a signature to
consist, at the choice of the person giving it, of his name in full,
his Christian initials and his surname, or simply his initials.
The
Concise Oxford Dictionary, 7th Edition, to which I have access,
supports this understanding.
"Signature"
is there defined as meaning "1. Act of signing document etc. 2.
person's name or initials or mark used in signing....", and
"sign" has a corresponding definition.
I
think myself that in ordinary usage it in fact goes further than
that. There is an element of personal idiosyncrasy in a signature. A
man may see fit to sign by using his surname alone or even, I think,
in the royal manner by his Christian name alone.
Ordinarily
therefore, I consider that a signature may consist at least of a
conventional signature, or initials alone, or a mark alone. Under the
Wills Act 1955 a mark alone is not however sufficient in the case of
a witness. That is a statutory modification of the ordinary meaning
of "to sign" and its cognate expressions. No doubt a reason
for that is that while the legislature acknowledges the need to
facilitate the making of wills by testators, it considers that
stricter requirements are reasonable and desirable for persons acting
as witnesses. I do not think it follows at all, however, that because
the statute precludes the signature of a witness by means of a mark,
it also precludes his signature by means of initials alone. If a mark
is a sufficient signature, then I agree that a fortiori initials must
be so.
The
converse, however, is not true.
For
myself, I do not attach any significance, in the context of the
sufficiency of initials as a signature, to the fact
6
that
the 1955 Act (as does the 1953 South African Act) makes special
provisions for marks. With respect, the expression "special
provision" in the context of the South African Act, seems to me
to mean, and only to mean, first that as a matter of legislative
policy a mark will not do as a signature for a witness and, secondly,
that where a testator himself signs by means of a mark, certain
additional formalities must also be observed. I do not think it means
anything more than that, and I do not think it has any real
implications as to the adequacy of initials, per se, as a method of
signature.
I
am also not persuaded myself that the courts in Ex Parte Singh and in
Jhajbhai were wrong in identifying the intention of the signatory as
relevant. With respect, I think it is very relevant. If a person
signs a will with what in ordinary parlance amounts to a signature,
and that form of signing is not precluded (as in the case of a mark,
in respect of a witness) by the terms of the Act, and in so signing
he intends to signify that he is making or attesting the will, then
it seems to me that he complies fully with the letter and the
underlying purposes of section 3(1)(d).
I
therefore conclude that this application fails and it is accordingly
dismissed, with costs to the respondents.
DAVID
HULL
CHIEF
JUSTICE
