Landmark ruling expected in appeal over Judge Mokgoro’s electronically signed will

A PIVOTAL judgment relating to testaments signed by means of digital communication is expected to be handed down in the Northern Cape High Court on January 30, following an appeal challenging the validity of a last will and testament that was signed electronically by the late Constitutional Court Judge Yvonne Mokgoro.

Kimberley-born Mokgoro died on May 9, 2024, after sustaining injuries in a car accident involving a truck and a Mercedes-Benz in which she was travelling with her life partner, David Mmelesi, in April 2023.

Mmelesi is also standing trial in connection with her death. He claimed that he stopped to assist someone lying in the road and made a U-turn before the collision occurred on the N12 between Kimberley and Warrenton. 

An accident reconstruction analyst testified that both drivers involved in the accident were responsible for the crash.

Dispute over two wills

Mokgoro left two wills. One, drafted in 2014, bore a handwritten signature and bequeathed her estate – including a share in her 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.

Her son, Ithatheng Mokgoro, later discovered a second will signed electronically in 2021. This document stipulated that the Magersfontein property should be shared equally among her four children, while the Jeep Wrangler was to be given to Mmelesi. The second will also amended the 2014 document, which had incorrectly referred to her daughter, Gaobolelwe, as her “sister”.

Mokgoro’s children approached the Master of the High Court in May 2024 to accept the will dated 2021.

The court accepted an email addressed to her two witnesses, Andiswe Oliphant and Florence Leshabane, as evidence of her intentions. In the email, she stated:

Dear Andi, Mpho

I trust you’re both well. May I ask the two of you to do me a very special and personal favour, which is to kindly sign as witnesses my last will and testament attached below.

First, Andiswe will attach my electronic signature at the appropriate spaces identified as ‘testatrix’ on each page. There is also identified spaces to be signed by each of the two witnesses required. For consistency please let Andiswe kindly sign as the first witness on each page and Mpho will do so as the second witness. Then kindly return the document to me.

Please do not see my humble request as an undue burden because I have done all I can to make my last will and testament as fair and as uncomplicated as I can. That is why it is so brief.

Thank you for doing it.

With warmest regards to and utmost trust I have in both of you,

Much love,

YM

In a judgment handed down on August 1, 2025, Judge Lawrence Lever directed the Master of the High Court to accept the electronically signed will and ordered Mmelesi to pay the legal costs.

Matter on appeal 

The legal representative for Mmelesi, Advocate Boitumelo Babuseng, requested that the matter be referred to the Supreme Court of Appeal should the application for leave to appeal be granted. 

He argued that an electronically signed will was not valid under the Wills Act.

“This case is a first of its kind in South Africa, as it will set a precedent for case law for all wills signed before the digital era. The only other case law that exists pertains to an unsigned testament,” he said.

Babuseng added that his client was an unemployed pensioner who could ill afford to pay the legal costs.

The legal representative for Mokgoro’s children and grandchild, Advocate Sharon Erasmus, argued that the electronically signed document clearly expressed Mokgoro’s intentions. 

She also maintained that Mmelesi should be held responsible for the legal costs.

“He is hardly an impoverished pensioner, as he is entitled to half of a luxury house and a luxury motor vehicle. He is not an average pensioner,” she noted.