Times Of Swaziland: COURT ALLOWS CELLPHONE MESSAGES IN EX-EBIS DIRECTOR’S ESTATE

COURT ALLOWS CELLPHONE MESSAGES IN EX-EBIS DIRECTOR’S ESTATE
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Mlondzi Nkambule on 13/02/2025 09:50:00


MBABANE - In a peculiar move, the court has directed the use of cellphone
messages for the distribution of the estate of the late former EBIS Director,
Welile Dlamini. This decision marks a significant departure from traditional
estate distribution methods and raises interesting questions about the validity
of digital communication in legal matters. The order was issued by High Court
Judge John Magagula and respondents in the matter were the master of the High
Court and attorney general. Dlamini, who passed away in August 2024, left behind
an estate valued at E2.1 million, comprising cash and assets, including a
three-bedroom house, a car and funds in various bank accounts.
According to WhatsApp messages and an unsigned will purportedly written by
Dlamini, he bequeathed most of his assets to his nephew, Philakwezwe Khumalo,
who had been his caregiver for many years.  These messages, which were
previously rejected by the master of the High Court, have now been deemed
admissible by the court, paving the way for the estate to be distributed
according to Dlamini’s wishes, as expressed in his digital communications. In
his court application, Khumalo mentioned that the former director of Eswatini
Broadcasting and Information Services’ (EBIS) parents and siblings passed away
several years ago.
Paralysed
Khumalo pointed out that his uncle had a disability, paralysed for most of his
life and relied on a wheelchair for mobility. “I lived with my uncle, taking
care of him, considering his confinement to a wheelchair. Needless to say, he
required constant attention and medical care due to his ill-health,” Khumalo
submitted. He further contended that his uncle, being elderly and with
disability, needed constant assistance. Khumalo described himself as his
uncle’s nephew and right-hand man for a long time. The applicant mentioned
that his late uncle’s estate was reported to the master of the High Court.
According to Khumalo, during his lifetime, his uncle prepared a last Will and
testament outlining how his estate should be distributed.  The master of the
High Court rejected the will on the grounds that it did not comply with the
requirements of the Wills Act of 1932 and advised Khumalo to seek a declaratory
order from the High Court. Khumalo claimed that his uncle executed the Will on
August 5, 2024, before a lawyer. In the purported Will, which is attached to the
court documents filed by Khumalo against the Master of the High Court, Dlamini
allegedly wrote:
“I nominate and appoint Philakwezwe Khumalo to be the executor and inheritor
of my estate as a token of appreciation for looking after me while I was alive.
My family abandoned me when I needed them most after an operation that left me
confined to a wheelchair due to the negligence of doctors at Chris Hani
Baragwanath Hospital in South Africa.” The impugned Will also highlights
Khumalo’s role as a companion, particularly in sharing Dlamini’s passion for
music. It states: “Khumalo, a music lover, drove me to Johannesburg on
numerous occasions to attend music shows by various artists, including Brian
Culbertson, the O’Jays, Earl Klugh, Fourplay, Bebe and Cece Winans, Gladys
Knight, Hugh Masekela, and Salif Keita.”
The Will concludes with a heartfelt message: “Khumalo, please continue to look
after the vulnerable members of society. May the Lord God Almighty bless you
abundantly.” According to a legal expert, when a person dies without a valid
Will, they are said to have died intestate. In such cases, the distribution of
their estate is governed by the laws of intestate succession, which are based on
Roman-Dutch law in Eswatini. He said: “These laws typically prioritise close
family members, such as spouses and children, as the primary beneficiaries of
the estate. If there are no surviving close relatives, the estate may be
distributed among more distant relatives or, in some cases, may escheat to the
State.”
In this case, he said the court’s decision suggests a willingness to adapt to
the changing realities of communication and to recognise the potential for
digital messages to convey testamentary intentions. He said this decision could
have far-reaching implications for estate law in Eswatini and may serve as a
precedent for future cases involving digital Wills. “The High Court’s
decision to admit the WhatsApp messages as evidence of the deceased’s
testamentary intentions represents a significant development in Eswatini’s
estate law. Traditionally, strict adherence to the formalities of the Wills Act
has been required. However, the court’s decision suggests a move towards a
more flexible approach, recognising that testamentary intent can be expressed in
various forms, including digital communication,” he said.