Former Minister and High Court Judge Unity Dow finds herself in a web of controversy as the case in which Minister of Immigration Annah Mokgethi is accused of failing to account for a dead man’s estate branched off into a new dimension.
The web of controversy escalated last week before Justice Rainer Busang of Lobatse High Court as lawyers representing the late Abdul Joseph’s granddaughter and some family members locked horns on key issues such as the admissibility of another will (2003) as evidence and whether Dow could be summoned to give oral evidence in relation to the discovery of the same will other than the one (2010) that saw Mokgethi being ordered by the High Court and Court of Appeal to account for Joseph’s estate.
Reeta Keevil of Armstrongs Attorneys was the first to draw blood as she told the Court that they intend to summon Dow so that she could testify in relation to the discovery of the other will. She said her client did not know who had concealed the will and therefore Dow was the person better placed to explain how she discovered it.
“Only Dr Dow who has discovered the will can speak to how it was discovered. That is why it is necessary that she be summoned to come and testify,” she said.
But Ofentse Khumomotse of Khumomotse Law Practice who represents some family members among them Joseph’s daughter Shereen Pandor told the Court that they rejected the application by Masenya’s lawyers to summon Dow to give oral evidence.
Khumomotse said Dow was a former legal representative of Shereen Pandor and other family members (his clients). He added the first difficulty they have as defendants was the procedure that Masenya and her lawyers have adopted.
He argued that application by Masenya seeks the court to endorse what he called ethical murder.
“We cannot have a document being placed into evidence when we do not know the circumstances of its sources. The provisions of order 28 of the High Court which they have invoked caters for circumstances where the parties can come to court and say here is a lacuna; we are clueless as to how to transcend this problem. But they know what they want. They want the Will to be to be availed. That is why this procedure is inappropriate,” he said.
He further argued that summoning an erstwhile attorney as a witness in a matter involving his or her erstwhile clients or where she had given instructions amounts to unethical conduct.
“Dr Dow is disqualified as a witness by section 10 of the evidence in civil proceedings act,” Khumomotse.
Meanwhile in the same application placed before the Court, Keevil stated that the 2003 Will was discovered by Dow on 28th October. She immediately notified the current Executor (for Joseph’s estate) and provided the document to him.
“The existence of another Will other than the impugned 2010 document, was revealed to the deceased family in 2012, prior to Mr Joseph’s deaths by the 3rd Respondent, Mrs. Shareen Pandor). However, its existence was subsequently denied in the action proceedings,” she argued.
Keevil said Masenya has pleaded the existence of this Will. “It is our view that the terms of the 2003 Will, and in particular clause 3, render the 2010 Will invalid, regardless of the issues of forgery and or the testator’s mental capacity upon which the challenge to the 2010 Will is partially based. The 2003 Will is a joint and mutual Will creating a usufruct in favour of the survivor of the spouses. Mr Joseph was the survivor,” she said.
Masenya, through her lawyers also prays that the High Court gives “directions that she places the recently discovered mutual Will attested in 2003 of the late Mr Abdul Joseph and the late Mrs. Doreen Joseph in evidence before the Court and the Defendants within 10 Court days of this direction being given.”
She also wants the Court to give “directions that the witness summary of the Honorable Dr Unity Dow, who discovered the 2003 Will, be delivered within 10 Court Days of this direction being given.”
Opposing the application, Khumomotse stated in court papers that the application of direction is riddled with many unanswered questions which must rebound against Masenya’s case.
“Under what circumstances was Unity Dow entrusted with this Will if at all, by who and when. Why this Will was never mentioned in any of the pleadings filed for an on behalf of the 3rd -7th defendants by Dow & Associates at the time they acted for the defendants?” argued Khumomotse. He said these questions are not for the Court to speculate them but ought to be addressed and dealt with by Masenya who seeks to introduce the Will.
“We submit that the Plaintiff (Masenya) has made no attempt to state why Unity Dow, a former attorney (for) the 3rd -7th Defendants would be competent as a witness in this matter,” he said. He also added that “The Plaintiff fails most importantly to state why the pleadings prepared by Dow & Associates make no mention of this Will rendering its authenticity questionable and requiring a diligent inquiry and circumspections before it can be admitted.”
Justice Busang granted the parties an opportunity to file supplementary court papers.