The Court of Appeal has upheld the decision of High Court Judge Justice Godfrey Nthomiwa suggesting that Member of Parliament (MP) for Gaborone Bonington North and Minister of Nationality Immigration & Gender Affairs Annah Mokgethi be imprisoned following suspicions that she may have stolen from a dead man.
Handing down Judgement, Court of Appeal President Justice Ian Kirby who described the case as a matter “with a sorry history” said “Certainly this Court has a clear duty in matters properly before it, to ensure compliance with the law and so to uphold the rule of law.”
Said Kirby: “It will not remain supine when disobedience to or contempt for the law is evidenced in a matter before it. So, too, in this case, and that is another reason by the decision of Nthomiwa J should be endorsed.”
Nthomiwa had ordered Mokgethi to comply with the law or risk being imprisoned but she decided to appeal the judgment.
Justice Kirby last week directed that, “the Order of the Court below (High Court) be complied with within 30 court days of the handing down of this judgement.”
Identified in court records as Annah Motlhagodi, the minister was cited for failing to account for the Estate of one Abdul Joseph who died in 2012. The MP was a practicing attorney before ascending to Cabinet as the Executrix of Abdul Joseph’s estate.
Justice Nthomiwa had found that Mokgethi has been violating the Administration of Estate Act for more than six years.
The judge in his judgement had stopped shot of accusing the minister of trying to hide the deceased man’s assets.
Justice Kirby this week agreed with Justice Nthomiwa observation that “the Order of Nthomiwa J was properly made in terms of Section 109 (1) of the Act and it is to be obeyed and executed notwithstanding the outcome of any parallel or pending proceedings.”
He added that, “This is undoubtedly in the interest of the Estate, and of any or potential beneficiaries or creditors of the Estate, and of any future Executor. Most importantly, it will demonstrate obedience to the law, while fulfilling this Court’s obligation also to uphold the law.”
In his judgment, Justice Nthomiwa had also found that, “To day the estate has been under administration for almost 7 years. It does appear to me that 2nd Respondent (Mokgethi) thought she could selectively report assets to the Master. This cannot be so as executor is obliged to account for the estate and all its assets including newly discovered assets.”
Kirby also found that pending its finalization, which is yet to happen, the Estate still remains in the hands of the executrix.
Justice Nthomiwa said it was not in dispute that the inventory provided by Mokgethi was “inaccurate in a significant way. She admitted so and undertook to correct it which she has not done notwithstanding the requirements of the law.”
The judge had ruled that Mokgethi should within 30 days “of the granting of this Order furnish the Master of the Court and the Applicant a full and current accounting in respect of the assets and liabilities of Deceased Estate of late Abdul Joseph and shall provide details of all transactions relating to the Estate from the date of issue of the Letters of Administration up to the date of accounting and shall provide an updated an accurate inventory of the Estate.”
The High Court had also among other things ordered Mokgethi to: “Provide details of trades or transactions in respect of any securities or shares forming part of the Estate from the date of the issuing of the letters of administration to the date of the accounting, together with copies all supporting by vouchers.”
The late Abdul’s granddaughter Dawn Mpho Masenya through her lawyers, Armstrongs Attorneys had dragged Mokgethi to the High Court accusing the minister of understating the estate and refusing to render an account of the estate’s inventory.
Masenya had asked the Court to compel Mokgethi to render an account of the estate under the Executrix Act. An executrix is a female executor of a will.
Some of the offences relating to the violation of the Act in Botswana carry prison terms not exceeding six months.
Therefore, Kirby’s judgement effectively means that Mokgethi would be imprisoned for six months if she does not comply with Nthomiwa’s judgment.
Justice Nthomiwa had also rapped the minister on the knuckles for violating the Act.
“What became of concern was that several requests in writing were made to the Executrix. It was following the numerous requests for accounting by the Master to the 2nd Respondent (Mokgethi) and her failure to do so that the Applicant (Masenya) filed an application to compel her to, in her official capacity as Executrix of the deceased Estate,” Nthomiwa had noted in his judgement. According to Nthomiwa, Masenya had observed a clear defiance by Mokgethi to account to the Master the status of the estate.
“Although none of the parties brough this to the fore this was a serious matter which the Master ought to have taken up with the 2nd Respondent in terms of Section 34b (v) of the Administration of Estate Act,” said Nthomiwa.
The Act empowers the Master to remove an executor from office if he or she fails to perform satisfactorily any duty imposed upon him or her.
Masenya had also enquired about the estate account particularly whether Mokgethi opened one as she was required to by the Act.
Justice Nthomiwa had noted that as a demonstration of the seriousness of this requirement the Act states that “Anyone who fails to comply with the provisions of subsection (1), (2) and (3) or any requirement or direction of the Master under subsection (4) (5) shall be guilty of an offence and liable to a fine not exceeding (100 or to be imprisonment for a term not exceeding six months or to both.”
Justice Nthomiwa had further noted that a lot of time had lapsed from the time Mokgethi was appointed, and the instructions from the Master to account and requiring some accounting or updating from the Master to account and requiring some of accounting or updating of the accounts of states.
He had said it was also undisputed that Mokgethi has to date not accounted as directed by the Master notwithstanding the deadline she was given.
Nthomiwa had also found that Mokgethi has also not accounted for the Barclays Bank Shares which she sold.
According to court records, Abdul passed away on 7th July 2010 and Mokgethi was soon thereafter issued with a letter of administration.
“To day the estate has been under administration for almost 7 years. It does appear to me that 2nd Respondent (Mokgethi) thought she could selectively report assets to the Master. This cannot be so as executor is obliged to account for the estate and all its assets including newly discovered assets,” said the judge.
He had said it is not in dispute that the inventory provided by Mokgethi was inaccurate in a significant way. She admitted so and undertook to correct it which she has not done notwithstanding the requirements of the law, the judge found.
Mokgethi’s position was that Masenya lacked locus standing (the right or capacity to bring an action or to appear in a court) arguing that for a plaintiff to participate in a case he or she must have an adequate interest or direct interest in the relief sought.
Masenya’s position is that she has sufficient interest in the matter, Nthomiwa said.
“The applicant herein seeks not to protect the interest she may have in the estate of her late grandfather but also those vested in her by the Act in terms of her interest in the estate…” the judge said.
He said: “In my judgement, the ambit of an interested person goes beyond just creditors and the heirs. It also covers persons with interest like the Applicant. In my judgement, there is good reasons why the deceased estate ought to be protected. It is because the 2nd Respondent has not accounted for the estate for the past six and seven years. “
Nthomiwa had also accused Mokgethi of defying the Masters. He said Masenya falls in the category of “persons with interest…”
