Thursday, June 30, 2022

Minister Mokgethi scores victory in deceased client’s estate case

Cabinet Minister Anna Mokgethi last week won a case in which a granddaughter of the late Abdul Joseph had instituted contempt proceedings against her at the Court of Appeal (CoA).

Mokgethi, who through her law firm is the executrix for the deceased Joseph’s estate, stood accused of failing to comply with the High Court’s order to furnish the Master with a full report of Joseph’s estate. 

After being dissatisfied with Mokgethi’s management and level of accounting on the affairs of the estate, granddaughter Dawn Mpho Masenya launched proceedings in the High Court, with the blessing of the Master, calling upon Mokgethi, under section 109(1) of the Administration of Estates Act, to provide a full account of the Estate.

Mokgethi had opposed the application on various grounds, one of which was that Masenya, being Joseph’s granddaughter and daughter to his own deceased daughter, did not have the right to institute the proceedings as she was not a beneficiary to the estate under the will and that her rights were still to be determined in the action challenging the validity of the will.

Joseph had only two children, Masenya’s mother and her sister Shereen Pandor. Masenya’s mother passed on before her father, Joseph.

The High Court disagreed with the Minister, finding that Masenya had that right and was entitled to the order she sought. It therefore issued an order in favor of the granddaughter ruling among others that

Mokgethi, within 30 calendar days of the granting of the Order, furnish to the Master of the High Court and Masenya, a full and current accounting in respect of the assets and liabilities of Joseph’s Estate Number and provide details of all transactions relating to the Estate from the date of the issue of the Letters of Administration up to the date of accounting, and also provide an update and accurate inventory of the Estate.

Mokgethi however, being dissatisfied with the decision of the High Court, appealed to the CoA that Masenya was not an interested person within the contemplation of section 109 of the Administration of Estates Act and therefore had no right to institute the proceedings in the court High Court.

The Minister’s appeal was unsuccessful, with the CoA holding that Masenya did indeed fall within the contemplation of section 109(1) of the Administration of Estates Act. Consequently the CoA issued an order on August 6, 2021 dismissing the appeal saying the order of the High Court had to be complied with within 30 days of the handing down of the CoA judgment.

In the meantime, Masenya had, while the appeal was still pending, instituted contempt proceedings against Mokgethi, arguing that the Minister was in contempt of court for having failed to comply with the order of the High Court within the 30 day period stipulated therein. This was despite Mokgethi having appealed the High Court’s ruling.

By giving Mokgethi 30 days to comply with the order of the High Court, the CoA in effect extended the period given by the High Court by the number of days computed from the 6th August 2021.

Masenya’s contempt application against Mokgethi to the CoA however was filed in spite of her very own application to the High Court seeking the same relief. The contempt ruling on the matter at the High Court has been set for August 2022. The CoA consequently ruled against Masenya in that the court could not decide on a matter that was still pending before the lower Court. Mokgethi’s lawyers Bogopa & Manewe Attorneys raised a point of law challenging whether the CoA has jurisdiction to hear contempt proceedings as a court of first instance. Mokgethi’s lawyers Basimane Bogopa and Busang Manewe argued that

there were currently proceedings pending before the High Court instituted by Masenya against the Minister for contempt of the same court order which is the subject of the present contempt proceedings and that the dispute being before another court the CoA proceedings are “vexatious” and should be stayed pending the outcome of the High Court proceedings.

The CoA panel unanimously agreed with Mokgethi‘s attorneys that “jurisprudential policy dictates that this Court should ordinarily not deal with matters as both a Court of first instance and as one of last resort.”

Masenya’s application for contempt of a court order was consequently struck out with costs of two attorneys. The matter was before a three judge panel of Justices Isaac Lesetedi, Lakhvinder Singh Walia, and Mercy Garekwe.

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