Monday, August 10, 2020

UDC in line for big a score as Minister faces imprisonment

Botswana Democratic Party (BDP) leadership is hoping for the best and bracing for the worst as party Member of Parliament for Gaborone Bonington North and Minister of Nationality Immigration & Gender Affairs Annah Mokgethi faces possible imprisonment following suspicions that she stole from a dead man.

Mokgethi’s imprisonment would send Botswana politics into a tailspin. It would give Umbrella for Democratic Change (UDC) President Duma Boko another shot at a parliamentary seat and possibly rock the power dynamics inside the opposition coalition.

With Boko outside parliament, UDC vice president and president of the Botswana Congress Party (BCP) Dumelang Saleshando is now the official leader of opposition.

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.  Mokgethi who was a practicing attorney before ascending to Cabinet is the Executrix of Abdul Joseph’s estate.

Justice Godfrey Nthomiwa of the High Court found that Minister Mokgethi has been violating the Administration of Estate Act for more than six years. 

The judge stopped shot of accusing the minister of trying to hide the deceased man’s assets.

“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.

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 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 Court 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 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 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.

Justice Nthomiwa 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 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 also enquired about the estate account particularly whether Mokgethi opened one as she was required to by the Act.

Justice Nthomiwa 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 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 said it was also undisputed that Mokgethi has to date not accounted as directed by the Master notwithstanding the deadline she was given.

Nthomiwa 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 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 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.

Applicant’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 also accused Mokgethi of defying the Masters. He said Masenya falls in the category of “persons with interest…”

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