OARABILE MOSIKARE
editors@thepatriot.co.bw
Minister of Nationality, Immigration and Gender Affairs and attorney Annah Mokgethi is in deep trouble as she now battles the discovery of another will in the same matter in which she is failing to account for missing millions of her late client many years ago.
In August 2021 a complaint was launched with the Law Society of Botswana (LSB) after serious issues of misappropriation funds were raised against her. In the same month the Court of Appeal (CoA) dismissed her application to reverse a High Court decision forcing her to give proper accounting records to what happened to the late Abdul Joseph’s multimillion Pula estate.
That followed a marathon legal tussle between Mokgethi and Joseph’s granddaughter Dawn Masenya over this aforementioned estate. There is another will and by way of notice of motion filed on November 12, 2021, Dawn Masenya filed an application for direction before Justice Ranier Busang at Lobatse High Court. The application arose from a letter dated November 2, 2021, authored by the executor of the estate attorney Lesedi Moahi.
Moahi said he was served with a will by former High Court Judge Unity Dow on October 29, 2021 in his capacity as the executor of the said estate. “During our discussion leading to service of the said will, she indicated to me that she has not been aware at all material times that she has the said document in her possession which she might have gained during her stint involvement in the matter,” Moahi said.
Masenya consequently delivered an application for directions asking the court to direct that she place the recently discovered mutual will, as attached attested in 2003 of the late Abdul Joseph and the late Doreen Joseph in evidence before the court and the defendants within 10 court days. She also wants the court to give direction that the witness summary of Dow, who discovered the 2003 will, be delivered within 10 court days of this direction being given.
On November 16, 2021, the defendants Shereen Pandor, Wendy Joseph and Nadin Pandor through their attorneys Khumomotse Law Practice delivered their opposition of the application for directions and subsequently, their detailed answer to the application for directions. They argue that the Order 28 application is in the circumstances incompetent as there exists a remedy to Masenya.
“The Application is woefully deficient as it omits to chronicle circumstances as to the source and procurement of the will in question. The plea prepared and filed by the defendants, at the time assisted by Dow & Associates distances itself from the discovered will. Consequently was there concealment of the will by defendants erstwhile attorneys, officers of the Court, whose duty foremost is to the Court? There being absent a full account of the origin of the will, circumstances of its entrusting with defendants erstwhile attorneys and by whom, no case for production of the will has been made out. Accordingly the application for directions stands to be dismissed with costs,” Khumomotse Legal Practice argued.
The attorney argued that in the circumstances three issues arise for determination whether the application for directions is competent or is an invitation for the court “to enter the arena of litigation”. Other issues that arise for determination by court is whether Masenya has made out a case for admission of the ‘discovered will’ into evidence and whether Dow is a competent witness to be called in these proceedings, regard being to her admitted erstwhile involvement in this matter as the defendants’ attorney.
“Even if the plaintiff’s ill-conceived application for directions was to be entertained it still remains a proper case to be dismissed on the basis that the production of the ‘discovered will’ is not accompanied by an explanation as source, circumstances of its discovery, why it was excluded,” attorney Ofentse Khumomotse argued.
He said most significantly though Masenya has taken the most gratuitous view of her intended application for directions in hoping to discover a will without presenting to the court evidence to its relevance, source, authenticity, exclusion from the initial pleadings and subsequent discovery.
“We submit that in accordance with the principle that a party must stand to fall by his pleadings this application stands to be dismissed as not cogent basis let alone evidence has been presented necessitating production of the will. The necessity of a detailed application accompanied by an affidavit (which is not available under Order 28) is the accepted or common cause fact between the parties that the source of the document being Unity Dow was initially the Attorney for the 3rd – 7th defendants.”
He submitted that the application for directions is riddled with 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 and on behalf of the 3rd -7th defendants by Dow & Associates at the time they acted for the defendants. These questions are not for the Court to speculate them but ought to be addressed and dealt with by the Plaintiff who seeks to introduce the will,” Khumomotse argued. The ruling on the application for directions has been reserved.
The background of the case is that Mokgethi was issued with a letter of administration of this estate soon after the demise of Joseph on July 7, 2010. He had two daughters and was survived by one daughter Shereen Pandor who had four children. His deceased daughter, Yolanda was survived by Dawn Masenya and two siblings.
Masenya was aggrieved after herself and siblings inherited nothing from the estate after Pandor and her children inherited the whole of Joseph’s considerable estate. Thereafter Masenya instituted a lawsuit to set aside the will on the grounds that Joseph was of unsound mind or lacking mental ability to understand the nature, consequences, and effect of a situation or transaction at the time of its execution, and that it might have been forged.
The proffered final liquidation and distribution account reported the estate as being valued at P26, 199,724.03 down from P31, 760,259.13 listed in the initial inventory, which remains to be distributed. The High Court had ruled that since there was an interdict of the distribution, the estate should still be intact, subject to legitimate accretion or diminution, in the hands of and under the stewardship of the executrix. It was found that the initial inventory filed was materially incomplete, and that the final liquidation account prepared by Mokgethi contained significant deficiencies.
Certain estate assets, including a borehole, livestock, and share, were not reflected. Dividends were omitted, although the estate held a wide share portfolio valued at some P20 million, and rentals received after the passing of Joseph remained unaccounted for. “A known sale of Barclays Bank shares of more than P2 million has not been disclosed, and nor have those funds been subsequently accounted for. There is no evidence that the estate has paid income tax or even rendered tax returns for any of the years during which it has been under administration. In short, there is every indication that a number of breaches of the Administration of Estates Act may have taken place,” CoA Judge President Ian Kirby said.
On August 6, 2021 the CoA dismissed Mokgethi’s appeal and ruled that the High Court order of Justice Godfrey Nthomiwa be complied with within 30 court days of handing down of this judgment.