Mokgethi escapes jail
Mpho Mokwape | Monday June 6, 2022 06:00
Mokgethi has been in a controversial legal battle with Masenya regarding the execution of the late Abdul Joseph's estate and was facing jail as Masenya accused her of not complying with orders directing that she give full account of the estate. Masenya is the granddaughter of the late Joseph and she has been challenging the legality of Joseph’s will that left her out in the cold. Mokgethi drew the will and was also appointed the executrix of the estate under the will. Now the Court of Appeal, when dealing with the contempt of court filed by Masenya, struck out the contempt application on grounds of jurisdiction. Justices Isaac Lesetedi, Lakavinder Sigh Walia and Mercy Garekwe agreed that the court was not a suitable one to hear contempt proceedings on two reasons being that first the court order being the subject of contempt was a High Court order and that there were disputes of facts between the parties.
Justice Lesetedi explained that the appeal they determined on August 6, 2021 was not on the merits of the order but merely on whether the applicant had a right to move the application for an accounting of the administration of the estate. “This court found in favour of her on that point and having done so, it merely confirmed the need for compliance with the order of the High Court and the time for compliance set by the court having lapsed before the hearing of the appeal, gave the respondent 30 days from the date of confirmation of the order to comply with that order,” he said.
Justice Lesetedi empahasised that the second and more important reason why they could not deal with the application of contempt was the dispute of fact between the parties as to whether or not the respondent had now complied with the requirements of the High Court order to account to the Master and if not whether such non-compliance constitutes contempt. He also said such disputes may require oral evidence to resolve and that it was not a suitable exercise for an appellate court, which was also a court of last resort. “The order being sought in the current proceedings is not a punitive one but a coercive one. For that reason, the important finding to be made is whether there has been non-compliance with the High Court order and whether if there was such non-compliance, which the respondent denies, she has rebutted the presumption of wilfulness,” he said. In conclusion, the judges said it must be pointed out that contempt of a court order by a legal practitioner, if proved was a grave matter. It was also noted that the court was concerned that the matter continued to drag on without coming to a satisfactory conclusion and hopes that the respective parties to the litigation will ensure smooth accountability and finalisation of the required accounting process to the satisfaction of the Master. At the back of the story is that the applicant, Masenya, is the granddaughter of the late Joseph who died on July 7, 2012 leaving a substantial estate worth millions of pula in value. At the time of his death Joseph had two daughters, the applicant’s mother and Shereen Pandor. He died leaving a will drawn by Mokgethi who was also appointed the executrix of the estate under the will.
The applicant, Masenya’s mother predeceased Joseph and the will left the whole estate to Shereen and her children without any provision for the applicant and her siblings. Masenya then challenged the validity of the will of which the proceedings in that regard are still ongoing. She contends that she and her siblings are entitled to inherit under the intestate succession or customary law. The latest proceedings are as a result of the applicant being dissatisfied with the respondent’s management and level of accounting on the affairs of the estate. She had launched proceedings in the High Court, with the blessing of the Master calling the executrix Mokgethi to provide an account of the estate.
Though the minister opposed the application on various grounds, one of which being that the applicant had no right to institute the proceedings as she was not a beneficiary to the estate under the will and her rights were still to be determined in the action challenging the validity of the will. The High Court then disagreed with the executrix, finding that Masenya has a right and was entitled to the orders sought therefore, issuing among others that a full accounting, up to date and accurate inventory of the estate. Mokgethi being dissatisfied with the decision of the High Court appealed to the CoA on only one point that the applicant was not an interested person and had no right to institute the proceedings.
The appeal was unsuccessful as the court held that Masenya indeed had a right and because of her conduct in the matter, Mokgethi was ordered to personally bear the costs of the appeal. In the current proceedings, the applicant had filed contempt of court proceedings against the minister at the CoA after she was dissatisfied with the level of compliance and seeking among others the following reliefs, that the minister be held in contempt of court, that she provides the full accounting for the estate as per the judgement of the High Court and that in the event that she fails to fully obey the orders, she should be committed to prison for a period of not less than 60 days. Also that if after the expiration of the 10 court days after her completion of her sentence, she shall continue being in contempt and should be committed to prison for a further 60 days.