Ndadi, Kgafela tussle over P1 million estate
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Prominent lawyers, Uyapo Ndadi and Mmusi Kgafela have challenged the Court of Appeal (CoA) with yet another interpretation of the law concerning inheritance. The court will on February 02 deliver judgment in a case in which four siblings are tussling among themselves following the demise of their parents who died without a written will.
In the case, one sibling represented by Ndadi is fighting against three others represented by Kgafela contesting the manner in which the estate has been shared. The last born Pony Hopkins, married in the United States of America wants to adopt the common law, while her three siblings who are residing in Mochudi in the Kgatleng district; Lucas Gakale, Chiki Moganetsi and Tenese Gakale opt for the customary law. Pony, Lucas and Chiki are biological siblings while Tenese was married to their late brother. As things stand, the only brother, Lucas has been appointed the executor.
Pony has through her lawyer Ndadi of Ndadi Law Firm approached the CoA seeking a determination whether Section 3 of the Administration of the Estates Act excludes the Master of the High Court from handling estates of tribespersons who die unheard; whether the Act makes it possible for the estate of the deceased to be placed with the Master of the High Court to be distributed in accordance with the customary law of the deceased.
The property in question are; 19 hectares farm estimated at P400 000; a residential property in Mochudi estimated at P500 000; a residential property in Gaborone estimated at P350 000; and a firearm valued at P20 000, which adds to P1 250 000.
The Administration of Estates Act, in particular Section 3, provides that, the Act shall not apply-
a) To the estates of the deceased tribesmen which as therefore, shall be administered according to the customary law:
Provided that whenever a tribesman dies after the commencement of this Act leaving a will valid in accordance with the Wills Act, This Act shall, notwithstanding any partial intestacy, apply as far as may be to the administration of the whole of his estate; and for the purpose of such application informal testamentary instructions in accordance with any written law relating to customary succession, given by the deceased shall be deemed, in so far as they are not inconsistent with the will, to be part of the will;
b) to the property of any person belonging to and serving with any visiting forces who dies within Botswana while on serving with those forces, unless it is shown to the satisfaction of the court or the Master that for the preservation or due administration of that property it is expedient that it should be dealt with this Act.
Pony attorney, Ndadi pointed out that the courts have grappled with giving effect to the definition of a tribesman. He argued that the Act does not, in its definition, put the issue to bed because it merely talks of belonging to a particular tribe. “We are mindful of the various conflicting decisions of the High Court on the point. The controversy is really what the actual meaning of a tribesman is for the purposes of the Act,” he highlighted.
He also submitted that, “the Act can be read and interpreted to allow for the estate of deceased person to be placed in the hands of the Master of the High Court for the purposes of appointing an executor as per the Act, who will administer, distribute and devolve the said estate in accordance with the customary law of the deceased.”
“Section 6 and 28 of the Act make it abundantly clear that the Master has jurisdiction over all estates and these sections are not subject to section 3,” he added. Ndadi said the lower court erred in deciding that the Master is not empowered to apply customary law in administering and devolving the estate; that the estate of the deceased is not sizable , that it can exclude customary court/chiefs from administering it and further that the lifestyle of the deceased persons do not qualify one to be excluded from the operation of Customary Law if he is proved to be a tribesman without having had regard to the oral evidence supporting the issue of the lifestyle of the deceased person.
He submitted that it does not mean that since the deceased comes from the Bakgatla Tribal Community they have submitted to the principles of customary law being used in the area. The question of whether one is a tribesman is in two folds, he said; Being tribesman for purposes of the Act entails that one belonging to the tribal communities of Botswana or in Africa; and to state that one has lived their life in such a manner that either the Master or the chief in the tribal area has jurisdiction over the devolution of their estate when they die intestate.
On the other hand, the respondents argued through their lawyer, Mmusi Kgafela that the appellant be dismissed. Kgafela said the lower court came to the right decision that the Master has no jurisdiction over the deceased parents’ estates. He decried that, “When this legislature came into practice around 1920s, we were under the colonial influence. We now find ourselves in a quite difficult situation. I think on legislature we just walked into the offices of the colonials.”
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ENVIRONMENT ISSUES: Masisi asks Virginia for help
President Mokgweetsi Masisi says the issue of sustainable natural resources management has always been an important part of Botswana’s national development agenda.
Masisi was speaking this week on the occasion of a public lecture at Virginia Polytechnic, under theme, “Merging Conservation, Democracy and Sustainable Development in Botswana.”
Botswana, according to Masisi, holds the view that the environment is fragile and as such, must be managed and given the utmost protection to enable the achievement of Sustainable Development Goals (SDGs).
“It is necessary that we engage one another in the interchange of ideas, perspectives, visualizations of social futures, and considerations of possible strategies and courses of action for sustainable development,” said Masisi.
On the other hand, dialogue, in the form of rigorous democratic discourse among stakeholders presents another basis for reconfiguring how people act on their environments, with a view to conserving its resources that “we require to meet our socio-economic development needs on a sustainable basis,” Masisi told attendees at the public lecture.
He said government has a keen interest in understanding the epidemiology and ecology of diseases of both domestic and wild animals. “It is our national interest to forestall the dire consequences of animal diseases on our communities livelihoods.”
President Masisi hoped that both Botswana and Virginia could help each other in curbing contagious diseases of wildlife.
“We believe that Virginia Tech can reasonably share their experiences, research insights and advances in veterinary sciences and medicines, to help us build capacity for knowledge creation and improve efforts of managing and containing contagious diseases of wildlife. The ground is fertile for entering into such a mutually beneficial partnership.”
When explaining environmental issues further, Masisi said efforts of conservation and sustainable development might at times be hampered by the emergence and recurrence of diseases when pathogens mutate and take host of more than one species.
“Water pollution also kills aquatic life, such as fish, which is one of humanity’s much deserved sources of food. In this regard, One Health Approach imposes ecological responsibility upon all of us to care for the environment and the bio-diversity therein.”
He said the production and use of animal vaccines is an important space and tool for conservation, particularly to deal with trans-border animal diseases.
“In Botswana, our 43-year-old national premier pharmaceutical institution called Botswana Vaccine Institute has played its role well. Through its successful production of highly efficacious Foot and Mouth vaccines, the country is able to contain this disease as well as supply vaccines to other countries in the sub-region.:
He has however declared that there is need for more help, saying “We need more capacitation to deal with and contain other types of microbial that affect both animals and human health.”
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Masisi saddened by deaths of elephant attacks
President Mokgweetsi Masisi has expressed a strong worry over elephants killing people in Botswana. When speaking in Virginia this week, Masisi said it is unfortunate that Batswana have paid a price with their own blood through being attacked by elephants.
“Communities also suffer unimaginable economic losses yearly when their crops are eaten by the elephants. In spite of such incidents of human-elephant conflict, our people embrace living together with the animals. They fully understand wildlife conservation and its economic benefits in tourism.”
In 2018, Nthobogang Samokwase’s father was attacked by an elephant when travelling from the fields, where he stayed during the cropping season.
It was reported that the man couldn’t run because of his age. He was found trampled by the elephant and was pronounced dead upon arrival at the hospital.
In the same year, in Maun, a 57-year-old British woman was attacked by an elephant at Boro and died upon arrival at the hospital. The woman was with her Motswana partner, and were walking dogs in the evening.
Last month, a Durban woman named Carly Marshall survived an elephant attack while on holiday in the bush in Botswana. She was stabbed by one of the elephant’s tucks through the chest and was left with bruises. Marshall also suffered several fractured ribs from the ordeal.
President Masisi Botswana has the largest population of African elephants in the world, totaling more than 130 000. “This has been possible due to progressive conservation policies, partnerships with the communities, and investment in wildlife management programmes.”
In order to benefit further from wildlife, Masisi indicated that government has re-introduced controlled hunting in 2019 after a four-year pause. “The re-introduction of hunting was done in an open, transparent and democratic way, giving the communities an opportunity to air their views. The funds from the sale of hunting quota goes towards community development and elephant conservation.”
He stressed that for conservation to succeed, the local people must be involved and derive benefits from the natural resources within their localities.
“There must be open and transparent consultations which involve all sectors of the society. It is against this backdrop that as a country, we lead the continent on merging conservation, democracy and sustainable development.”
Masisi stated that Botswana is open to collaborative opportunities, “particularly with identifiable partners such as Virginia Tech, in other essential areas such as conservation, and the study of the interplay among the ecology of diseases of wild animals and plants, and their effects on human health and socio-economic development.”