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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