It is through Justice Legwaila that all children are equal

SHARE   |   Monday, 08 August 2016   |   By Uyapo Ndadi
Justice legwaila Justice legwaila

We are all going to meet our Maker one day, it is just a question of when and how. Justice Legwaila answered his call to meet the Maker recently. I know I sound Christian at this stage, I am. And most importantly, I am talking about a man who believed. Him departing this earth is a loss to us but a big gain in the Heavens. His presence and wisdom will however remain on earth. Lawyers will continue to use his well –reasoned and well-written judgments to advance their clients cases.  His life we celebrate because his deeds are many. The man worked tirelessly to advance the jurisprudence of the Industrial Court, as a Judge and as a Judge President of the court. He dispensed fairness, justice and equity, true to the ideals and values of the Industrial Court.

Despite the many cases he handled at the Industrial Court, one judgment of the few cases he handled at the Court of Appeal (where he retired from last year) stands out for me as it mirrors the kind of person he was during his lifetime. The reasoning in judgments, particularly where the law is unjust or unclear, normally reflect the calibre of a judge. This was a case was between Kealeboga & Another against Kehumile & Another. The brief facts of the case are as follows: Children of the late Charles Kehumile, who were well known in their father’s family and maintained by their father throughout were denied the right to inherit from their father upon his death. The parents of the said children were never married. The deceased’s siblings contended that they did not know the children. The High Court held that the children were not entitled to inherit from their father because the father was never married to their mother or the father never adopted them. (I wonder how can one adopt their own blood).

Having set out the facts, I wish to reproduce the words of Justice Legwaila in the judgment to drive the point home about the values of the noble man. At paragraph 61 of the judgment he said, “It will be seen from decisions based on customary law that there is a trend towards recognising the right of children to inherit irrespective of the circumstances of their birth. When a man spends his life bringing up his children, maintaining them, assuming the name of the first born-Ra Thamiso- and educating them, a decision that says those children cannot claim from him because of the outdated and demeaning description –“illegitimate’, becomes a bitter pill to swallow. He made them know they were his children; he had no other children and had not married any other woman. Why should his siblings have a better right to his property than his biological children?”

He went on to say at paragraph 62, “It is not humane, moral or an act of natural justice to tag a man’s progeny with the label, illegitimate, in order to disinherit them.” At paragraph 63 he says, “In the Tswana culture, there is no equivalent of the word “illegitimate” applied to children born out of wedlock, the word “illegitimate” when applied to children connotes human beings of a lessor worth. We do have children born out of wedlock, many, and we have ways of explaining the circumstances of their birth but nothing approximates the harsh connotation of “illegitimate”. A child born out of wedlock is simply a member of the family he or she is born in and does not carry the label “illegitimate”. The Children’s Act is a living example of the direction the legislature wants us to take, away from hurting epithets.”

It is this judgment that I celebrate mightily by Justice Legwaila. Evidently he spoke with impeccable wisdom, maturity and passion in pursuit of one thing, justice. I remember meeting him on the corridors of Bokamoso Private Hospital two years ago, and he said to me, “Ndadi I appreciate you for fighting for the weak members of our society. You are doing well and keep the fighting alive. I know it is not easy.” These words keep playing in my mind because they were coming from a good place. You could tell from his eyes that he was sincere for he is a sincere man, with unmatchable integrity. To his wife, his children, relatives and friends, be comforted. Celebrating his mighty and purposeful life is the only befitting honour we can give him. I choose to celebrate him. He will continue to speak to us from his resting place through his judgments. And I will be relying on his inheritance judgment soon, in a matter I have before the High Court. Thank you for your contribution Your Lordship!

Uyapo Ndadi
Managing Partner: Ndadi Law Firm