Land reserved for 433 houses will now be used for shopping complex

14 Jan 2018

The story of a vast tract of land in Gaborone North that the government claims to own but is being developed by a private sector company gets more complicated by the day.

Under a 2002 public-private partnership (PPP), a company called Zimmal Reliance was to build 433 affordable houses on the land – whose ownership the government retained - to ease the acute housing accommodation problem that has long bedevilled the capital city. Such development was to happen within two years, failing which the PPP would be scrapped. The acuteness of the housing problem is such that around the time that this deal was sealed, a young man in Gaborone West was literally living in a tree house because he couldn’t afford decent housing. There is no shortage of shopping malls in Gaborone but the land in question will now be used to build a mall with a petrol filling station.

“What do you say about that because it compromises the initial objective which the government and Zimmal contracted over, whose basis was a PPP to benefit Batswana?” the Gaborone North MP, Haskins Nkaigwa, asked of the Assistant Minister of Land Management, Water and Sanitation Services, Itumeleng Moipisi, in the dying days of the last session of parliament. “Now only Zimmal will benefit from the PPP.”

In his entire answer, Moipisi never once disputed Nkaigwa’s assertion about the said commercial development. The latter was actually the subject of a public EIA consultation meeting that took place at the Ledumang kgotla last April.

The Gaborone City Council (GCC), features in the matter and may have made a complex issue even more complex. Both the Council and Zimmal own neighbouring parcels of land which have been lying fallow for years. Last year, the latter started building a wall fence that should have been confined to its own land but ended up enclosing Council-owned land that members of the public use as a thoroughfare. GCC’s Physical Planning Committee instructed the company to stop construction of this wall. As it turns out however, this construction was approved by the Council itself. According to GCC’s spokesperson, Ethel Koma, the Council’s Department of Building issued Zimmal a building permit in October 2016. In his response, Moipisi himself stated that Zimmal constructed the wall “upon the granting of a planning permission thereto by the Gaborone City Council.”

What has happened here is that one GCC organ issued a permit for the construction of a wall that encroaches on the Council’s own land. When construction was going on, another organ stepped in and realising what had happened, ordered that the wall should be knocked down. If the matter goes to court, Zimmal will likely invoke the principle of legitimate expectation. (The company’s expectation is that having been issued with a permit to construct the wall, nothing should stand in the way.)

A GCC source explains how this could have happened. The Building Control function in the Department of Building is a feeder committee of the Physical Planning Committee, whose chief advisor is the Physical Planner. Building Control considers applications every working day and its decisions are reported to the Physical Planning Committee at a later stage. What seems to have happened is that the former approved Zimmal’s application and such information reached the latter much later.

Only constructing the wall did Zimmal make an application to the Physical Planning Committee to be given the Council’s land so that it could extend the plot loaned to it by the government. While the Committee ended up rejecting the application, it had already granted permission for the construction of commercial development that falls outside terms of the PPP.

As Moipisi stated in his answer, ownership of the land still rests with government. This leniency has raised eyebrows and prompted Nkaigwa to ask why the deal was not scrapped when Zimmal could not develop the land within the required time. The minister gave a perfectly reasonable answer about Zimmal not being the first applicant to be allowed to hold on to land it hasn’t developed within such time. The problem though is the curious manner in which the ministry has handled Zimmal’s case: indefinitely extending the concession and allowing the company to alter PPP terms in such manner that principal beneficiaries are frozen out.

The campaign to have the original PPP terms restored has been taken up in another part of town by Marang/Tsholofelo East Ward councillor, Meshack Kebeileng, in whose area the land in question falls. His anxiety is such that he will raise the issue of a controversially-acquired plot in with whoever looks like he can help. Last year, he raised the issue with the Minister of Infrastructure and Housing Development, Nonofo Molefhi, when he came to the GCC chamber to address councillors on a totally different matter. The name of Molefhi’s ministry sounds like it might be relevant to the issue at hand but in response, Molefhi could only say that he was not the appropriate authority.

Kebeileng says that he grew suspicious about the ownership of the plot when there would be some sudden development on the plot that would then stop abruptly. He alerted Nkaigwa, about such goings-on and the result was a parliamentary question. The councillor says that what he finds most worrisome is that it is extremely difficult for them as councillors to get information about unoccupied plots – which are commonly referred to as “open spaces” – in their wards.

“Land that is supposedly reserved for public use disappears right in front of our eyes and we are helpless about it. I don’t know who the owners of unoccupied plots in my ward and it is not easy to get such information from the Department of Physical Planning. There is never a satisfactory explanation for why companies get land very easily when there is a long waiting list for residential plots,” he says.

According to a good source, the ministry is still strip-searching the law for loopholes that would allow it to ultimately allocate the land to Zimmal. When that happens, what the company wants to do with the land cannot be questioned by anyone because the land would be in private and not public hands.