Land Tribunal quashes man’s belated appeal against Kweneng Land Board

01 Jul 2019

A Molepolole resident Maurice Lefifi has had to wait for 22 years for the Kweneng Land Board to allocate him a commercial plot in Mogoditshane.

After the land authority turned him down he belatedly approached the Gaborone Land Tribunal which subsequently upheld a decision by the land board on account that the policy environment has changed to his disfavour.

Moreover, it was stated by President of the Tribunal, Baipaakanyi M, that the Tribunal concurred with the Attorneys of the Land Board, namely T.M. Toteng and O. Motonto, both In-house Attorneys, that their client was not obligated to compensate Lefifi with an alternative allocation as there is no demonstration that he ever took steps in the cited 22 years to follow up his complaint with the appropriate authorities on time.

“If he indeed considered the board to have failed to discharge its duties contrary to standards of Performance Management Systems (PMS), he could have approached the Ministry responsible for land allocation to lodge complaint,” qualified Baipaakanyi.

On the contrary, the only evidence pointing to Appellant’s contact with his application since he filed it in 1994 was in the year 2015/2016 as seen by the Tribunal judges upon perusal of the relevant documents.

Consequently a lot has changed in the legal and policy environment which adversely impacted on the Applicant’s opportunities including prospects of success for his application.

Among other reasons, Lefifi’s bone of contention was that was that the Mogoditshane Sub-land board which is a subordinate land board of the Kweneng Land board in Molepolole, has been sitting  on his request for too long only to subject it to paragraph 59 (i) and (ii) of the Botswana Land Policy of 2015. Lefifi contended that the policy came into force 21 years after his application had long reached the Board.

It is provided by the policy at issue that, “Access to land for investment will be through open competitive public tender…in addition, commercial, industrial and civic as well as community plots will be planned for and surveyed before allocation”.

Lefifi further protested in his submission that in 1994, “Any Motswana was at liberty to identify a suitable piece of land applying for it at the land board”.

He further posited that the land board’s many years delay in attending to his application and use of a new law against and old application prejudiced him. He said that was unfair.

Keatametse Mosenki, who assisted Lefifi in his case, proposed that at least since the land may be scarce in Mogoditshane the Board should consider allocating the Appellant  a plot in Molepolole where the land is not that scarce and the workload relatively better. This would remediate for time lost.

Motonto, however contested the compensation argument.  He pointed out that in terms of delay the board was seized with a backlog resulting from its proximity to the greater Gaborone area. In addition there were a number of other factors regarding the general administration of the Board itself.

Concerning the issue of being prejudiced the Land Board’s lawyer submitted that the Appellant was at liberty to apply elsewhere in the district or other parts of the country for that matter.

“The appellant’s application was considered in 2016 and by then the Botswana Land policy of 2015 was in place, hence its application,” explained Motonto. He reiterated that it therefore followed that the policy that applied to an application was one that was in place at the time of consideration and “not the one that could have been in use at the time of submission of the application.”

On this the Tribunal agreed with the land board saying that the delay cannot be remedied by an allocation, rather it can only be made in terms of the prevailing policies and laws.

Further mention was made of the fact that the policy on disposal of commercial land was at the time of application also by way of advertisement. “Government Paper No. 1 of 1992 on land problems in Mogoditshane and other Peri urban villages established the Mogoditshane land board in 1992/1993.

In the same vein the said Government Paper meant that Mogoditshane village and surrounding villages became part of the Gaborone Planning Area in terms of the Town and Country Planning (Transfer of Planning Functions) Order by then.

It was pointed out as such, that it was still probable that even assuming the application was for direct allocation rather than advertising, it would still have failed then.

Baipaakanyi on that basis ruled that the Appellant has failed to establish any unlawfulness and or irrationality, unreasonableness and unfairness of the decision on the part of respondent in their resolve of the matter.

He concluded: “We find that the respondent properly applied the 2015 policy to the Appellant’s application.”