The High Court will decide whether residents of the Central Kalahari Game Reserve (CKGR) who were not in the list of the 2006 judgement which declared that their relocation from the reserve was illegal can be buried in their ancestral land.
This follows a decision by government through the Ghanzi District Council to file a High Court case seeking an order to bar Basarwa who are not in the list to be buried inside the CKGR.
In 2006, the government decision to evict the Basarwa community from the CKGR was held to be illegal and unconstitutional by the High Court. It did not make pronouncement on whether only those in the list of the 189 residents who challenged the illegal relocation could be buried in the reserve.
In his founding affidavit, Ghanzi District Council Secretary Dick Kalantle states that in some meetings held between the Council and the family and in an effort to persuade the Council to finance the burial of the deceased in the CKGR, his children and their relatives have pointed out that the Council had previously financed the burial of some people in the Reserve.
Kalantle said the Council did so because it took the view that it “was obliged to do as those persons were amoung the 189 which the Court in Sesana and Other v The Attorney General…declared were entitled to return and live in the CKGR.” The Sesana vs The Attorney General judgement declared the eviction of the Basarwa community from the CKGR illegal and unconstitutional.
Kalantle argued that the deceased was not an applicant in that case. He said no evidence of him having ever lived in the CKGR other than of the claim that he had been born there has ever been produced and no circumstances existed which entitled his children and relatives to bury him in a place other than that which the Revised National Policy on Destitute Persons decreed. The policy in question states among others that a beneficiary of this policy should be buried at his or her place of abode at the Council’s expenses.
With regard to the family of the deceased’ argument that there have been cases where the Council financed and allowed burial of some people in the Reserve citing the case of one, Mokwepa Ngwaa who was buried in CKGR despite the fact that he was not in the list of 189, Kalantle argued that the case was unique.
“Following Mr Ngwaa’s death, the Councillor for New Xade, a member of the Village Development Committee of that village, approached the Applicant (Council) with a request that the latter finance the burial of Mr Ngwaa’s corpse in the CKGR,” said Kalantle.
Kalantle said the Councillor explained that although Mr Ngwaa was not in the list of 189, he had always lived inside the CKGR, had never left the CKGR, had his home in CKGR and nowhere else, had no family nor relatives anywhere else other than inside the CKGR and had died on a temporary visit to New Xade. He said the Councillor, representing the Village Development Committee for New Xade, made the request.
Kalantle said the Ghanzi District Council took the view that it was an appropriate case in which Paragraph 6.8.3 of the Policy could be applied and did so. The paragraph in question states that “Subject to the certification of the tribal authority of Village Development Committee, Ward Development Committee chairperson, and with the including a non-citizen, who is not a registered destitute person, will be accorded the burial procedures as a destitute.”
Kalantle said Ghanzi District Council was also aware that Section 14(3)(c) of the Constitution of Botswana, which has been used by some to claim an entitlement and was certainly so used in the Sesana case referred above to live in the CKGR, was repealed which repeal came into operation on 01 December 2006.
He said all engagement by the Council with the children of the deceased and his relatives long as it has been, has borne no fruit, giving the Council no option but to seek the intervention of the Court.
“The applicant will not stand in their way (family of the deceased) if the latter approach (choosing to arrange the burial of the deceased and choose the place of burial), subject only to reservation as to the lawfulness of the right to bury a resident of New Xade inside the CKGR and their implications of setting such a precedent and the Applicant has no desire to be party to the setting of the precedent,” said Kalantle.
