Monday, August 8, 2022

Basarwa to appeal judgement on borehole

Seranne Junner, one of the lawyers in a case Basarwa of the Central Kgalagadi Game Reserve wanted to be allowed to drill their own borehole in the CKGR, says that they intend to appeal against a judgement recently passed by Lobatse High Court judge, Lashkavinder Walia.

Junner said that they are currently studying the judgement but that there are indications that they will soon be heading to the Court of Appeal.

”Indications are that we will appeal the judgement as early as possible because we feel it was wrong,” she said, adding that she will be working with the head lawyer, London-based advocate Gordon Bennett.

Dismissing the Basarwa’s case recently, Walia said that Basarwa who chose CKGR must live with the difficulties that their choices present.

The Basarwa, Walia said, have chosen to settle in areas far from facilities provided for by the government and have become victims of their own decision to settle inconveniently long distances from services and facilities provided for by the government.

On the submission made by Bennett that by denying Basarwa access to the borehole she was exposing them to inhuman treatment, contrary to the constitution, Walia said that as Roy Sesana case had concluded in the past, government was under no obligation to provide essential services to Basarwa inside CKGR.

Judge Walia also dismissed Bennett’s earlier submission that, according to Section 6 of the Water Act, dwellers of CKGR, as on other state land, have the right to drill boreholes on their own desire without seeking any permission, she said that, Section 9 of the same law contradicts Section 6 by requiring permission for any drilling and that it was up to him to reconcile this.
Section 6, he said, does not grant unlimited and uncontrolled drilling but that it should be read with the second part, which provides further details.

He further said that he will not use Section 6 as Bennett wanted him to. The judge said that in his view, the inconsistency between Section 6 and 9 of the Water Act, can be resolved in terms of Section 29 of the Interpretation Act and that the obvious result of this is that Section 9 prevails, the result of that being that any person wishing to extract water may do so only by authorisation, as provided in Section 9 and 15 of the Water Act.

Both parties, he ordered, should pay their costs.

The judgement has received wide publicity in and outside the country, with some papers running the story just hours after the judgement.


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