A protracted David and Goliath legal battle be fought at the High Court when Debswana Diamond Mining Company appeals a ruling of the Francistown Land Tribunal in favour of Moshe Phologolo – a farmer in the Boteti Constituency.
The case is to be heard at the Francistown High Court, after Phologolo approached the Tribunal for relief against forceful occupation and inclusion of a piece of land covering his borehole inside the newly expanded Orapa Game Park disregarding his lawful rights over the area.
The alleged unlawful action happened without his consent despite having in his possession a certificate of rights issued by the Letlhakane Sub-Land Board. He further demonstrated before the Tribunal and in papers to the High court that the borehole was issued in 1961, well before the Mine was issued mining rights in the area.
Debswana on the other hand argue that the Land Tribunal was biased towards Phologolo and paid very little or no attention to their part of the case.
It has emerged in court papers that Phologolo submitted numerous applications requesting formal registration for his borehole, the latest was in 2014 prompted by the desire to solicit for compensation thereby requiring tangible proof connecting him to the borehole. The application was deferred in 2015 at a meeting held on 16th June, pending input from the Department of Geological Surveys.
Following confirmation by the Geological Surveys Department, the Boteti farmer through a letter dated 22nd July 2016 got a resolution of approval of his application from Letlhakane Sub-Land Board.
A certificate was duly issued. The irony of it all is that Phologolo’s decision to have his borehole registered followed advise by the mining company.
However, to Phologolo’s dismay and shock, and even to the Land Tribunal’s concern, the Boteti farmer’s certificate was rescinded two months later.
“The Board resolved to nullify your rights of the point registration on grounds that the rights registered have already prescribed as the point remained unused and unregistered for 51 years. Further the point falls within a piece of land already allocated to Debswana Diamond Company. You are therefore requested to revert the certificate to the Sub-land Board within thirty days”, reads the letter.
The Land Tribunal said: “It is not clear how the registration of the borehole in question and in the Appellant’s favour became a subject of discussion at the Ngwato Land Board…”
Although the farmer was never notified by the Sub-Land Board of its change of heart, Phologolo only learnt when he appealed the Ngwato Land Board’s decision that Debswana had reneged on its initial decision for the farmer to be assisted with the certificate.
The Land Tribunal concluded that the Sub-land Board and Main land Board were inseparable, and that they were subject to the same rules governing issuance of land rights. It ordered
that the land Board was the only authority vested with the right to authorize any change of use, transfer of tribal land rights and that subject to the regulations governing its operations no cancellation of land rights can be done for any other reason other than as stipulated by the act.