In a land mark appeal case in the judiciary history of Botswana, a panel of five Court of Appeal judges have set aside a High Court judgment passed last year by Lobatse High Court judge, Lashkavinder Walia, which said that the government was not obliged to supply the residents of Central Kalahari Game Reserve with water inside the reserve.
The judges said that residents have the right, at their own expense, to recomission the borehole at Mothomelo in the CKGR, which was formerly used to provide water to the residents of the reserve.
The judges granted them the right to sink one or more boreholes at such site inside the reserve as the surveyor or borehole engineer may advise.
Further, the judges said that the CKGR residents have the right to service, repair, maintain in good working condition any borehole to which the application applies. They have a right to draw water from any such boreholes “for domestic purposes only in accordance with the Water Act”.
The CKGR residents “are further allowed, either by themselves or through their agents, to bring water into the reserve and, to the extent necessary, to enable any borehole to which this declaration applies can be used for the purpose of supplying water for domestic use”.
The judges also allowed them use of any rig, machinery plant or other equipment that they may reasonably require to carry out any required work of drilling for water.
Further, they are allowed any tank that they may reasonably require to store water drawn from any borehole for domestic use. They are also allowed to request assistance or any advice from persons resident outside the reserve as they reasonably require to carry works on the boreholes or to transport equipment.
On the issue of permits necessary to enter the reserve, the judgment states that, unless it has reasonable grounds to believe that a person who had been asked to come and assist the residents of the park in one way or the other is not competent or is of bad repute on payment of the requisite fee, the Department of Wildlife shall issue an entry permit to him in terms that enable him to complete his task within a reasonable period.
They said that the Department may direct any such person to leave the reserve if it has reasonable grounds to believe that he had failed to comply with the terms of his permit or that his continued presence in the reserve is likely to be detrimental to the interests of the reserve.
They said that if and when the Department of Wildlife refused to issue a permit to a person who had been asked to come and assist, or directs that such a person should leave the reserve, it shall inform the residents orally and in writing as well as their representatives of the grounds on which the refusal was made.
Finally, the judges said that if the borehole at Mothomelo is to be deepened or any other borehole is sunk , the requisite notice shall be given to the Director of Geological Surveys of Botswana in accordance with the Borehole Act.
The Government was represented by the Attorney General and was ordered to pay costs of the suit, including those of two counsels.
