Former Botswana People’s Party president (BPP) and businessman, Bernard Balikani, is fighting the Tati Land Board’s court application to repossess his industrial plot in Matshelagabedi village on the outskirts of Francistown. He was allocated the plot in 2009.
The land board has lodged an application with the Francistown Magistrate Court in a bid to have Balikani evicted from the plot on the basis that he failed to follow regarding ownership and/or possession.
According to a notice of motion lodged with Francistown Magistrate Jennifer Chikate by the applicant (TLB), sometimes around October or November 2007, Tati Land Board floated an advertisement for industrial plots, under the common law land rights.
Pursuant to that advertisement, Balikani, the Managing Director of Classic Holding (first respondent) submitted an application with the TLB for a 3475m square plot being lot number 438 in Matshelagabedi village.
On the 28th of July in 2008, TLB invited Balikani to a meeting held at Masunga (Tati Land Board Chambers) to make representation regarding his application of the advertised plots. After that meeting on the 19th of February 2009, TLB wrote a letter inviting Balikani to attend another meeting of land allocation of industrial plot in Matshelagabedi village.
Subsequent to that meeting, Balikani was allocated an industrial plot, being lot number 438 at Matshelagabedi village.
During allocation time, Balikani was informed by TLB’s representatives that a lease agreement would be prepared, and he should therefore await communication from TLB to come and sign the document.
However, TLB claims that on the 9th of March 2009, it wrote to Balikani advising him to appear at its offices for the purposes of signing the lease agreement but he failed.
TLB further claims that Balikani does not have ownership to the land in question since he has failed to sign the lease agreement and has no title to the said land.
┬á“According to Section 24 sub section 3 of the Tribal Land Act, the allocation of this plot being a common law is subject to the respondent signing a lease agreement in order to have a title to the land in question,” the applicant is quoted in the document.
Francistown lawyer, Kesegofetse Molosiwa who is representing the respondent argues in his replying affidavit that the application of TLB be dismissed with costs.
He says that the relevant provision of the Tribal Land Act, dealing with cancellation of grant and recovery of possession, is section 28 of Tribal Land Act.
“Where there has been any breach of a development covenant or any change of user not authorized under section 27 in respect of any land granted under provisions of this part, the secretary of the Land Board may on behalf of the Land Board and notwithstanding the provisions of section 17 of Magistrates Courts Act bring an action in Magistrate Court for recovery of such land,” he countered.
He argues that in this case, the applicant is not alleging respondent of being in breach of any development covenant, therefore this provision does not apply. He says that the provision of the Tribal Land Act relied upon by the applicant for termination of the respondent’s title to the plot does not provide for termination of the grant.
“Section 24 sub section 3 provides as follows; A grant under this section shall be in the form of a written agreement executed on behalf of the Land Board by the Chairman or Secretary thereof duly authorized thereto by the resolution of the Board. My understanding of this provision is that grant under the section shall be in the form of a written agreement, the agreement must be executed on behalf of the Land Board by the chairman or Land Board secretary only and the Chairman of the Land Board must be duly authorized by resolution of the Board,” he argues.
He however adds that if there is anyone to blame for the lease agreement it is the applicant’s chairman and board secretary for not presenting the lease agreement to the applicant. The matter has since been postponed pending the meeting of Tati Land Board members.
TLB is represented by Queen Moanga of Francistown law firm, Madandume Attorneys.
