Friday, July 10, 2020

FORMER MUSEUM DIRECTOR WINS CASE AGAINST LANDBOARD AND BDP COUNCILLOR

The former Director of the National Museum and Art Gallery, Tjako Mpulubusi, has won back farmland he had lost to a Botswana Democratic Party councillor.

Mpulubusi was allocated the land in 2001 as an extension of a much larger piece of land that he already owned and was carrying out dairy farming on through a company called Sedze Ramantswe Investments. The latter was bonded in favour of the National Development Bank (NDB) as security for a loan that Mpulubusi had acquired from the bank. Thereafter, Mpulubusi successfully applied to the Shoshong Sub-Land Board to have the farm extended. Terms of the extension stated, in part, that the main lease would reflect this increase in size; that there would be commensurate increase in rental; and that all other clauses would remain unchanged.

When the dairy business faltered, the company defaulted and NDB foreclosed it. Thereafter, the company put up the farm for auction and was granted a court order to sell it off to the highest bidder. Importantly, the order authorised the sale of the original land allocated and was as precise as to quote the size of the land that was to be auctioned off.

Banthasetse Merementsi, who is a councillor of a small village 15 kilometres west of Shoshong called Kodibeleng, bought the farm at auction. Way after the transfer process had been completed, Merementsi discovered that the farm had been extended prior to the auction. Resultantly, he asked the Shoshong Sub-Land Board to grant him rights to the additional piece of land. The request was denied on the reasoning that the additional land had not been affected by the auction sale. The Sub-Land Board directed that in order to avoid any confusion, the additional land should be registered in Mpulubusi’s name.

Dissatisfied with this ruling, Merementsi appealed to the Ngwato Land Board (NLB), which, in turn, upheld the ruling of the Shoshong Sub-Land Board. However, it also ruled that Mpulubusi was himself not entitled to the extension as it was erroneously made. On the basis of the latter, it ruled that the addendum be cancelled and that the additional land be returned to it for re-allocation.

It was at this point that Merementsi took the matter up with the Palapye Land Tribunal to appeal the NLB’s decision. On learning of this development, Mpulubusi wrote the Tribunal asking that he be joined to the matter as he was an interested party. Such request was granted and he became the second respondent.

Merementsi’s case was that he was entitled to the additional piece of land because it was linked to the main one with the dairy farm. Conversely, the NLB’s case was that based on the principles of contract, Merementsi was only entitled to the latter.

In a 19–page judgement from the Tribunal, Merementsi’s case starts to collapse from the moment the Tribunal ends synthesizing legal precedents cited in the case and addresses itself to this dispute. The judgement notes that the newspaper advertisment that Merementsi responded to was very specific about the size of the land that was being sold.

“How is then entitled to 38 ha discovered after the contract had been executed and effected?” poses Tribunal President Motlhalefi Baipaakanyi in the judgement.

Merementsi had argued that the two plots were “linked”, which condition compelled the landboard to legally merge the two pieces of land as he desired. This argument failed because the Tribunal found that the two pieces were actually never consolidated because at the time of the auction sale and that the additional piece of land had not been registered under the Deeds Registry Act. It also found that the additional piece has never been registered by a registered surveyor and approved by the Director of Surveys and Mapping. The latter are standard legal requirements. On the basis of the foregoing, the Tribunal concluded that while granted for purposes of extending the dairy farm, the additional piece of land remained outside the registered title deed and was held as a personal right to Mpulubusi.

On such basis, the Tribunal ruled that Merementsi was contractually entitled only to the land he bought at auction and had failed to establish legal basis for why he was entitled to the additional piece of land which Mpulubusi owned personally and not through his company.

The NLB also lost in its claim to have the additional land returned to it for allocation and from what the judgement says, scored an own goal. In minutes that dealt with this matter at one of its meetings, the Landboard had, without giving reasons, stated that the extension was erroneous. The Tribunal couldn’t discern any error on the basis of the papers before it and thus threw out the Land Board’s claim. Resultantly, it ruled that Mpulubusi still holds the rights to the additional piece of land unless such rights are cancelled in terms of the Tribal Land Act.

Merementsi’s attorney had unsuccessfully sought to lock out Mpulubusi from the case because he didn’t appeal the NLB’s decision that sought to cancel his entitlement to the additional land in good time. While conceding the point about Mpulubusi “jumping onto the bandwagon long after the appeal period had expired”, the Tribunal nonetheless found that it could not ignore the legal position it had arrived with regard to him and that “justice and fairness” had to take precedence over “procedural challenge.” In the wording of the judgement, the Land Tribunal Act empowers the Tribunal to “disregard procedural irregularities in order that justice may be met.”

Supposing it chooses not to appeal the judgement, the NLB has gone as far as it can with this matter. On the other hand, Mpulubusi and Merementsi still have some legal business to attend to at the Gaborone High Court. Acting on the conviction that Merementsi connived with a now deceased Deputy Sheriff to dispossess him of his dairy farm, Mpulubusi reported Merementsi to the Council Secretary of the Central District Council. That letter that is now the subject of a defamation lawsuit before Justice Itumeleng Segopolo whose courtroom is at the Broadhurst Magistrate Court.

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Sunday Standard July 5 – 11

Digital copy of Sunday Standard issue of July 5 - 11, 2020.