Gaborone High Court Judge, Justice Lashkavinder Walia has thrown out an application by Basarwa who were not applicants in the 2002 case challenging their relocation from the Central Kalahari Game Reserve (CKGR). They had approached the court seeking to be allowed to reside in the game reserve.
They were also challenging a government policy which requires them to apply for permits to enter the reserve.
Dismissing the application with costs, Justice Walia noted that the First Applicant, Keotlhabetse Ithutseng was not authorised to act on behalf of the other applicants and it was not explained how he assumed the right to represent other applicants.
“…The power of attorney is not properly before court. It follows that on the paper before me, Ithutseng is not authorised to act for the applicants and Duma Boko and Company have no authority to act for Ithutseng,” he said.
Walia also found that there had been considerable disregard of the rules of the court as far as the manner in which the applicants’ papers had been prepared. He said the application had been brought in breach of the rules of Court and without disclosing the locus standi. He said the fundamental premise of the application is that the applicants were at some stage resident in the CKGR, and therefore had the right to return, unimpeded by the government.
“Their status as former residents of the CKGR cannot be resolved by a simple balancing of the respective averments and denials. The very fact of their being so resident requires proof,” said the judge. He added that numerous factors such as government policy and conditions in the CKGR needed to aired and debated before decision is made.
Walia also found that “in the circumstances, while the power of attorney by Othutseng in favour of Duma Boko and Company, may on proper application, be admitted, the failure to establish the other applicants’ locus standi renders the application in so far as it relates to them, invalid.”
Representing the government from Attorney General’s Chambers, Dimpho Phagane argued that Ithutseng does not have legal capacity to apply on behalf of the rest of the concerned Basarwa.
“The first applicant does not have a legal standing to apply on behalf of others as he has also stated that he was a resident of Kaudwane during the time of the relocations. He, therefore, has nothing in common with the other applicants who were relocated from the game reserve,” Phagane had argued.
Boko argued that if some former residents of CKGR were given a right to enter the game reserve then it should not matter if others were not listed as applicants in the case. Boko had also argued the new applicants deserve the same rights as those involved in the previous Roy Sesana case.
The latest case was dealt a heavy blow before it could come before Court as Basarwa were denied legal representation of their choice as the government put their British Attorney Gordon Bennett on a list of people who need a visa to enter the country.
When the case resumed at the Gaborone High Court, Boko came to the rescue of the Basarwa by standing in for Bennett.