Monday, September 27, 2021

Judgement in Balete case starkly contradicts that of Court of Appeal

The Balete land case will get even more interesting if the Friday outcome is appealed at the Court of Appeal (CoA). That is because nine years ago, the CoA made findings that are in stark contrast to those made by a three-member panel comprising of Justices Michael Mothobi, Mokwadi Gabanagae, and Gabriel Komboni.

The dispute is over the remainder of farm Forest Hill No 9 – KO which Balete bought from Aaron Siew in 1925. Ownership was transferred to Kgosi Seboko Mokgosi, in his capacity as supreme traditional leader of the Balete, for and on behalf of the tribe, which had itself contributed to the purchase price of £3000. On 12 February 1970, the tribe transferred a portion of the farm, (some 403 acres), to the state. A further portion of the farm was granted to the state in 1987.

The remaining piece of land didn’t make any news until 2008 when a company called Quarries Botswana, which mines quarry stone in Mmokolodi, was barred from using the road to traverse Forest Hill. In an application that came before Justice Key Dingake, the company asserted its right to use the public road that passed through the farm like everybody else. This application was brought against the Gamalete Development Trust, which manages land assets of the tribe. After Dingake ruled in favour of the Trust, the company successfully appealed such outcome at the Court of Appeal.

A lawyer observes that the CoA complicated the matter by not making an explicit order then, that the tribe should surrender the title deed to the state. And indeed, the legal fight that followed was over the title deed. Emboldened by the CoA judgement, the Malete Land Board, which is an organ of the state under the Ministry of Land Management, Water and Sanitation Services, wanted Kgosi Mosadi Seboko to surrender the title deed. When she refused, the Land Board, which wanted to free up the land Forest Hill for development by deep-pocketed investors, sued. That was the matter that Mothobi, Gabanagae and Komboni ruled on this past Friday. The justices unanimously ruled that Forest Hill belongs to Balete and not the Land Board.

If it decides to take the matter up with the CoA, the Malete Land Board would most certainly be emboldened by a CoA judgement, overturning Dingake’s, that was handed down by Justice Craig Howie, who is the former President of the South African Supreme Court of Appeal. Howie held that ownership of the remainder of Forest Hill was vested in the Malete Land Board when an amendment to the Tribal Territories Act in 1973 re-defined the Bamalete Tribal Territory to include Forest Hill. The CoA also invoked constitutional provisions and made the conclusion that the taking over of Forest Hill by the Land Board was not unconstitutional.

The CoA judgement remains controversial in legal circles and has been the subject of an academic paper that was written by Clement Ng’ong’ola and Refilwe Segokgo of the University of Botswana. All in all, they found the Dingake’s judgement to be “a clear, lucid and authoritative restatement of the law” and Howie’s overturning it to be “most disappointing and its errors egregious on the constitutional implications of the transfer of ownership in the farm from the tribe.”

The CoA had dismissed the contention that Balete had been deprived of their property contrary to Sections 3 and 8(1) of the Constitution, by making reference to Section 8(6) of the Constitution which provides that there is no infringement of Section 8(1) of the Constitution where property or any right or interest in property compulsorily acquired or taken over is held “by a body corporate established by law … in which no moneys have been invested other than moneys provided by Parliament.” The court held that land boards are bodies corporate established by an Act of Parliament, for the discharge of duties and responsibilities beneficial to the public, and supported by funds entirely provided by Parliament.

Of the latter, Ng’ong’ola and Segokgo observe: “This was an astounding and arguably incorrect conclusion, arrived at through a misreading and application of Section 8(6) of the Constitution. Correctly interpreted, Section 8(6) should apply and cover the State for expropriation or compulsory acquisition of property belonging to a public institution such as a land board. This was not the issue or argument raised in this case. The issue was expropriation by the State, (on behalf of the Malete Land Board), of a freehold property belonging to a Tribe. The Bamalete Tribe was not at the material time a body corporate established by law in which moneys other than those provided by Parliament had been invested. Section8(6) of the Constitution would only be applicable if in the aftermath of the Court of Appeal decision the State were to expropriate the farm Forest Hill from the Malete Land Board.”

To Howie’s contention that “the constitutionality of the [Tribal Territories Act and the Tribal Land Act] in the relevant respects has never been challenged”, the UB academics counter that the CoA “cited no authority for this proposition, and probably none can be found in any of the systems of legal thought from which Botswana draws its constitutional jurisprudence.”

For the most part, the authors use condemnatory language to describe the CoA judgement. They describe the judgement as “an intriguing and academically disappointing resolution of the dispute” and adjudge the CoA to have “eschewed clarification of the law on other important issues canvassed by the litigants” as well as being “somewhat casual and slipshod in its treatment of the constitutional implications of the ‘transfer’ or ‘taking over’ by the Malete Land Board of freehold land belonging to the Bamalete Tribe.”

Whatever defects the CoA judgement may have had, the legal arguments it makes will certainly be used by the Land Board when it appeals its case. Until the fat lady sings, nobody can state with certainty who between the Balete and Land Board will win Round Two.

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