Galesiti Baruti, the Land Tribunal President, has upheld an appeal brought before him by Sand Valley Syndicate, in a matter regarding the allocation of a borehole to a Tsabong farmer, Gerhardus Esterhuizen, and ordered Kgalagadi Land Board to do the following amongst other things:
That Esterhuizen’s borehole, which is equipped and operating, is declared to be illegal and be sealed within three months.
That, because Sand Valley Syndicate had applied for the land before Esterhuizen, the Land Board should within three months consider Sand Valley Syndicate application and allocate it a borehole point subject to applicable laws and policies before considering that of Esterhuizen.
That , Esterhuizen’s allocated point is declared to be illegal and any certificate for the point shall be cancelled forthwith with no order for costs.
Upholding the appeal , Baruti said that Kgalagadi Land Board seems to have been hamstrung by the fact that Esterhuizen had spent so much money in drilling and equipping the borehole, which is not even in his located point.
“Issues of legality and illegality must be looked at through the lenses of law and not through the pocket of the individual,” he said. “If an act is illegal, it is illegal and that the fact that he may have spent a lot of money does not transform an illegal act into a legal one,” he stressed.
The Land Tribunal President further said that, Esterhuizen’s borehole and allocated point are tainted with illegality in that, as the above analysis shows, they were allocated per a recommendation in which Esterhuizen took part, contrary to regulations 7 (5) because “no man shall be a judge in his own Court”.
Further to that, he said although the point is less that 8 km from the nearest point, it was allocated without any range assessment and that range assessment was only called for when appellant came along. Such a conduct, he said, placed Sand Valley Syndicate at a disadvantage, which Esterhuizen was never made to suffer.
He conceded that it is clear that Sand Valley Syndicate applied first and proper application of first come first serve principle required that Sand Valley Syndicate had to be considered first, in case it would most likely have been allocated and that it is Esterhuizen who would have been required to shift. Further to that, Esterhuizen drilled outside the 1 km radius of the allocated plot and that in his evidence he said that he was still to reticulate. But that what he was supposed to have done was to ask for permission to drill outside the 1 km radius before drilling. So, he said, by going outside the 1 km radius without authorization, he acted illegally.
On Esterhuizen’s submission that he went outside the 1 km radius following up an aquifer, Baruti said that there was nothing wrong in following an aquifer and that it, in fact, makes perfect sense to do so but that if the aquifer is outside the legally allocated radius any borehole drilled is an illegal borehole because the owner would be in an illegal occupation he was never granted or authorized to occupy.