Saturday, March 6, 2021

Lobatse Council caught up in a controversial land dispute

Lobatse Town Council seems to be blowing hot and cold in a dispute with a local farmer over the erection and maintenance of a boundary fence that the local authority shared with the farmer.

Louis Herbst who owns farm, 13 13-JO, which is adjacent to a piece of land owned by the council had requested the local authority to help with the maintenance of the boundary fence between his farm and Lobatse’s piece of land, plot 1. In a letter dated 15 August 2012, the Lobatse Town Council turned down Herbs’s request stating: “that our property is not a farm as contemplated by the provisions of the Fencing Act and hence not subject thereto. The property is an expansion area for the town and is to be used for residential purposes.”

Through his lawyers, Mkwisa and Company, Herbst stated in a letter dated 24 June 2012 to Lobatse Town Council that “he has maintained the boundary fence of this property for a period of over 30 years without any assistance from you.

This is an extremely costly exercise as the fence is regularly cut by trespassers and our client has experienced considerable financial losses as a result of fires which originate from your property.” Herbst’s lawyers said they were surprised to read in newspapers that the very same property had been leased to Milk Afriq Company for the purposes of dairy farming. “As the property has since been allocated as a farm, we are of the considered opinion that the provisions of the Fencing Act of Botswana are in fact appropriate and applicable to the said property.

“Furthermore, in light of the information in the press, the fact that the diary farm is a public private partnership with Lobatse Town Council, we now request a meeting with your good selves in order to determine the contribution of the Lobatse Town Council towards the erection and maintenance of fencing the shared boundary,” said Herbst’s lawyers. In response to Herbst’s lawyers, the Council, in a letter dated 18 March 2013, stated that “we want to repeat our earlier assertion that Remainder of plot 1 (or the Council property adjacent to your client’s farm) has not been allocated as a farm and therefore is currently not subject to the Fencing zone Act.

However, the location is an agricultural zone. “We further confirm that the council has leased the property to Milk Afriq in pursuance of a public private partnership entered into between the two. While the lease has been signed, operations are yet to ensue. Upon imminence of operations, the property will assume the appropriate land use after proper change. It is relevant that the new use of the land may not necessarily be a farm.”

In a letter dated 19 April, Herbst’s lawyers expressed shock that “we were surprised by your advice that the property is actually an agricultural zone, whereas you had previously advised that the property was in fact an expansion area for the town and is to be used for residential purposes.” The Lobatse Town Council insisted that “our advice to you that the property is not yet categorised as a farm as title to it describes it as residential and our assertion to you that property is within an agricultural zone was only to demonstrate potential application of the Fencing Act after probable change of use.

The Local Authority also added that “While in the past you have demonstrated an intention to employ the fencing act it seems hypocritical of you to seek to complain against change of use or our property to ‘farm’ dismissing the fact that the Fencing Act can only be applicable when our property is a farm.”

It has also emerged that the move by the Lobatse Town Council to change a residential land use for Lot 1 measuring 1,375.4470 to an Agricultural land use to allow for the establishment of Milk Afriq might have been influenced by influential individuals who have personal interests in the 100 million Pula project.

The piece of Land was leased to Milk Afriq to be used solely for a dairy Milking parlour, paddock and pasture establishment, milk processing, offices, staff housing and related amenities only. The lease was to have commenced on the 31st January 2013 and continue for a period of 25 years.

In this 100 million pula project; Lobatse Town Council has a 10% shareholding in the joint venture while Milk Afriq takes the remaining 90%.

Agricultural Land Control Act, however, stipulates that Agricultural land in Botswana is usually held under Deeds of Transfer. In areas adjoining urban areas, long leases over portions of Agricultural Land are often granted by the lesser and such leases may be mortgaged. Agricultural land, however, may not be sold or leased to a non-citizen or a company in which less than 51% shares are held by non-citizens.

In this case the owner of Milk Afriq, a non citizen has a 90 percent shareholding while the remainder is held by Batswana.

The law however gives the Minister of Lands and Housing power to decide whether foreigners can be given 51% or more shares in the company that will own the farm.

Sources revealed that after Milk Afriq came up with the proposal Lobatse Town Council worked round the clock to change Lot 1 from a residential plot to Agricultural use.

Sources say the change of land use from residential to Agriculture was mainly done to accommodate Milk Afriq on residential area.

The land was first bought by Government from one Farmer, Paul in 1928 and was declared a residential area around 1986. The title deed for the residential purpose was first obtained in 2011 but sources say it was done illegally because it did not go through Surveys and mapping office to acquire certificate, to be presented to deeds office, they said the process was skipped.

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