An appeal by the now late former Botswana Congress Party Member of Parliament for Kanye South, Sidwel Gabatshwane, was recently dismissed by the Land Tribunal President, Gaesiti Baruti.
In dismissing the appeal, Baruti said the appeal did not have merit and ordered that the fence erected on the land by Gabatshwane, who passed away two years ago, be removed within four months.
Baruti said that besides the assertions of Gabatshwane and witnesses that the chunk of land in question was for his exclusive use, there was nothing to prove the exclusive ownership of land.
Baruti further said that none, on the part of the Chieftaincy, was called to testify that indeed the Moche family, Gabatshwane’s people, was given exclusive ownership of land which in effect is part of the Ngwaketse Tribal Land.
Besides, he said, even if such evidence were led, the legality of such action would be doubtful and challengeable in the face of the Tribal Land Act.
Unless a party who claims that he has exclusive rights over land can prove it, Baruti said that a chunk of land in a tribal area is used communally and not exclusively by a section of wards of a given tribal grouping.
Baruti also stated that although Gabatshwane vouched that the Moche family land was for the family’s exclusive use, the evidence and factual circumstances on the ground revealed otherwise as some tenants, like Rowlands, Seitiso and 10 others, had, with permission from the Ngwaketse Land Board, carved out various user rights over pieces of land within the Moche family land. This, he said, proves that the land was never for the exclusive ownership of the Moche family.
On Gabatshwane’s claim that he had chased some of the settlers from the land as they had settled against his wish, Baruti said that this did not put the land into his exclusive ownership because he had allowed some to settle on it.
Further he said that Gabatshwane had stated reasons why he had allowed Rowland, Seitiso and ten others to settle on the land and did not drive them out.
Gabatshwane, the Land Tribunal President further stated, had not put forward concrete and credible evidence to demonstrate that he filed any eviction action against the hordes of settlers.
The above points, he said, mean that Gabatshwane had failed to prove the exclusivity that he had alleged adding that the land in question is, as a result of that failure, a communal piece of the Ngwaketse Tribal Authority, used commonly for tribal grazing and that other uses, such as agriculture, had now been added to the land.
Baruti further said that Gabatshwane had not put concrete evidence before the Court to the effect that the land was held by the Moche family in their personal and private capacity, adding that he had failed to produce concrete and credible evidence to demonstrate that he was holding the land in his personal or private capacity. Baruti said that it was not enough to assert personal and private capacity ownership without credible evidence to support the assertions.
Gabatshwane, or any of his family members, he said, did not have any exclusive ownership over the land in question and that he only had exclusive title or user right over his borehole.