The protracted court battle in which Basarwa tribesmen seek to interdict the government from interfering with the burial of their relative has snow balled into a legal wrangle over land rights.
While the initial legal question was over whether Gaoberekwe Pitseng should be buried inside the Central Kgalagadi Game Reserve (CKGR) or not, government has now upped the stakes, arguing that no one has a legal claim over the CKGR.
The governments attack plan goes to the heart of the 2006 High Court ground breaking judgement by former judge Unity Dow which found that the eviction of 189 Basarwa from the CKGR was unconstitutional and allowed them to return to the game reserve.
The Director of Department of Wildlife and National Parks Kabelo Senyatso has deposed an affidavit that “no body is, by current law, entitled to be buried inside the CKGR.”
“It is averred that neither the applicant nor any person in Botswana has the right to bury their dead anywhere in the country where they please, such right as exist being limited by law,” he said .
Senyatso further stated that “it is further averred that the applicant (the deceased man’s son) nor any other person in Botswana has the right to bury their dead inside a game reserve or a national park or any other protected place.”
Senyatso said the Government has, however, as a matter of policy and respect “to the Courts permitted and will continue to permit only the surviving 189 people in the Sesana case., being the only individuals identified by this court as the applicants in that case.”
He further stated that, “The deceased had no title to any portion of the CKGR during his lifetime and is now a corpse without any rights nor entitlements, nor is a corpse capable of possessing land or anything else.”
Senyatso argued that the deceased lived and was resident in the CKGR from 1987 to 2014 whereafter he was a permanent resident of New Xade.
“No evidence that the deceased had a home in the CKGR having been produced; the conclusion to be reached is that he had none,” he said.
He added that no evidence that the deceased was one of the applicants in the Roy Sesana case having been produced; the conclusion to be reached is that he was not.
“No evidence that there were, nor the identities of the alleged 29 applicants in the Roy Sesana case, nor that the deceased was one of them case having been produced, the only conclusion to be reached is that the deceased was not an applicant in the Roy Sesana case,” said Senyatso.
The deceased man’s son. Lesiame Pitseng argued that his father was a litigant in the Sesana case and deserves all the benefits that accrue to all applicants in that case.
“We know now that Calvin Kamanakao, Kametse Mahame, Mokwepa Ngwaa, El Negro and many other corpses were buried in the game reserve or national parks,” he said.
He said his father was a permanent resident of the CKGR and has a homestead where he currently resides.
“In addition, my father was applicant no. 163 in the Sesana case and he has equal rights with the 189 applicants,” Pitseng stated. He said the government cannot only assert that only 189 people deserve to be buried in the CKGR and extend the list by arbitrary criterion only known to the government.
“As stated Mokwepa Ngwaa and Kametse Mohame were permanent residents of the CKGR and residents do not need permit or do not need to be part of Roy Sesana case to be buried in the CKGR,” he said.
Pitseng said: “It is trite that a corpse is buried at its ancestral land to comply with cultural rites, norms and traditions, My father was born here in CKGR and to date has homestead in CKGR which homestead I reside at as his son.”
Pitseng said his deceased father has “native titles or rights to be buried in CKGR.”
“I aver my father was and still is a permanent resident of the CKGR. He said his father resisted relocation in 1997 and in 2002 instituted litigation against the Government in the Roy Sesana case.”
He further argued “that many Batswana have multiple homesteads in different locations, different tribal areas and different towns and citizens and such fact cannot be used to determine whether he relocated forever or not.”