Court of Appeal judges are on February 10 expected to pass judgment in a case in which the Ngwato Land Board is appealing against a judgment by Chief Justice Maruping Dibotelo who ruled that the decision by the Ngwato Land Board Secretary to withdraw allocation of ranch 502 to Modisakgotla Makwati be set aside.
A short history of the case is that Makwati was initially approached by the current President Ian Khama, who was then Member of Parliament for Serowe North West, and was asked if he could give his constituents the residents of Malatswai his properties at Khukhu cattle post for use as they had nowhere to water their cattle.
Khama further proposed that an alternative land will be identified for him and will also be compensated for developments. As a result of that, Makwati was then allocated a farm by the Ngwato Land Board but its Secretary later on revoked the allocation leading to the current case.
In their appeal prepared by Isaac Bahuma of Mack, Bahuma and Associates, the Ngwato Land Board lawyers are expected to submit that Dibotelo did not make an objective interrogation of the decision made by the Land Board and merely dismissed it because it came after the statutory notice.
That it was erroneous to dismiss a decision which otherwise satisfies all aspects of a fair decision merely because of timing.
If the hearing is to be reviewed and set aside, the decision making process ought to be interrogated and aspects of it that give credence to the argument that is flawed pointed out.
To the extent that the Court did not carry out that exercise, they will submit “it fell into error”.
They will further submit that the judgment by Chief Justice Dibotelo has placed emphasis on statutory notice he found to be the reason why Ngwato Land Board conducted a hearing and that the hearing “was in bad faith”.
Ngwato Land Board lawyers are also to submit that they have submitted in their affidavits that the letter written by the Land Board Secretary to Makwati did not constitute a final decision to rescind the allocation of the farm to him; that it was merely to stop further proceedings on the issue and that even without the statutory notice the Land Board would still have given Makwati a hearing. The omission of the Honourable Court to consider the hearing to Makwati had resulted in the Court falling into error in, amongst others, the following: that during the hearing, at no time did Makwati or his lawyer question the credibility of the hearing; that Makwati’s lawyer had, in fact, said that they will accept any resolution made by the Board.
Though conceding that allocation of land rests with the Land Board, they are to submit that it cannot be correct that once local Authority decides to allocate land its decision is binding and irrevocable. That each case is treated on its peculiar circumstances and that if decision to allocate is irrevocable, so should the decision to allocate.
Doctor Pusoentsi of Modimo and Associates is on the other hand expected to submit that the unilateral withdrawal of his allocation of a ranch violated the spirit of the Tribal Land Act and natural justice as there was a binding contract between the Land Board and Makwati relative to the allocation of ranch m502.
He will submit that this was made clear by the Ngwato Land Board in meetings of 24 November to 5 December 2008 that Ngwato Land Board only attempted to give Makwati a hearing in April after it had withdrawn the allocation of a ranch to him. He will submit that this is wrong as one cannot be called for a hearing after allocation has been withdrawn and after serving of a notice to sue.
