The Ngwato Landboard has lost, with costs, an appeal over a ranch it had allocated to Modisakgotla Makwati in exchange for his cattle post but then decided to withdraw the ranch on grounds that the Malatswai community was no longer interested in the cattle post.
In their judgment, the judges said that after listening to submissions from the applicant, represented by Isaac Bahuma, and to the respondent, represented by Doctor Pusoentsi, and perusing all the relevant papers, including the High Court judgment of Chief Justice Maruping Dibotelo, they came to the conclusion that the respondent, Makwati, was not given a fair hearing before the allocation of a ranch was withdrawn.
The Court of Appeal judges also found that Dibotelo was right in his judgment when he said that once a statutory notice was issued showing intention to sue for withdrawal of ranch, it was too late for the Landboard to try and hold a hearing to correct the failure to give respondent a hearing before taking the decision to withdraw the offer.
They said the corrective step if the land board had realized its error “would have been to abandon the decision it made and not continue to hold on impugned decision while at the same time trying to conduct a hearing. It was not one of those matters where the decision had to remain in place while a hearing on it was being conducted”.
Like Dibotelo had said in his judgment that the hearing into the allocation that later followed after the withdrawal of the allocation was “a sham”, they also made a similar finding but adding that there was ample material to support that view.
For instance, they said that although they were aware that they had committed a procedural irregularity, which rendered the decision to withdraw the allocation invalid, the land board had at no time acknowledged the impropriety by way of abandoning the irregular decision but continued to purport to give Makwati a ranch whilst at the same time holding to its withdrawal.
The judges said that the Landboard gave only one reason for revocation of the allocation being that, Malatswai community had withdrawn from the deal which the Landboard had sought to facilitate.
They said this was despite that, even at a glance, this reason loses sight of the fact that at the meeting of 24 November to 5 December, 2008 the Landboard allocated Makwati farm Number 58 when fully aware that Malatswai community had withdrawn from the deal.
The Ngwato Landboard had discussed this issue at lengthy and even sought legal advice and in the end decided to allocate the farm to Makwati.