The protracted war between Balete tribe and Malete Land Board over ownership of farm Forest Hill 9-KO is set to continue at the Court of Appeal (CoA).
The Land Board has taken a decision to challenge the High Court ruling that Farm Forest Hill 9-KO does not lawfully belong to them.
The decision prompted Balete Paramount Kgosi Mosadi Seboko to pen an open letter last week expressing her frustrations at what she said was continued violation of human rights and the Constitution by the Botswana government particularly sections three and eight. “Is this because I am a woman or how else can one describe this kind of discrimination against myself and the tribe,” the letter reads.
In their appeal the Land Board argues that the High Court erred in finding that Farm Forrest Hill 9-KO belongs to the tribe. The government cites a 2011 CoA judgement in Quarries of Botswana (Pty) Limited v Gamalete Development Trust and Others which they say expressly found that ownership of the farm did not vest in the tribe but with the Malete Land Board.
“The Court of Appeal had, in Quarries of Botswana (Pty) Limited v Gamalete Development Trust and Others, expressly found that the statutory termination of Bamalete freehold title to the land in question and the vesting of the land in Land Board was not unconstitutional.”
In a unanimous ruling earlier this year a three panel of Judges of the High Court found that the 2011 CoA judgement in Quarries of Botswana (Pty) Limited v Gamalete Development Trust and Others never made a determination as to the ownership of the land.
Delivering the judgement at the High Court in May this year Justice Michael Mothobi said contrary to what the Land Board argued the quarries case was primarily an interdict to enforce the existence of a servitude of Public Right of way or a way of necessity which had existed over the farm from time immemorial.
The main matter before the CoA, he said, was not the constitutionality of the compulsory acquisition of the property but servitude of right of way over the property.
He said this was clearly indicated by the notice of motion in the same case. “The issue of ownership of the farm was decided in the context of the application of an interdict and this is not an unusual occurrence in interdict applications where the legal requirements of an interdict particularly the requirement of a clear right comes into play. In upholding the appeal, the Court of Appeal made the following order: ‘the Trust, Kgosi Seboko, and the tribe are restrained from impeding the use of that portion of Mokolodi Road which traverses the farm Forest Hill by the Applicant, its directors and employees, in the exercise of their function and fulfilment of their duties in the conduct of the business of Mokolodi Quarry’.”
Mothobi also said there was need to clarify that the Land Board was originally not a party to the Quarries case.
“The Land Board was added as 5th Respondent by the Court of Appeal at its own motion after it appeared that it could be an interested party in respect of the ownership of the farm.” He said the Land Board at the CoA filed an affidavit disavowing ownership of the same farm and indicating that as far as it knows and informed by legal opinions tendered by the Attorney General the farm belonged to the tribe. Mothobi said it was therefore surprising that now the Land Board is relying on the very same judgment to claim ownership or jurisdiction over the farm.
The High Court panel also dismissed the points raised by the Land Board in relation to res judicata (that a matter has been adjudicated by a competent court and therefore may not be pursued further by the same parties) and estoppel (he principle which precludes a person from asserting something contrary to what is implied by a previous pertinent judicial determination).
“The Court a quo erred, with respect, in finding that the issues of res judicata and issue estoppel were not, on the declared or any other basis, sufficient to prevent it from granting the judgment and orders it did,” the Land Board argues in the appeal.
The High Court in May this year dismissed the points in respect of res judicata and issue estoppel on the basis that the Court of Appeal did not decide the issue of ownership and the Constitutional issues now raised. “We therefore hold that the Court of Appeal did not deal with and determine the issue of ownership of the farm together with the Constitutionality of section 7 of the Tribal Territories Act of 1973.”
Kgosi Seboko and the tribe have also through their lawyers Oteng Motlhala, Tshiamo Rantao, and others filed a cross-appeal calling on the CoA to , among others, find that the High Court erred in finding that there was not a sufficient basis and evidence to consider the Tribe’s challenge to the constitutionality of section 7 of the Tribal Territories Act, orthe Tribal Territories Amendment Act of 1973, orsection 10(1) of the Tribal Land Act, or the repeal of section 10(2) of the Tribal Land Act by Act 14 of 1993 (the ‘legislative scheme’) for being inconsistent with section 15 of the Constitution of Botswana and invalid, on the grounds that the legislative scheme is discriminatory.
