The Lobatse High Court is yet to set the date on which it will listen to the application by residents of the Central Kalahari Game Reserve who want access to water from a borehole at Mothomelo.
Arguing their case before Justice Lakhvinder Walia, the CKGR residents, among them, Matsipane Mosetlhanyane and Gakenyatsiwe Matsipane, want the Attorney General to permit them to bring the borehole back into operation at their own expense.
They also want the court to find that the refusal by the government to allow them to do that is unlawful and unconstitutional.
The residents want the High Court to determine that “refusal or failure of the Attorney General to confirm that on payment of the specified fees, it will issue permits under Regulation 4 of the specified fees to any reputable contractors appointed by or on behalf of the CKGR residents to enter the CKGR on behalf of the CKGR residents to recommission the borehole for the above said purposes is unlawful and unconstitutional.
“Further that the refusal or failure by the Attorney General to confirm that the residents of CKGR have the right, at their own expense, to sink more wells or other boreholes on land in CKGR, and to extract water for domestic use from them in accordance with Section 6 of the Water Act, is unlawful and unconstitutional.
“To also find that failure of the respondent to confirm that on the payment of the specified fees it will issue permits under the said Regulation 4 to any reputable surveyors or contractors appointed by or in behalf of the residents of CKGR to identify suitable sites for and sink one or more boreholes for use of water for domestic purposes is unlawful and unconstitutional.
To support their case, Mosetlhanyane, in his affidavit prepared by their lawyer, Duma Boko of Boko and Associates, says that at its 92nd session in New York between 17 March and 4 April 2008, the United Nations Human Rights Commission noted that they had “noted with concern reports that not all relocated persons will benefit from the High Court decision in the Roy Sesana vs Attorney General case” and concluded that “the state party should ensure that all persons who were relocated are granted the right to return to CKGR, consistent with reasoning of the High Court decision and that it takes all necessary measures to facilitate the enjoyment of covenant rights by those persons upon their return.
“Further that Botswana is a party to the African Charter on Human and People’s Rights Article 16 which guarantees the right to enjoy the best attainable standard of both physical and mental health, and that failure by the state to supply basic services such as safe drinking water has been found by the African Commission to be in violation of the Article”.
In conclusion, Mosetlhanyane states in his affidavit: “I am afraid that the government’s attitude appears to be that if we want water we should go to New Xade or Kaudwane where there is plentiful supply of water.
“If we elect to remain in the reserve, as it is our right under the court judgement, we must not expect the government to help us or to allow us to help ourselves in any way. We must be prepared to put our lives at risk”.
The question for the court, he said in the affidavit, is “whether the law and constitution of Botswana requires us to expose ourselves to this risk when there is water available to us from a source within the reserve at no cost to the government for which no one else can conceivably have any need. We ask this court to hold that it does not”.
The Attorney General is represented by Boingotlo Toteng of Toteng and Associates.