Pandamatenga chief, Kgosi Rebecca Banika sighed with relief on Friday when the Francistown High Court set aside a decision by Chobe Land Board to consolidate seven commercial farms into two and subsequently allocate them to South African farmers at the expense of her community. The court further ordered the land board to pay costs of her application.
Pronouncing judgment, Justice Zibani Makhwade ruled that “in a democratic society it cannot be heard that a community living next to a resource such as land, which is required for normal existence can be disregarded when important prejudicial decisions are made. If such a position is adopted it can only lead to tension, suspicion and possible civil unrest. That however, is not to say, that the Land Board is obliged to comply with the opinion of the stakeholders.
“It is free to make decisions as long as such decisions are not procedurally and legally flawed. Where decisions are properly made it is not the function of the courts to interfere with such decisions”.
In his judgment, the presiding judge concluded that the decision to consolidate the seven commercial farms was made without consulting the community.
In what amounts to be a sympathetic position with the land board, Justice Makhwade observed that the land board found itself in the current position because of superior forces, referring to the decision of the parent Ministry of Lands and Housing in conjunction with the Ministry of Agriculture to consolidate the farms and change the initial plan of advertising them before direct allocation.
“The Land Board was fully aware of the likely consequences of the decision taken by the Ministry of Lands and Housing and the Ministry of Agriculture. As the authority in charge of the land the respondent is clearly more in touch with the local situation and how the same should be handled. Its views should have been given more weight by the seniors at the ministries”, pronounced Justice Makhwade.
The presiding judge said land vested upon the land board is entrusted for the purpose of the advancement of the lives of the people and the land in a sense belongs to the people from a social and economic perspective.
“Where promises or undertakings have been made it is expected that public authorities would act in accordance with such promises or undertakings. Where there are legitimate expectations, the same should be honoured. The history of human existence is characterized by conflict related to access to land. Land is a resource that should be handled with utmost sensitivity”, said Justice Makhwade in his 34 pages judgment.
The judge was adjudicating in a case in which Pandamatenga community was protesting against Chobe Land Board’s decision to consolidate the seven farms into two for direct allocation as opposed to the initially advertising plan.
Quashing the land board’s argument that the Pandamatenga community through its chief was seeking to usurp its mandate, the judge held that in terms of Legislation, section 10 (1) of the Tribal Land Act vests land upon land boards “in trust for the benefit and advantage of the citizens of Botswana and for the purposes of promoting the economic and social development of all people of Botswana”.
Section 11 states that the Land Board shall consult the District Council in the formulation of policy. “I did not understand it to be the position of the applicant that she should decide on policy issues. That would be clearly untenable. Chiefs no longer control allocation of land”.
The consolidated farms 96QO, 97QO, 98QO and 99QO were combined and allocated directly to Albertus Johannes Van Zyl of South Africa.
Farms 107QO, 108QO and 119QO were combined and allocated to Draftap Boerder Botswana also of a South African address.
It was subsequent to the consolidation and allocation of the consolidated commercial farms that Kgosi Banika approached the High court seeking the setting aside of the Land Board decision as in her view it adversely affected her community which had expected to bid for the farms as earlier announced by the Chobe Land Board.