Lobatse High Court judge Key Dingake has dismissed an application for a final interdiction brought before his court by Quarries Botswana against GaMalete Development Trust.
Quarries Botswana wanted Justice Dingake to declare that the conduct of GaMalete Development Trust and Tshepo Phuthego, in preventing them from traversing Forest Hill farm, by placing a boom across the entrance to Forest Hill farm, was unlawful.
Quarries Botswana argued that they enjoy servitude of right of way over the farm and access to the A1 Highway. They argued that the route through the farm has been in existence and in use for over 30 years, and should be declared a road in accordance with the law.
But Justice Dingake dismissed their application, saying Forest Hill farm belongs to GaMalete Development Trust as reflected in the title deed, and that any person or entity claiming ownership must show that the said farm was duly transferred by a deed of transfer, or duly acquired in terms of the law.
“This court has not been furnished with evidence suggesting that the title deed of Forest Hill farm was ever passed to any entity as required by the Deeds Registry Act,” he said.
He further said the fact that part of Forest Hill farm is located in Bamalete Tribal Territory does not automatically mean that it is governed by the Tribal Territories Act.
“The Balete tribe, as represented by Gamalete Development Trust, and Kgosi Mosadi Seboko of Balete, are the registered owners of Forest Hill farm,” said Justice Dingake.
While the route through Forest Hill farm has been used by the public for the last 30 years, he said, there is no evidence to suggest that Quarries Botswana can be regarded as a member of the public, especially when taking into consideration the nature of its operations.
Justice Dingake said he is satisfied that right of way is extended to the public, especially those living around Mmokolodi. He, however, said no servitude rights of way over the remainder of Forest Hill has been registered on the title deed of the said property , and further that there is no endorsement on the farm’s title deed entitling Quarries Botswana to transverse the property.
Gamalete Development Trust was represented by Kgalalelo Monthe, while Makati Mpho represented Quarries Botswana.