The land battle between a quarrying company and Balete tribe over a farm lying south of Gaborone is far from over.
Quarries of Botswana (PTY) LTD is seeking relief that the Court of Appeal set aside the judgment in a case it lost against GaMalete Development Trust (GDT) over access to a road that traverses the tribe’s freehold farm. Last month Lobatse High Court Judge Dr. Key Dingake dismissed, with costs, the quarrying company’s application for an interdict after the tribe blockaded its haulage trucks from trespassing farm Forest Hill 9-KO belonging to the tribe from the A1 Highway.
The company held that the conduct of GDT was unlawful and that Quarries of Botswana has a public right of way through the farm. The company asked the court whether or not GDT’s conduct was unlawful in placing a boom across an entrance to farm Forest Hill and preventing it the use of the route that traverses the farm. The company argued that the freehold farm was tribal land incorporated by Section 7 of the Tribal Territories Act. The freehold farm was incorporated into BaMalete Tribal Territory through the amendment of the Tribal Territories Act of 1972.
In dismissing the application, Judge Dingake ruled that it cannot be credibly said that because the remainder of farm Forest Hill is part of the tribal territory of Balete then “ipso facto or ipso jure” it becomes part of tribal land to be governed by the Tribal Land Act.
“If Parliament had intended such far-reaching consequence to extinguish or take away pre-existing rights, it would have said so in very clear terms. The view I take is that no parliament can be presumed to act in a high-handed fashion that extinguishes rights, willy- nilly without complying with the principle of natural justice or without recourse to the principle of international law,” said judge Dingake, delivering judgment. The judge said that Balete Tribe and Kgosi Mosadi Seboko are registered and legal owners of farm Forest Hill bearing Deed of Transfer No. 387/1925.
In its grounds of appeal the company, among others, contends that the finding by the court that remainder of farm Forest Hill 9-KO is the private property of Balete and therefore not subject to the provisions of the Tribal Land Act. Quarries of Botswana also wants to show that the court erred and misdirected itself in holding that the rights of the tribe as they relate to the farm have not been extinguished in clear and unequivocal terms by virtue of the provisions of Section 7 of the Tribal Territories Act as read with Sections 10 and 13 of the Tribal Land Act. Further, the company holds that the Court erred and misdirected itself in holding that the only way that rights registered in the Deeds Registry in terms of the Deeds Registry Act can only be transferred through a Deed of Transfer and thereby failed to avert its mind to the provisions of Section 8 of the Deeds Registry Act as well as Section 7 of the Tribal Territories Act.
Quarries of Botswana is represented by Monthe Marumo & Company while the tribe is represented by Ramokhua Attorneys.