For months or years now, the tribal administration in Mochudi has been pestering the Kgatleng District Council demanding prove of ownership of the old Linchwe Primary School buildings in the village. Failure on the part of the district council to produce prove of ownership would automatically mean that the building belongs to the tribe and it could do whatever it wanted to do with it. And again, for months or years now, the district council has consistently failed to produce prove of ownership. Shortly after the 2019 general elections, the council chairman, Daniel Molokwe was asked during a kgotla meeting to tell if they could produce documentary evidence proving that the building is theirs. He said he was new in the council and that he knew nothing about ownership of that building.
He promised to find out from those who had been there before. Linchwe Primary School was moved to a new site in 2012 due to lack of space for future expansion. The old buildings were then utilized by accommodating some council departments while the other part was rented out to a private school. The issue was brought to the kgotla again in November last year where the council again failed to provide the documentary evidence to prove ownership. It was as if they were playing hide and seek. During that November kgotla meeting, Molokwe was accompanied by the council secretary, Boitumelo Matenge. When called upon by Deputy Kgosi Sekai Linchwe to produce the long awaited evidence, they were still empty handed. They asked that they be given sufficient time to research.
Matenge said they would need to go to the ministry offices in Gaborone, the attorney generals’ chambers or even the National Archive and Records Services. They requested that they be given until March to look for such evidence. In addition to proving ownership, Sekai had earlier asked them to say how much they had collected so far since the building was rented out to private persons to run a school called Cornerstone English Medium Primary School. It is strange that it should take the council years to research on such a small thing, with all the resources at its disposal. Just across the street next to the main gate of the Rural Administration Centre which houses the district council, there is the National Library Services which should have been their starting point if they were serious about doing a research on the subject. Besides that, they could have driven an officer to Gaborone in the morning and come back in the afternoon fully armed with the documentary evidence that is required to back up their claim. That would not have been the end of the road. Somewhere in their old files, the answer is there. It only needed someone to excavate evidence from their records unless their record keeping is very poor.
In 1973 or 74, the BDP councillors led by Greek Ruele, Kobedi Matlhaga and Ratsela Mogotsi questioned the wisdom of having transferred tribal administration properties by legislative means but leaving out Masama Livestock Centre. The centre is a livestock breeding entity aimed at selling improved livestock to the people. They deferred the issue upon hearing that, Kgosi Linchwe was opposed to the transfer of the centre and that he would refer the issue to the Kgotla for finalization. The council feared that the Kgotla would side with the Kgosi and lambast them. That debate gave glimpse of how the tribal properties became the properties of the district councils. Again in 1984, the BNF run council resolved to take over the same centre arguing that it was one of the properties which should have been transferred to the council by the 1965 legislation establishing district councils. I then discussed the BNF council resolution with Kgosi Linchwe.
He was aware of it and chose to quietly wait for the council to implement their resolution. Implementation failed and to date, close to 40 years later, the centre still belongs to the tribe. The debate on the issue was minuted and those minutes are somewhere in the shelves of the council. Instead the delay in providing evidence gives credence to the tribe’s claim that they own the building. Had the council acted promptly when the issue was first raised instead of waiting for years, the issue would now be history. Their delaying tactics have given the community the wrong impression that it is the tribe who have legitimate claim to the building. Generally, councils have internal lawyers to advise them on legal matters. Could it be that the Kgatleng District does not have one or that the council did not refer the matter to him? Similarly, councils have public relation officers. Could it be that in Kgatleng there is no one? This deserves to be laughed at. In short, it is ridiculous.
The other thing which should be examined is that it is often held that “he who alleges must prove.” Why is it that the tribe is not being asked to produce documentary evidence as prove of its claim? Is it on account of cowardice on the part of the council to confront the tribe with that demand? In this case, it is only the council which is being sent from pillar to pillar as if they are subordinate to the tribal administration.. When I started working on this story, it took me less than 30 minutes to uncover evidence of who owns the building. I simply drove to the Government Enclave in Gaborone and came back fully armed with the answer which will definitely rescue the district council from the lion’s claw. Isn’t that interestingly? Doesn’t this expose the weakness or laziness in the council? Here is what the council should present to Kgosi Sekai and the tribe the day they meet again in March.
They should say the 1965 Bechuanaland Protectorate Statute Law declares the council the legal owner of the disputed building. Furthermore, they should say by renting out the property to individuals, the Kgatleng District Council committed no sin, broke no law and cheated nobody and owed nobody an apology. That building legally belongs to the council. The tribe has no right to lay any claim to it. Whoever came up with the suggestion that the Linchwe Primary School buildings belong to the tribe was dreaming. Of course those buildings were put up there by the tribe way back in 1903 under the guidance of Kgosi Linchwe I. He provided ox-wagon to transport thatching grass from the foot of the Kgale Hill in Gaborone. When he was still alive, Amos Kgamanyane Pilane who was born in 1888 told me that the other ox-wagon was provided by my great-grandfather, Rakanyane Pilane after whom I was named. But when the country gained self government in 1965, a clause dealing with transfer of assets and liabilities of tribal treasury to council became part of the Bechuanaland Protectorate Statute Law. The relevant subsection reads, “upon the establishment of a council in respect of any area, all the assets of any tribal treasury established for, or for any part of, that area shall, by virtue of this sub-section and without further formality, be transferred to and vested in that council, subject to all encumbrances to which the said assets or any of them are subject immediately prior to such transfer and vesting.”
It continues, “all the liabilities of any such tribal treasury shall, by virtue of this sub-section and without further formality, be transferred to and be those of the council, and the tribal treasury shall cease to be subject to those liabilities. The last part of this sub-section reads, “Any such tribal treasury shall, notwithstanding anything contained in the Tribal Treasuries Proclamation {Cap.67) and by virtue of this sub-section and without further formality be dissolved.” The use of the word “shall “instead of the word “may” in this sub-section should not be ignored. It makes it mandatory. In other words, it is not negotiable. Most of what the tribal administration owned at the time is no longer theirs. So the tribal administration, if they had hoped to rip something from appearing to claim ownership of that building in Mochudi, should be advised to rest their case. Their case does not have legs to stand on. Furthermore, I have an undated seminar paper on the decline of the chiefs.
It too makes reference to numerous legislative Bills which were introduced in Parliament immediately after the 1965 general elections. Those Bills were aimed at weakening the powers of the chiefs. It mentions the 1965 Chieftainship and the 1965 Local Government (District Councils Bills.) The first regulated the appointment and removal of chiefs, regents, deputy chiefs and headmen. Its effect was to strip the chief of all his legislative powers and executive authority. Others were the Local Government Tax Act which gave the district councils power to raise taxes, the Matimela Act which transferred powers in relation to stray cattle from the chiefs to the district councils. Later, the Tribal Land Act which established local land boards to allocate and administer the tribal land was enacted to held serve further to diminish the powers of the chiefs. In 1974/5, the district council abandoned another historical building which served the tribe for many years as a school. It was also abandoned due to lack of space for future expansion and also because children went to school at a tender age and it was therefore difficult for them to ascend the Phuthadikobo hill top. Kgosi Linchwe II wanted it converted into a community museum.
Because he was aware that it no longer belonged to the tribe because of the 1965 political and administrative changes, he approached the district council requesting that it be handed over to the tribe. The approach was diplomatically balanced, politically balanced and administratively balanced. Because there was no arrogance in his approach, the district council unanimously agreed to hand over the building to the tribe and that is why today the village can boast of having one of the best run community museums in the country. Well, Kgosi Linchwe was a different breed. The problem is that nobody at the helm of the tribe today was able to copy his style of leadership. One of the buildings currently standing at the main kgotla in Mochudi originally belonged to the tribe as they are the ones who constructed it during the protectorate days.
When the district council moved to the Rural Administration Center, the building reverted to the tribal administration for use as their offices. It is not clear as to whether it was legally transferred back to the tribal administration or whether it was gentleman’s agreement. But the chances are that legally it too belongs to the district council although during the last conflict between Bakgatla and the Government, one of the royals in Mochudi was heard displaying his ignorance by threatening to evict government officials “from my father’s office.” That was wishful thinking. He would have been in troubles with the law.
