Balete to know their fate in May
Land board wants to relief the tribe its farm Tribe vehemently oppose the move.
Apanel of three high court judges will pronounce judgment in a case in which Malete Land board has taken Kgosi Mosadi Seboko and Gamalete Development Trust to court on 21st May.
The case was heard virtually on Monday by three judges - Gabriel Komboni, Michael Mothobi and Mokwadi Gabanagae. Led by Justice Komboni, the judges ordered court to stop due to technical glitches. Komboni told parties that the court “will decide on the basis of the filed pleadings and the heads of arguments filed by the parties”.
The court also agreed to the Land Board’s request to supplement their heads of arguments and they were to do so by next week Tuesday. During the arguments, there was a suggestion that the interpretation of Section 8 in relation to the acquisition by the Land Board be referred directly to the Court of Appeal instead of the high court deciding it.
However, Justice Komboni said that they will decide all the issues and not refer as requested.
The Trust’s advocate Geoff Budlender SC of Cape Town, said in the first instance his clients seek the dismissal of the Board’s application. He said that the legislative scheme and its effect have not deprived the tribe of ownership of the farm or vested it in the Board. Therefore there is no basis for the cancellation relief sought by the Board.
Should the Court, however, uphold the Board’s interpretation, then the Tribe submits that the legislative scheme is constitutionally invalid. The Tribe seeks orders declaring that Section 7 of the Tribal Territories Act ( TLA), alternatively the Tribal Territories Amendment Act ( TTA) of 1973, alternatively section 10( 1) of the TLA, alternatively the repeal of section 10( 2) of the TLA by Act 14 of 1993, is invalid and striking down those provisions, as well as declaratory relief that the farm vests in the Tribe.
In that case, the Board’s application must still be dismissed.
As for costs, the Tribe submits that should the Court find in its favour in either the application or counter- application, costs must follow the result. As the Attorney General has entered the fray in conditional-counter application and defended the constitutionality of the legislative scheme, the Tribe seeks costs also against the Attorney General jointly and severally with the Land Board. Due to the complexity of the matter and the importance and nature of the issues involved, the Tribe seeks the costs of two counsels.
Budlender stated that should the court find against the Tribe, and then they will submit that each party should pay its own costs. He referred to the Bio watch rule developed in the South African Constitutional law, which provides that in litigation between the government and a Private party seeking to assert a constitutional right, if the government succeeds, ordinarily each party should bear its own costs.
He argued that the Bio watch rule has been adopted in Namibia, Zimbabwe and Lesotho. The only Botswana’s Court of Appeal decision that referred to the rule, found in Botswana Law Reports, held that it was inapplicable to that case.
Budlender stated in the main application, that the Land Board seeks an order directing the Registrar to cancel the Deed of Transfer in favour of the Tribe in respect of the farm.
The Land Board contends that various provisions of the TLA ( Cap 32: 02) and the TTA ( Cap 32: 03) ( and a subsequent amendment have vested it with ownership of the farm. The tribe opposes the main application on two alternative bases.
The first is that properly interpreted, the two Acts and the amendment do not divest it ( tribe) of its ownership and other interests in and rights over the farm. The Board’s contrary interpretation that it has is not to be preferred as that would result in a violation of the Tribe’s constitutional rights.
He argued if the Board’s interpretation of the legislative scheme is upheld, the Tribe then challenges the constitutional validity of the two Acts. The Tribe asserts that the Legislative scheme has violated its right in Section 8 of the Constitution to be protected from deprivation of its property.
The acquisition of the farm was not necessary, no compensation has been paid or offered, and no provision has been made for the High Court to determine the Tribe’s rights in the farm. The legislative scheme is also discriminatory and in breach of Section 15 of the Constitution. Among other things, it treats the civil rights of tribes and their members less favourably than the treatment of non- tribal citizens, on the sole ground of their membership of a tribe.
He said the Board refers to a judgment of the Court of Appeal – Quarries of Botswana – which, the Land Board contends, held that the Tribe was divested of the Farm. Before the Court of Appeal’s judgment, the Board never took the view that the Farm vested in it.
The Board argues now that constitutionality of the Farm’s acquisition was determined by the Court of Appeal and that the Tribe is precluded from raising it in this case. This contention is incorrect, as the constitutionality of the legislative scheme – and its breach of the Tribe’s rights – were never challenged before or considered by the Court.
Representing the Land Board, Advocate Nigel Reidman SC of Paul and Partners in Johannesburg, South Africa submitted that there is no merit in counter application by the Trust and it should be accordingly dismissed.
He said the answering affidavit and the counter application by the Trust are devoid of any facts justifying the conclusion that the provisions of Section 7 of the Tribal TTA, 1973 Section 10 ( 1) of the TLA and the repealing of section 10 ( 2) of the TLA are in any way discriminatory in themselves or in their effect
The amendment of Section 10 ( 1) of the TLA ensures that the properties falling within Bamalete Tribal territory are utilised by the Land Board for the benefit and advantage of citizens of Botswana and for their purpose of promoting the economic and social development of the people of Botswana.
He said it is difficult to conceive how this section can be seen as discriminatory of anyone.
Representing the Attorney General, Advocate Otsile Rammidi submitted that the counter application is without merit, and ought to be dismissed. He said the AG does not seek for an order for costs.
In his Heads of Arguments, Rammidi submitted that neither one of the provisions challenged by the Trust facilitates a compulsory deprivation of property within of Section 8 of the constitution.