Short notice pushes back Malete Land appeal
An appeal in which the Attorney General (AG) and Malete Land Board are appealing a judgement in which they were denied ownership of Kgale Farms, has been pushed to the July session of the Court of Appeal (CoA).
The appeal was scheduled for the ongoing session, but the parties requested a push back due to the short notice.
Both parties felt it was short notice since they sought to engage advocates for the matter.
At the time of postponement, the AG and Malete Board had individually taken a decision to appeal the Kgale Farms decision that bestowed the farmland back to the Balete tribe following a lengthy legal battle led by Kgosi Mosadi Seboko on behalf of her tribe.
The AG, which represents the Registrar of Deeds, filed their notice of appeal at the CoA shortly after the High Court bench ruled against them.
The Registrar of Deeds office together with Malete Land Board were pushing for the cancellation of the title deed covering a portion of Farm Forest, known as Hill 9-KO owned and managed by the tribe, while the Land Board insists they were the rightful owners.
In the court papers filed before the CoA, the AG wants the orders reversed.
Contained in the grounds of appeal, the AG contends that the court was wrong in ruling that the farm belonged to the tribe rather than the Land Board.
“The court erred in finding that the land belongs to the tribe and that the land in question did not immediately upon its acquisition in 1925 become part of and fall within the Bamalete Tribal Territory,” AG argued.
The AG said the court was wrong in finding that the land in terms of the Deed of Transfer in respect of the remainder of the Farm Forest Hill 9-KO was not included in the Bamalete Tribal Territory in circumstances while the appeals court had expressly found that the land had been included.
Further the AG argued that the bench was wrong to decide on the matter that has already been decided by a higher court before.
“The court erred with respect, in exercising the jurisdiction and making factual and legal findings upon a matter in which the Court of Appeal had made findings and decisions to the contrary. The court below was bound by the decision of the Court of Appeal in the Quarries of Botswana case,” argued the AG.
Subsequently, the AG wants the CoA bench to direct the Registrar of Deeds to cancel Deed of Transfer while directing the tribe to deliver the floating copy of Deed of Transfer.
“Directing that should Kgosi Mosadi Seboko and the Bamalete Trust fail, within 14 days of the date on which they are called upon to do so, sign such documents as they are required in order to ensure the cancellation,” the AG argued.
The Malete Land Board argues that the Farm does not belong to the Balete tribe.
On the other hand, the Land Board’s case is that the High Court erred in realising that the acquisition of the contested farm was not unconstitutional because it was done with the consent of the tribe by own admission in a previous court case relating to the same issue.
The Land Board, which has been trying to cease the tribe’s ownership of the farm by canceling its title deed, explained and admitted that subsequent to the introduction of the Land Boards, the tribe was the one that made request for the State to manage its various farms.
“The land was incorporated into the Bamalete Tribal Territory at the request of the tribe and pursuant to an amendment of the Tribal Territory Act of 1973,” read the documents. The Land Board argues that the High Court erred in not taking into account that the incorporation of the property as part of the Bamalete Tribal Territory was effected with the consent and agreement of the tribe.
As such the Land Board wants the judgement set aside submitting that the incorporation of the farm into the tribal territory was done unanimous at the approval of the House of Chiefs, which included the Kgosi of the Balete tribe.
“The court should take into account that the amendment of Tribal Territory Act merely gave effect to the agreement, which had already been reached between the tribe and the Land Board,” stated the Land Board.