Sweet Victory For Balete
Bamalete of Ramotswa heeded the Setswana saying ‘Moseka Phofu ya gaabo ga a swe lentswe’ and it turned out to have been worth it in the end.
For many years, the prime land they bought from community contributions was almost taken away from them, but they finally came out of a land war with sweet victory as the indisputable owners. In 1925, Balete used their own resources to purchase the Forest Hill Farm for grazing purposes for 3,000 sterling pounds. Since then, the farm has been managed and controlled by the tribe and neither the colonial government nor the Republic ever exercised any ownership or management in respect of the farm.
Briefing the media about their intentions to go all out and fight to keep their land in 2017, Kgosi Mosadi Seboko said the board had always known that the land belonged to the tribe until a Court of Appeal Judgement in 2011.
The court ruled that the land forms part of the Bamalete Tribal Territory and should be administered by the Land Board, a decision which reversed the decision of the lower court, which has ruled in favour of Balete in a case against Botswana Quarries.
The plan to fight back with all their might came after their effort to engage the then president Ian Khama had hit a snag. Some foreign investors supported by Botswana Investment and Trade Centre (BITC) were earmarked to be allocated part of the land to develop a ‘mini City’.
However, upon learning of the conflict, the investors and BITC sat the ensuing battles out. Kgosi
Mosadi Seboko said then that they do not accept being deprived of that significant asset of their forefathers. She stressed that the tribe was not against developments in the land nor any commercial activities or selling to the government, but such should be done through consultation. The Land Board would however not retreat and went to court contending that, by virtue of the Tribal Land Act of 1970 and the Tribal Territories Act of 1933, all rights and title to land in tribal areas, including the Farm, vests in the Malete Land Board.
The Malete Land Board accordingly sought a court order cancelling the Deed of Transfer in favour of the Gamalete Development Trust in respect of Forest Hill. The war for the prime land had begun. In their counterapplication, the tribe opposed the Land Board’s application on the basis that the two Acts pertaining to tribal land, if properly interpreted, cannot be construed to divest ownership over Forest Hill Farm, which the tribe bought and owned, and which does not fall within the definition of tribal territory in the Acts. If the court finds that the farm is vested in the Land Board, the tribe argues that the legislative scheme violates their rights to property and freedom from discrimination as protected in sections 8 and 15 of the Constitution, respectively. In effect it would mean that land that has been purchased by the tribe is taken from them and given to a statutory body, without any compensation, and the statutory body may then use it to benefit other citizens or external investors, contrary to section 8 of the Constitution. Such an interpretation would further mean that the legislative scheme 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, in contravention of section 15 of the Constitution.
The tribe was represented by Motlhala Ketshabile & Company, Botlhole Law Group, Rantao Attorneys, Adv Geoff Budlender SC and Adv Mitchell de Beer supported by the Southern Africa Litigation Centre. Nigel Redman represented the government.
A panel of three judges, Justice Michael Mothobi, Justice Chris Gabanagae and Justice Gabriel Komboni, presided over the matter and ruled in favour of the tribe. Kgosi Mosadi Seboko and her people were elated with the ruling. She said it was only right that they get their land back and said she would go back to speak to her morafe about the case.