CoA judgment most disappointing - UB scholar
CoA eschewed clarification of the law on other important issues
Former University of Botswana scholar Professor Clement Ng’ong’ola has heavily criticised both the high court and Court of Appeal ( CoA) judgements of the Balete land case passed a decade ago.
The judgements form part of the arguments presented before a panel of three high court judges in a case in which Malete Land Board has taken Kgosi Mosadi Seboko and Gamalete Development Trust to court wanting them to hand over the title deed for a part of their remaining farm.
Botswana Guardian is in possession of a document dubbed - UNIVERSITY OF BOTSWANA LAW JOURNAL VOLUME 14 JUNE 2012 in which Ng’ong’ola - an expert in land law - together with Refiloe Segokgo, published an article titled ‘ Expropriation of freehold land by sleight of legislative hand: Review of Quarries of Botswana ( Pty) Ltd v Gamalete Development Trust and Others, Court of Appeal, Civil Appeal No. CACLB - 036- 10’.
The scholars argued that the outcomes were far reaching and likely to end at the CoA - the very place which has triggered the arguments currently before court. The Land Board argues that the CoA has long ruled that the land belongs to them and the court cannot decide what has already been decided. On the contrary the tribe says the CoA did not decide on the constitutionality of the matter but instead they made the comments in passing.
Research
In the journal, Ng’ong’ola states that on 29 July 2011 a full complement of five Justices of Appeal unanimously allowed an appeal by Quarries of Botswana ( Pty) Ltd for a final order interdicting and restraining the first respondent, the tribe and Land Board from impeding its use of a road which traverses the remainder of the farm Forest Hill No 9- KO, from a quarry operated by the appellant and adjoining the A1 highway between Gaborone and Lobatse.
The application had been dismissed by Justice Oagile Dingake in the high court primarily on the ground that the applicant had not demonstrated a clear right in law to be served by the interdict, one of the essential requirements in law for the grant of a final interdict.
The CoA agreed with the high court that ownership of the remainder of the farm was the dispositive issue in the matter. If it was vested in the Tribe, then the appellant would have no clear right on which to anchor the grant of a final interdict, but if, as alleged, the farm was tribal land vested in the Land board, the tribe would have no right in law to restrain or obstruct the appellant from using the road, and the interdict may be granted without assessing other claims and arguments raised by the appellant as bases for its right to a final interdict.
After so distilling the issue to be decided upon, the CoA held that ownership of the remainder of the farm was vested in the Land board when an amendment to the Tribal Territories Act ( TTA) in 1973 re- defined the Bamalete Tribal Territory ( BTT) to include the farm. The appellant was thus entitled to the final interdict sought, regardless of what the High Court said and thought about the soundness in law of some of the appellant’s claims.
This, it is contended, is an intriguing and academically disappointing resolution of the dispute. First, by focusing mainly on what was considered as the dispositive issue, the CoA eschewed clarification of the law on other important issues canvassed by the litigants, such as the claims relating to acquisition of servitude rights. Second, on the dispositive issue, it will be contended, with all due respect, that the Court of Appeal was somewhat casual and slipshod in its treatment of the constitutional implications of the “transfer” or “taking over” by the Malete Land Board of freehold land belonging to the Bamalete Tribe.
The Court also skimmed over the issue whether the legislature at the material time truly intended to place under the jurisdiction or control of Land Boards all or any private or freehold land that may have been located within a designated tribal area. This is a much vexed issue, which the CoA has skimmed over and failed to clarify on at least two previous occasions.
Decision
The principal protagonists in this case were Quarries of Botswana and the Trust, formed and empowered to administer and manage land assets of the tribe, including the remainder of the farm Forest Hill No 9 – KO.
In February 2008, with the assistance of the second and the third respondent, the applicant’s transporters and customers using heavy lorries and haulage trucks were barred from using the road to traverse the farm.
The applicant obtained an interim order restraining the respondents from so doing. On the return day Dingake listed the following as the requirements for a final interdict, to be established by the applicant on balance of probabilities: “( a) A clear right; ( b) An injury actually committed or reasonably apprehended; and ( c) The absence of similar protection by any other remedy ...” It is in respect of the first requirement that the Court identified legal ownership of the remainder of the farm as the dispositive issue in the matter. If the farm belonged to the tribe, the high court suggested, the applicant would not have a clear right to a final interdict.
The applicant’s contention was that the farm ceased to be freehold property of the tribe when it was incorporated within the description of the Bamalete Tribal Territory under the Tribal Territories Act as amended.
By virtue of that process, and by virtue of the vesting of all rights and title to land in a Tribal Area in the relevant land board, in terms of Section 10( 1) of the TLA, ownership of the farm was vested in the Land Board.
For and on behalf of the respondents, it was contended that this was an unacceptable argument, as it entailed that the State would have expropriated the farm without meeting the fundamental requirements of the Constitution.
It was contended that the TTA as amended, merely incorporated the farm into the BTA, without changing or transferring the ownership thereof. Dingake was more sympathetic to the contentions raised for and on behalf of the respondents.
He regarded the interpretation of “land” and “tribal area” in the TTA and the “TTA” as critical issues.
Conclusion
Ng’ong’ola stated that when the high court decision was delivered in 2010 it appeared to be a clear, lucid and authoritative restatement of the law on essential requirements for the grant of an interdict, on various ways of acquiring a servitude of right of way over freehold land, and on the meaning and interpretation of the term land in the TLA and the TTA using some of the canons of statutory interpretation and presumptions incorporated in the Interpretation Act.
After the conclusion of the appeal, it would be safe to regard the decision as authoritative only in respect of the enumeration of the three requirements, but not in respect of elaboration of elements of the requirements in the context of the case.
The CoA in effect held that the high court erred in finding that the applicant had no clear right, and in finding that no injury had been established which could not otherwise be remedied. The high court also probably erred, and severely limited the scope of the enquiry, in determining that the issue of ownership of the farm was dispositive of the matter. This pre- empted discussion of other pertinent issues, such as whether the applicant had acquired servitudal rights or whether the applicant could be prevented from using the road on other grounds. The high court also probably erred in identifying the meaning and interpretation of land as the critical issue in the determination of ownership of the farm. The CoA regarded the purport and meaning of Section 10 of the Tribal Land Act as a whole as the more important issue. It regarded the purport of the provision as plain, from the words employed, requiring no application of rules of statutory interpretation other than the literal rule. Section 10( 1) of the Tribal Land Act plainly suggested that title to the farm Forest Hill was transferred to the fifth respondent when the Bamalete Tribal Territory was redefined in 1973 to include the farm. He stated that although the CoA decision is sufficiently clear on the errors in the high court judgment, “it too can hardly be regarded as authoritative on most of the issues, except on the meaning of injury for purposes of interdict law, the second requirement for the grant of a final interdict”. The CoA judgment is most disappointing and its errors egregious on the constitutional implications of the transfer of ownership in the farm from the tribe to the Land Board.
The scholars submitted that the Court erred in finding constitutional justification for this type of expropriation in Section 8( 6) of the Constitution. The Court was also in error when it suggested that it was legally significant that no one objected to the expropriating measure when it was referred to the House of Chiefs for debate.
Constitutionality
It would appear that the CoA was anxious to avoid this constitutional debate. Ever since the TTA was passed in 1968, or brought into effect in 1970, the question has never been asked in the courts whether what Section 10( 1) achieved amounted to compulsory acquisition or the taking of possession “of any interest in or right over property of any description” in terms of Section 8 of the Constitution.
Considering that over 40 years have passed from the inception of Land Boards, not many, apart from Chiefs and other tribal leaders, might be keen to interrogate this issue. It might be preferable “to let sleeping dogs lie.”
This is probably what the Court was signalling through its incautious observation that no one objected to the transfer of the farm from the Tribe to the Land Board when the TTA was tabled for consideration in the House of Chiefs. This might be prudent social and political expediency, but it is not acceptable constitutional jurisprudence, the scholars said.