Enduring family feud over borehole ends
High Court Judge Tshegofatso Mogomotsi has ended a long-running legal feud between three siblings and their paternal uncle over an inherited borehole situated at Mookametsana, Shakwe in the Central District.
Mogomotsi recently ruled in favour of siblings Moagi, Selebogo and Kemmonye Mokgweetsi against their paternal uncle, Kamogelo Rantaung, pronouncing that they were the legitimate heirs and owners of the borehole in question.
The matter dates back to 2014, when the Mokgweetsi siblings approached Serowe Customary Court claiming the disputed borehole and removal of Rantaung’s names from the Certificate of Customary Land Grant in which he appeared as the owner.
According to court papers, the borehole in question belonged to the siblings’ late great grandfather whose brother was Kamogelo Rantaung’s great grandfather.
While the lower courts had ruled in their favour, the trio escalated the matter to the High Court to seek a reversal of the Customary Court of Appeal, which had granted the borehole to Rantaung.
In her judgement upholding the appeal, Judge Mogomotsi also took a swipe at the Customary Court of Appeal for the manner in which it reached its finding.
She said the manner in which the Customary Court of Appeal reached its decision was not only absurd and palpable indirection, but also a classic case of above and injudicious exercise of discretionary powers with resultant miscarriage of justice. She stated that the decision was arrived at in a manner that defied logic. The judge said the lower court made its decision with averting its mind to the three key issues like whether there was any procedural irregularities; evidential deficiencies or any flaws or misdirections of fact or law.
“In expressing its disappointment regarding the appellants’ decision to litigate, the Customary Court of Appeal lost sight of the fact that nothing at law precluded the appellants from approaching the courts and enforce their right,” said Mogomotsi said.
She added the Customary Court of Appeal castigated and found fault with the appellants’ decision to litigate, adding that its observations were not only an expression of its opinion but were irrelevant extraneous considerations which diverted its attention from the real issues.
The judge also stated that Rantaung was not a beneficiary of the borehole as there was no evidence suggesting that his great grandfather was in a joint ownership with the Mokweetsi siblings’ great grandfather.
“No evidence was ever led to show that, at the time of his death, Mabina (siblings’ great grandfather) had donated the borehole to Rantaung or bequeathed it to him, disinheriting his own surviving children,” she said in her ruling. In response to the issue of compensation that Rantaung was seeking for the developments he made at the borehole, the Court said this was a risk he consciously and voluntarily took without any encouragement nor promise of ownership nor compensation at a future date by the rightful heirs.
The court said the exclusive use of his resources, time and money to develop the borehole was consistent with his well-devised scheme to disinherit the siblings and retain sole ownership of the borehole.