Land Act interpretation remains a live issue – Kgosi Mosadi
● We reserve the right to challenge the new Act
The relentless fight by the Balete tribe not to lose their grazing land to the State has boiled down to the constitutional validity of the new Land Act.
The tribe, which has been embroiled in a legal battle with the government over the ownership of the remaining extent of the Farm Forest Hill 9-KO, says should the court determine that the Act has divested them the land then they will challenge its constitutional validity should there be a need.
Kgosi Mosadi Seboko on Wednesday said the State is contesting that the now re-repealed Act has divested them of the farm therefore the reason they would like to challenge if that need arise.
“This is because if the State is correct and the now repealed Act divested the tribe of its property, then the court is required to determine whether that was constitutional,” she said.
Kgosi Mosadi Seboko explained that if indeed the State was right in their interpretation then it remains a live issue whether the tribe lost ownership of the property and if so whether that was constitutional. She pointed out that the bringing into force of the new Act, the issue between the parties concerning the proper interpretation of the old Act and its constitutionality still required the court’s determination as per the State’s argument that the now repealed Act divested them the farm.
Kgosi Mosadi argued that for the fact that the government contends the constitutionality of the Farm’s acquisition was determined by another case in which the Quarries of Botswana company had a legal battle with the tribe also was not true.
“The State said the constitutionality of the acquisition was determined and we the tribe precluded from raising it in the current case. This contention is incorrect, as the breach of the tribe’s rights and consequentially the constitutionality of the legislative scheme were never challenged before or considered by the court,” she noted.
She emphasised that for the government to argue that the tribe consented to the Farm being transferred to the Board was both factually and legally incorrect.
Kgosi Mosadi said the truth was that the tribe never consented to the acquisition of the Farm by the Board as illustrated by the fact that the tribe continued to exercise control over the Farm for more than 35 years after the legislative scheme was enacted.
She said they have already cross appealed against the High Court’s order in so far as it failed to address the second leg of the constitutional challenge, which the violation of equality rights by the legislative scheme as they had raised in the papers and the court ought to have been considered by the court.
“The tribe asks that the appeal of the Board be dismissed and that its cross appeal be upheld should the court disagree with the tribe’s interpretation of the law,” she pointed out.
Balete tribe has been reportedly the custodians of the Farm after purchasing it with their own funds, to address shortage of land for grazing purposes.
According to their court papers, the Deed of Transfer records that the Farm was transferred to Kgosi Seboko Mokgosi on behalf of the tribe. Since its acquisition, the tribe and its members have exercised control over the Farm and allocated and used the land in accordance with the custom.
The Malete Land Board on the other hand has been fighting to take control of the Farm.
The Board wants the Deed of Transfer in their favour contending that various provisions of the Tribal Land Act and the Tribal Territories Act vested it with ownership of the Farm.
The case is before the Court of Appeal on Tuesday, October 11.