CLB appeals Pandamatenga land ruling
Project was funded by ADB close to P447 million
FRANCISTOWN: The Chobe Land Board (CLB) is appealing the decision of the Francistown Land Tribunal to allocate farms to 266 households in Pandamatenga.
The decision was delivered by the president of the Francistown Land Tribunal, Bannister Mokakangwe, last year on October 30. The appeal was disclosed at the CLB press conference last week in Francistown.
When asked about the status of the case, a CLB official said he was constrained to comment on the issue because “it was currently before the courts.”
In its notice and grounds of appeal, the CLB say “the learned judge president erred in fact and law in one or more of the following respects (3.1) the Land Tribunal erred in fact and law in holding that the 266 households had a legitimate expectation that the loan agreement entered between the African Development Bank (ADB) and the Ministry of Agriculture (MoA) on the Pandamatenga Agricultural Development Project (PADP), had cited them as direct beneficiaries of the 2, 500 hectares of farm land after the completion of the water slippage draining system training attended by the farmers in the area. The Respondent (Kgosi Rebecca Banika) held a misinformed position with respect to the said 2, 500ha as they failed to prove a prima facie case that there was such an undertaking made to the effect that an allocation would ensue.”
The CLB on (3.1.1) says the said error by the Land Tribunal indicates that the tribunal misguided itself in making a determination on the Respondent’s case.
“The Land Tribunal asked, determined and answered questions, which never had a clear answer as there was no documentation that set out to state that the 2, 500ha in Mahabapi would be reserved and allocated to the 266 households and in what manner the Land Board would be allocating it in, hence the question of legitimate expectation not having been clearly answered.”
The CLB also contends in (3.2) that “the tribunal erred in fact and law in holding that the Respondent was representing the 266 Pandamatenga households as there was no signed resolution that purported that Kgosi Banika was standing on behalf of the 266 households whose names would also be clearly known by the MoA as a party to the said project. The Land Tribunal merely proceeded to accept evidence led by Kgosi Banika without such an undertaking having been presented before it. The fact that the Respondent stated that she is one of the beneficiaries, had two witnesses testify and she is incumbent chief of Pandamatenga, does not mean that she necessarily represented the households, but that on the issues of allocation of land in the said farms, the Land Board is the responsible authority, hence the floating of tender CLB/04 of 2017-2018 that was later interdicted by the respondent.
Lastly, the CLB on (3.4) says that “the Land Tribunal erred in law in that it failed to find in favour of the Appellant (then Respondent in the main tribunal appeal) when it was clear that the Land Board did not take into account the fact that there was no clear mandate instructing them to allocate the 2, 500ha and further that its policy mandate as enshrined in the Botswana Land Policy of 2019, Tribal Land Act Cap 32:02 and the CLB policy, did not provide for the manner of allocation that was sought after.”
The CLB relief sought from the High Court is an order in the following terms: (a) the appeal to be upheld with costs; (b) the decision of the land tribunal dated October 30, 2023, which upheld the Respondent’s appeal and confirmed an undertaking to allocate the 2, 500ha of land to 266 households existing in Pandamatenga be set aside and be replaced with the following order (The appellant be and is hereby directed to proceed with the finalisation of tender CLB/04 of 2017-2018 to allocate the farm land in Mahabapi within the confines of the powers vested in it under the Tribal Land Act policy from the date of this order).” The decision of the CLB will surely not go down well with Kgosi Banika and Chobe
Member of Parliament, Machana Shamukuni. Following the ruling of the Francistown Land Tribunal, the duo expressed joy that the matter was finalised and will benefit its intended beneficiaries. They also prayed that the CLB will not appeal the Land Tribunal’s decision.
According to court documents, Kgosi Banika took the court route after the CLB’s board resolved to reject the claim for the 2, 500ha on the basis that there was no such undertaking in place but reserved four farms for the local community.
According to the case’s background, in or around 1984, the government of Botswana allocated an area of 25, 07ha to farmers in the Pandamatenga with an aim to boost cereal production.
The ruling further says that the extra 2, 500ha has become a deeply contested issue between the appellant and the CLB.
“The appellant asserts that the 2, 500ha was intended to benefit 266 households existing in Pandamatenga as at 2008 in the allocation of the farmland by the CLB. On the other hand, the CLB denies the existence of any such undertaking. An advertisement of small scale farms in Pandamatenga under tender CLB/04/04 of 2017 by the Respondent prompted the Appellant to successfully apply for an interdict against the allocation of the reserved land.
This interdict was granted pending a hearing before the CLB as the Appellant believed the land envisioned to be allocated included the 2, 500ha earmarked for Pandamatenga. During its board sitting on June 22 to July 2020, the CLB invited the Appellant for a hearing and after deliberations determined as follows: (a) It acknowledges the Appellant’ submissions that it wants to be allocated the whole 2, 500ha. However, it has resolved to reject the request of allocating 2,500ha as per the Tribal Land Act Cap 32:02 as read with the Botswana Land Policy which clearly stipulates the land allocation procedure…,” further the said ruling by president of the Land Tribunal, Mokakangwe. Aggrieved by the decision, Mokakangwe continued, the Appellant registered the current application.
According to the Appellant, it is clear from the actions and a number of documents that the government, in partnership with the CLB, reserved 2, 500ha for her community as a condition to obtain a loan and/or grant from the ADB.
Flowing from that, Mokakangwe said the Appellant then called a number of witnesses to motivate its case while the CLB having been ordered to file written submissions, at its own peril, failed and/or neglected to do so.
“The Respondent’s case can only be discerned from the pleadings on the court’s record…”
The coram concluded: “Consequently, we make the following determination: (a) This appeal succeeds (b) It is declared that the undertaking to allocate 2, 500ha of land to the 266 households existing in Pandamatenga was made as a condition to obtain the ADB loan is consistent with the Appellant’s claim (c) It was unlawful for the CLB to renege from the undertaking without due cause (d) The CLB is therefore ordered to allocate the reserved 2, 500ha of land as originally intended for the benefit of 266 households in Pandamatenga as at 2008 and (e) Each part shall bear its own costs.”
The matter was also discussed in Parliament following the tribunal’s ruling.
As per the ruling, during the first sitting of the 11th Session of Parliament, as contained in the Hansard No. 786 dated December 13, 2016, Shamukuni asked the Minister of Agricultural Development and Food Security to provide background information on the original objectives behind establishing the fields as per the ADB funded project.
Shamukuni also enquired as to who the intended beneficiaries were and how and when the fields will be allocated to the intended beneficiaries.
In response, to Shamukuni, the then Assistant Minister Agriculture, Kgotla Autlwetse, indicated that the original objectives for the establishment of the 2, 500ha fields was to increase crop production productivity, to mobilise the farming community and the intended beneficiaries were the “266 households as at the year 2008 and the CLB as the responsible authority was still working on the issue of allocation.”