CoA grants Balete, Malete Land Board indulgence, mercy

The Balete led by Kgosi Mosadi Seboko and the Malete Land Board were granted the Court of Appeal’s (CoA) indulgence and mercy to put their houses in order following their pleas after non-compliance with court rules.

Both parties were on Friday before a full bench of Judge President Tebogo Tau, justices Isaac Lesetedi, Singh Walia, Leatile Dambe, and Mercy Garekwe, seeking the court’s indulgence to rectify the mistakes they made while filing their papers for the main appeal pending before court.

The pending appeal has been filed by the Attorney General (AG) against Kgosi Seboko and Gamalete Development Trust after losing a case in which they wanted to cease the tribe’s ownership of Balete Farm known as Hill Forest K-90. Now both the tribe and Land Board appeared before court seeking condonation because on October 11 by consent the bench struck out Land Board’s papers and the tribe’s cross-appeal for non-compliance with the CoA rules. The tribe’s application points out that it was a genuine oversight on their part to have not filed their papers as per court rules. Kgosi Seboko who deposed the affidavit explained that the notice of opposition to and their cross-appeal to AG’s appeal did not comply with court rules because it was not served on the Registrar of the High Court which was a genuine mistake on their part.

“Due to genuine oversight on our part, our attorneys filed the documents directly to CoA and we became aware of the error when it was brought to our attention by the court. Our attorneys were labouring under the mistaken belief that papers had been properly filed and served,” she said. Kgosi Seboko requested the bench’s indulgence to rectify the oversight by granting leave to file such notices.

Malete Land Board, which is also cited as the third applicant in the pending appeal by AG by virtue of being the custodians of land in the country, also requested that they be given a chance to correct the mistake with their filing. The Land Board pleaded for the court’s mercy to be granted leave to file its papers again as per the court rules they flouted.

Meanwhile, the AG also representing the Registrar of Deeds of Botswana did not oppose the tribe’s application on condition that they would leave everything to the court.

According to the Chief State Counsel, Otlaadisa Kwape’s answering affidavit, they were not opposed to the relief sought if the court was satisfied that a case for such has been made. “We are not opposed to the granting of the relief in the event that the court is satisfied that a case for such relief has been made out, that being a question for the courts and not us,” he said. However, Kwape pointed out that he noticed that the tribe did not tender the costs of their application to them despite undoubtfully being clear that they would incur costs as a consequence of the application.

He requested that the court rules in their favour for costs as the AG and Registrar of Deeds were innocent in the matter.

“I need not mention that no basis exists upon which failures of the applicants should result in us, being entirely innocent parties incurring costs so unnecessarily without compensation,” Kwape pleaded.

Judgment will be delivered on December 2, while the main appeal filed by AG against Kgosi Seboko and her tribe will be heard during the January 2023 session.