Tribe must gain full value from Balete Farm
Vincent Seretse | Monday November 1, 2021 06:00
I was never in doubt that the farm rightfully belonged to the tribe under the title of freehold. When you own land and it is freehold, it simply means no one else has any interest whatsoever in the land. The ownership is unlimited (in perpetuity) and that so long as he obeys the laws, the owner may do as he or she chooses with the land and upon death, it will go to heirs.
The significant point of holding land under freehold is also the understanding that your own “above rights as well as beneath rights” or minerals there under (unless specifically excluded by the law). The Balete therefore do not only own the surface rights of the farm but “air rights” and rights beneath the surface except for minerals.
The central issue here is that the government wants to dispossess the Balete of their farm. I want to make it clear from the onset that the government is empowered by constitution to deprive the owner of the land his rights of ownership, for public good. Section 8 of the constitution of Botswana stipulates that the state is empowered to acquire private land compulsorily for public benefit upon prompt payment in full of just compensation. An expropriation and compensation process/or framework is outlined in the Acquisition of Property Act – (Chapter 32:10).
The question to ask is what is public benefit? The simple answer is that it is a benefit that is shared by all citizens e.g. a public road, or school. In the end the land compulsorily taken cannot be for the benefit of an individual.
The second question to be addressed and understood is what is just compensation. The constitution is clear that the government must pay “just compensation” to the owner of the property being compulsory purchased/taken. From the information I have come across, there is nowhere indicative that the government has initiated to take Bamalete Freehold farm through the acquisition of Property Act, in consonance with provisions of the constitution. I have earlier defined what interest freehold confers on the owner.
For purposes of this article “just compensation” is defined as full equivalent money for the value of the property taken. For clarity, the full equivalent in money has been defined as the price of a willing buyer and a willing seller.
All these attributes are nowhere to be found in the issue of the Balete Farm. For one, the land, title, ownership remains with morafe wa Balete. For land held under freehold title there is no other way to acquire than to follow prescriptive statutes of the land.
An analysis of compulsory acquisition of property by state involves an examination of two sub-questions:
• What is property and in what circumstances can a person’s property be taken by government action? • When the property taken is by government is a physical thing such as Balete Farm, it is simple and easy to appreciate such as land taken for a highway or public school. There is no question that the property is taken. However, if the property taken is a legal right rather than the physical thing the, issue can be more complex. The problem arises because the legal concept of property assumes the existence of a bundle of rights that maybe exercised by the owner to use, enjoy, control and dispose of the thing called property. For example, the legal concept of property includes rights.
The location of the Balete Farm makes it very prime and very valuable. It is currently zoned as a farm, but there has been a prevalence of rezoning of land around the farm for commercial use. This situation makes the farm land more valuable as its now offers a wide varied of opportunities. It capable of more than one use. So if the government was to compulsorily acquire the same, it would have to contend with what in planning language we term “highest and best use”. This means, for government to acquire the Bamalete Farm, they would pay a market price beyond that of agricultural land.
If it is the intention of government to take the Balete Farm, only to convert it to tribal use, it would be a travesty of justice, to knowingly devalue such prime property.
If I was to advise government, I would encourage the tribe to create a township and develop the land to its fullest potential either as a partner with the tribe or to encourage the Botswana Investment and Trade Centre to work hand in hand with the trust to find partners to develop the land.
This is what should obtain, in my view and I don’t see the appeal being successful.
Dedicated to my friend – Matshidiso Fologang – who fought for the land, to remain mo morafeng. May His Soul Rest in Peace.
*Seretse has served in government as Minister of Investment, Trade and Industry as well Minister of Infrastructure and Housing Development