Bamalete’s long wait
Sharon Mathala | Monday October 17, 2022 06:00
The bench consisting of Judge President of the CoA, Tebogo Tau, Chief Justice Terrence Rannowane, Justices Mercy Gaorekwe, Isaac Lesetedi and Lakhvinder Singh Walia unanimously agreed that the appeal could not go on despite the Land Board’s desperate attempt to convince the judges for a condonation. This appeal concerns the ownership of the remaining extent of the Farm Forest Hill 9-K0. Looking back, in 1925, the Bamalete tribe purchased the farmland at the heart of the matter using its own funds to address a shortage of land for grazing purposes.
The farm was transferred to Chief Seboko Mokgosi for and on behalf of the tribe. Now the Land Board wants the tribe and Kgosi Mosadi Seboko to hand over the title deed of the farm land to government. The Land Board is largely basing its appeal on the 2011 CoA judgement in the Quarries Botswana case. According to the Land Board, their interpretation of the 2011 full bench panel was that the land did not belong to the tribe. “After analysing the arguments, the court concluded that at the time of the events giving rise to the litigation, the property vested not in the tribe through its chief, but vested in Land Board,” they argued.
The Land Board further argues that the Quarries Botswana matter determined not only the question of ownership of the property but also the constitutionality of the statutory termination of the freehold title. “It is submitted that the court a quo in this matter erred in not finding that the question of ownership and constitutionality of Section 7 of the TTA in relation to Section 8 of the Constitution had already been determined against the tribe by a competent court (being the court of Appeal). This should have constituted an insurmountable hurdle to the tribe’s counter application,” the Land Board further pointed out.
The Land Board further states that the High Court erred in revisiting the arguments which had been raised in the Quarries matter. For their part, the Attorney General (AG) stressed that the High Court decision granting ownership of the land to the tribe was a misinterpretation on the part of the lower court. “The court below therefore, exceeded its jurisdiction when it questioned, differed from and declared that the Court of Appeal’s findings of the law that the land in question vested, not in the Kgosi, not in the Development Trust and not in the tribe but in the Land Board. Having been decided by the CoA in 2011, that question was not open for re-consideration and decision by the court below some 10 years later,” the AG argued in their head of arguments. For their part, the tribe tells the court that the Land Board understanding of the Quarries ruling was ‘factually and illegally incorrect.’ “We reiterate that the constitutionality of the legislative scheme was not challenged in the Quarries Botswana matter. Therefore any remarks made by Howie JA as to the scheme’s constitutional validity were obiter. The court a quo was right to find that it was not bound by those remarks, as only the ratio of decision – the rationale or basis of deciding – is binding in terms of the doctorine of precedent,” reads their responding paper.
The tribe further states that the they raised new legal issues, which were not raised or addressed at all in Quarries Botswana and which the court a quo was entitled to consider. “The court as a result was constitutionally entitled to depart from the Quarries Botswana judgement. At the heart of the Board’s case is the assumption that the legislative scheme precludes a tribe from owning land in freehold separately from the relevant Land Board,” the tribe added.
The tribe’s other argument is that while it is clear that individual members of a tribe may not hold land in a tribal area in their personal or private capacity, the Board’s assumption is not correct, as the scheme does not either explicitly or implicitly preclude a tribe from holding land in a tribal area in freehold land. “The Tribe submits that since 1925 it has always held the farm in freehold title. The Board’s interpretation of the legislative scheme should not be preferred as it would lead to the inequitable results that the tribe was deprived of the Farm for which it paid with its own funds without compensation and in a discriminatory manner.”
The tribe also pointed out that if that result had been intended by Parliament, it would have been made explicit in the legislative scheme. “The 1973 amendment to the Tribal Territories Act should not be interpreted as having the effect of interfering with and extinguishing the tribe’s existing rights in the Farm. Until the Quarries Botswana judgement was handed down in 2011, the State agreed with the tribe’s interpretation of the legislative scheme,” the tribe continued.
Arguments in the case will continue in November as the parties apply for condonation before the main case could resume in the January session.