The genesis of Balete farm case
Innocent Selatlhwa | Monday October 17, 2022 06:00
The Malete Land Board wants the Court of Appeal to reverse a judgment that saw Kgosi Mosadi Seboko and the Ga-Malete Development Trust declared the rightful title deed holders for Kgale Farms.
Since 2003, the government and the tribe have been engaged in protracted negotiations regarding the government's intention to acquire Forest Hill. It was clear that there would be no end in sight and if there was any end, it would likely to be a tragic one for the tribe with their land being taken for free. Despite their recent success at the High Court in 2021, Bamalete could still lose their land depending on how the five men bench led by Chief Justice Terrence Rannowane rule on the matter.
According to Mmegi archives, the government indicated that it needed 1,000 hectares of the farm, which had been included within the Gaborone Development Plan 1997-2021. To this end, the government was under immense pressure to address a backlog of land requests on a waiting list of up to 84,000 people (as of 2009). Much of the pressure came from wealthy businessmen who are also alleged to have forced the government to take the matter to court. On the other hand, more than 500 applicants were reportedly turned away annually whenever the Malete Land Board allocated residential plots because the plots were never enough. But no one was leaning on the government to rescue the situation. Faced with lack of land and the government's interest in their freehold land, the Ga-Malete Development Trust was conceived and formed in 2003 to protect and develop all of the tribe's freehold possessions, including Forest Hill 9-KO, otherwise known as Kgale Farms, after it became evident that the government wanted to grab the land.
This set in motion talks between the government and the tribe. The first round of negotiations was conducted at the Department of Lands on November 3, 2003. Thereafter, countless kgotla meetings and closed-door ones were held to address the same issue. Balete have been suspicious that the government wants to grab the land from them or buy it for a song. Balete said then that they long saw this coming, judging by how former Minister of Lands and Housing, Jacob Nkate, once threatened that nothing stopped the government from employing its compulsory acquisition powers because Balete "have an emotional attachment to their land". This sent a wave of panic within the tribe.
However, after subsequent meetings between the government and the Ga-Malete Development Trust, fears that their land could be grabbed were allayed. "We wish to record that the government position is not to compulsorily acquire the farm land. The government, of course, has compulsory acquisition powers usually used as a last resort," wrote Ngaka Monageng, a director in the Ministry of Lands and Housing then. It would seem that the government may have been negotiating with the tribe in bad faith. For instance, whereas the government was able to purchase land from the Catholic Church adjacent to that of Balete at market related prices, it once offered to pay Balete much less for the same dimensions of land being 1,000 hectares. The government wanted to pay Balete P5 million. In a letter dated February 27, 2004 addressed to the Ga-Malete Development Trust, Monageng wrote: "The whole farm will be incorporated and developed as part of Gaborone City and the Balete and government would enter into a joint venture."
Monageng further wrote: "Upon Cabinet approval, we can put together a team that is knowledgeable in this area to define contract terms such that we can appreciate the depth and breadth of the venture. "With the arrival of the new minister, Nonofo Molefhi in 2009, things took a new twist. Nothing was being said about purchasing of the land nor about the joint venture proposed by Monageng. After five years of negotiations, the government now turned around and said the freehold land is actually "tribal land", saying the land ceased to be freehold in 1972. But Molefhi still had to familiarise himself with the inner workings of his ministry created by his predecessors, Jacob Nkate and Ramadeluka Seretse, in relation to the negotiations between the government and the tribe over this affair.
Meanwhile, Kgosi Seboko and her subjects were growing increasingly perturbed and took issue with that. She wrote a letter to Molefhi telling him that the tribe does not agree to the offer and she is still awaiting a response. She further called a kgotla meeting to brief her subjects on the state of the negotiations. Accusing fingers were pointed at the then legislator for South East South, Minister Lesego Motsumi, for her reportedly general lack of interest in the matter. Some Balete said Motsumi had failed to use her Cabinet position to leverage things in the same way that other ministers have ensured that their people come first.
Kgosi Mosadi would not easily engage the media stating she was still engaging the government. "I do not want to be seen to be talking to the government through the media," she told Mmegi then that billionaires want the land. In December 2017, Balete ramped up fundraising towards the legal costs of defending their rights to the land. It had emerged that the Malete Land Board was seeking to seize and parcel to investors wielding US$700 million (about P7 billion). The tribe’s lawyer, Thebe Ramokhua told journalists gathered at Bamalete Kgotla that Balete had resolved to defend the suit filed by the Malete Land Board and go as far as the International Court of Justice if they lost in local courts. Deputy Kgosi, Tsimane Mokgosi said the Land Board had informed the tribal leaders that a deal had been reached in 2014 with Alebeng Investments in which the company would pump P7 billion into a “seven star hotel, state-of-the-art golf course,” and other developments on a portion of Kgale Farms. Alebeng reportedly intends to use between 25% and 50% of Kgale Farms for their developments.
However, Kgosi Mosadi and the Trust refused to hand over the title deeds, citing their historical ownership of the Farms, Balete’s existing land shortages and the lack of compensation reportedly desired by the Land Board. The Land Board is reportedly emboldened by a 2011 Court of Appeal (CoA) judgement in a dispute between the Trust and Quarries Botswana, which wanted to build a road through the land to the quarries. The Trust, which had sealed the road off, lost at the Court of Appeal in a judgement, which threw ownership of Kgale Farms into a grey legal area.
The decision apparently encouraged the Land Board to not only sign a deal with Alebeng but also push for a land grab without compensation. Addressing the media, Kgosi Mosadi pleaded with Batswana, companies and the international community to assist in all ways possible, especially funding and advocacy, in the fight to hold onto the title deeds. “It is surprising that in the past we had talks with various ministers responsible for land with a view to having Balete compensated so that government could expand Gaborone,” she said. “But now the Land Board, who were with us during the 2011 court case, now wants to take the land for free. We had expected that the government would engage us and not just take the land despite the CoA judgement whose intention wasn’t to take away the land from us.”
Kgosi Mosadi said the land in question was used mostly for subsistence agriculture, with villagers gradually commercialising their farming activities over the years. “We would have considered partnering with the said investors instead of being pushed out when they came. It is surprising that in the past the government did not refer to the CoA judgement and offered compensation. “All of a sudden things have changed and the President does not even want to give us an ear over the matter,” she said. According to available documents, Kgale Farms dates back to 1925 when Balete bought a farm known as Forest Hill 9KO farm for investment purposes.
The tribe contributed to raising the 3,000 Sterling Pounds required to purchase the land from Aaron Siew. In the same year, a title deed was issued by the Deeds Registry in the names of Kgosi on behalf of the tribe. To this day, the title deed is in the name of Kgosikgolo for and on behalf of the tribe.