Bamalete case: "A classic matter in African land dispossession"
Innocent Selatlhwa | Monday January 23, 2023 12:10
After winning before a full bench of the High Court in 2021, the Bamalete’s victory was short-lived as government appealed the matter. The matter will now be heard to by the CoA this Tuesday. The bench consisting of Judge President of the CoA, Tebogo Tau, Chief Justice Terrence Rannowane, Justices Mercy Garekwe, Isaac Lesetedi and Lakhvinder Singh Walia unanimously agreed to postpone the matter in October 2022 after Bamalete Land Board’s failure to follow the set CoA rules when it filed the appeal. The matter will finally be heard and Bamalete are expected to come in large numbers for the hearing.
SALC has thus issued a statement expressing displeasure at the turn out of events. “This case demonstrates how colonial legacies of land dispossession have persisted in Africa. Similar to colonial powers, post-colonial States continue to use various schemes, including legislation, to take away land from Africans,” says Brigadier Siachitema, Consultant Lawyer, Socio-Economic Rights Cluster lead from SALC. “This case is even worse because Forest Hill is privately registered property. The only reason the Ba-Gamalete have been denied the security of tenure and the protection other freehold owners enjoy in Botswana is that they are a tribe which shows clear discrimination in how land is managed,” he added. In the High Court, the Land Board contended that the Tribal Land Act of 1970 and the Tribal Territories Act of 1933 vested all rights and titles to land in tribal areas in Land Boards. The Act was amended in 1973 to include the Farm owned by the Tribe. The Malete Land Board accordingly sought a court order cancelling the Deed of Transfer in favour of the Gamalete Development Trust in respect of Forest Hill. In the High Court, the tribe opposed the Land Board’s application because the law on tribal land, if correctly interpreted, cannot be construed to remove their ownership of Forest Hill Farm.
The Tribe bought and owned the farm, which does not fall within the definition of tribal territory in the Acts. If the tribe’s farm vested in the Land Board, it would mean that the land the tribe had purchased with its resources could be taken from them and be given to a statutory body without compensation. Such an interpretation would mean that the legislative scheme treats the civil rights of tribes and their members less favourably than the treatment of non-tribal citizens, on the sole ground of their membership of a tribe. Motlhala Ketshabile & Company, Rantao Attorneys, Adv Geoff Budlender SC and Adv Mitchell de Beer represent the tribe, with support from SALC.