Quarries of Botswana major factor in Balete land saga
Mompati Tlhankane | Monday January 30, 2023 06:00
One of the main issues in the appeal is whether the Quarries of Botswana case determined the constitutionality of the Farm’s acquisition.
The Quarries of Botswana case primarily concerned a company operating a granite quarry and its use of heavy haulage trucks on a road, privately funded, which runs through Mokolodi village and the Farm.
The road was blocked by a number of people, including a representative of an environmental advisory group of the village and the head of a private security company.
Flyers handed out at the blockade stated that the Trust would not allow commercial haulage traffic to use the road to cross the Farm.
The company sought an interdict to restrain Bamalete from preventing it from using the road.
In the High Court, the matter came before Justice Key Dingake.
He held that the Farm was a freehold property of the tribe, and that accordingly the company had not established a right to use the road across the Farm. He therefore dismissed the interdict. The matter then went for appeal.
Judgment of the Court of Appeal
Justice Craig Howie commenced the judgment of the CoA by setting out the tribe’s acquisition of the farm and the relevant provisions of the legislative scheme. He referred to various arguments made by the tribe concerning the interpretation of the legislative scheme to the effect that the lawmaker would not have intended the prejudicial consequence that the tribe was divested of the farm (this included references to its rights in Section 8 of the Constitution). The Board in turn referred to section 8(6) of the Constitution.
Howie rejected the tribe’s argument. The judge held that the farm vested in the Board. As to the “constitutional point”, he suggested that section 8(6) of the Constitution applies to the farm. “The constitutionality of the Tribal Territories Act and the [Tribal Land] Act in the relevant respects has never been challenged,” Howie held.
Howie also held that, “the statutory termination of Bamalete freehold title in Forest Hill and vesting of the land in the fifth respondent was not unconstitutional.” The CoA upheld the appeal and substituted the High Court’s order with an order interdicting Gamalete Development Trust from impeding the company’s use of the road while it transverses the farm.
Now, the State argues that the constitutionality issue was decided in the Quarries of Botswana case. State lawyer, Advocate Sidney Pilane told the CoA bench on Tuesday that the decision of the CoA in the Quarries of Botswana binds everyone therefore the High Court had no power to interfere when it handed the land rights to Bamalete in last year’s judgment.
“A proper reading of the originating motion and originating affidavit make it plain that the application brought by the land board was not vindicatory in nature but an enforcement of the decision of this court delivered on July 2011 in Quarries of Botswana (Pty) Limited v Gamalete Development Trust and others,” Pilane told the court.
He further argued that it was wrong for the court below and the parties to deal with the matter as through it the land board sought to vindicate the land in controversy. “The question of the inescapable finding of the full bench of this court in the Quarries of Botswana case that the land in question vested in the land board and not in the tribe, the Kgosi and the Development Trust did not arise, was not available to the court below to re-open, and the court below could not, on any basis deal with that question without sitting on appeal in respect of a final decision made by this court,” he further said.
Pilane also emphasised that the High Court was bound to the CoA’s decision in the Quarries of Botswana case and therefore had no jurisdiction to interfere with that decision.
He said clearly lower courts are bound by the decisions of higher courts and whatever their view of the correctness or otherwise of the decision of the High Court. Pilane also pointed out that courts of final jurisdiction will not readily nor lightly depart from their own previous decisions, and will do so only where the previous decisions were “clearly wrong”.
He stated that the court below exceeded its jurisdiction when it questioned, differed from and declared the CoA’s finding of 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 in 2011, that question was not open for re-consideration and the decision by the court below some 10 years later. The CoA is the superior court in Botswana and its function is to consider and determine appeals from, amongst others, the High Court. It is the final court of appeal in Botswana and its decisions are binding upon all other courts in the country,” he highlighted.
Now Bamalete feel that the contention by the State that the constitutionality of the Farm’s acquisition was determined by the Court of Appeal (CoA) in the Quarries of Botswana and that the tribe is precluded from raising it in this case is incorrect.
“It is incorrect as the breach of the Tribe’s rights and consequentially the constitutionality of the legislative scheme were never challenged before or considered by this court. The State parties contend that the issues raised in the Tribe’s opposition to the Board’s application, and in the counter-application, are res judicata, and that the Tribe is precluded from raising the issues by an issue estoppel. This is incorrect,” Bamalete counsel, Geoff Budlender submitted on Tuesday.
Res judicata is the principle that a cause of action may not be relitigated once it has been judged on the merits and that is what the State feels should have applied. On the other hand, estoppel refers to a legal principle that prevents someone from arguing something or asserting a right that contradicts what they previously said or agreed to by law.
Budlender argued that as the court below held, the requirements that a party must satisfy to invoke the doctrine of res judicata are well-established.
He said there must be a judgment given by a competent court between the same parties based on the same cause of action and which is in respect of the same subject matter or thing. He added any reliance on the doctrine of issue estoppel by the State parties is thus necessarily circumscribed.
“In our submission, the Court a quo correctly found that neither doctrine is applicable in the present case. First, in respect of the Board’s application, the cause of action is different from that in the Quarries of Botswana matter.
There, the company sought to interdict certain parties from blocking a road. It was in that context that the ownership of the Farm was determined. In the Board’s application before the Court a quo, by contrast, it sought an order cancelling the Deed of Transfer reflecting the Tribe’s ownership of the Farm. Different relief was thus sought,” Budlender explained.
He said it is clear from the judgment of the CoA that the tribe did not raise its rights to be protected from discrimination, and did not challenge the constitutionality of the legislative scheme. He said as the High Court found, correctly with respect, the requirements of res judicata cannot be satisfied.