Curtain closes on Bamalete land saga
Mompati Tlhankane | Monday March 6, 2023 12:42
The Court of Appeal (CoA) was supposed to deliver judgement on the case on February 17 but Registrar of CoA Nomsa Moatswi wrote a letter to Bamalete lawyers, Motlhala and Co to inform them about the court’s decision to postpone judgement to a later date yet to "be communicated to the parties". “The parties are advised that the judgement in the matter will no longer be delivered on February 17,” read the letter Moatswi authored. Last Thursday Registrar of CoA announced the new date for the judgement as March 7.
The case has been tainted by controversy since Kgosi Mosadi Seboko, the Kgosikgolo of Ba Ga-Malete, claimed that President Mokgweetsi Masisi interfered with the Judiciary and wants to play the hero in the matter. Kgosi Mosadi at the time last year set tongues wagging when she made known allegations before the media a few days before their first CoA appearance in the last session.
Kgosi Mosadi revealed then that Masisi had promised to give Bamalete their land back should they lose the case at the highest court in the land. She exposed Masisi’s meddling hand in matters of the land saying she will never keep quiet or be part of the ‘never mind’ ilk to save her skin. Last month the matter was finally heard and both lawyers delivered their arguments.
The State based its main argument on the decision of the CoA in the 2011 Quarries of Botswana case. 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 company sought an interdict to restrain Bamalete from preventing it from using the road. 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. Last month, the State argued that the constitutionality issue was decided in the Quarries of Botswana case. State lawyer, Advocate Sidney Pilane told the CoA bench that the decision of the appeals court 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 judgement.
Bamalete through their counsel, Geoff Budlender pointed out that the contention by the State that the CoA determined the constitutionality of the farm’s acquisition in the Quarries of Botswana and that the tribe is precluded from raising it, in this case, is incorrect. He said it was 'incorrect' as the breach of the tribe’s rights and consequentially the constitutionality of the legislative scheme was never challenged before or considered by the CoA. Budlender made submissions before the CoA to the effect that the case is for the generations and will affect Balete’s children and grandchildren for generations to come. “It is a case that constitutionality has to be decided not just for the present Kgosi and not just for the present residents of the farm, but for the generations to come,” Budlender highlighted. Budlender also emphasised that this is a fundamentally different case because it is about the constitutional liberty of a law that was passed by Parliament. “This is about the validity of rules which affect the lives of thousands of citizens in Botswana.
It is about the validity of a law which affects and will continue to affect people for the rest of their lives as a daily continuing operation. This is not a case which started and stopped, it continues every day, it is a life issue,” he said.
He pointed out that the tribe cannot be stopped from challenging the validity of a law which breaches one’s constitutional rights and takes away the land, which their predecessors bought. He further emphasised that it affects multitudes of people for generations to come.