Two In Tug-Of-War Over Plot 3832

GALE NGAKANE
Correspondent | Monday July 13, 2009 00:00

The plot, whose number is 3832, pits 70-year-old herdsman Kealoiwa Garebaitse, who is originally from Jamataka, just west of Franscistown, and a woamn consultant at the Botswana National Productivity Centre (BNPC) Keganneng Mikkie Matenge who has erected a P100,000 structure on the disputed piece of land.

Matenge says when she bought the plot, it had only a grass thatched dilapidated mud hut, while Garebaitse who was brought to the attention of Monitor by sympathisers, says there were two mud huts.

The Francistown City Council says the plot belongs to the white-haired Mosarwa arthritic man who presently lodges with relatives at neighbouring Block 4.

A man who could have shed light on the mystery, referred to by Garebaitse only as Lekoto, has since died.  Lekoto is alleged to have sold the plot to Matenge. Garebaitse told Monitor that he had no kinship with the man.

The council's spokesperson, Priscilla Gulubane told Monitor: 'As the council, we know about the issue. We know that the plot belongs to Garebaitse as it was not sold by him and he has papers to prove that the plot belongs to him.'

Asked about the property that is on the plot, Gulubane said further that as the council, they assume that the property belongs to Garebaitse.

A case concerning the plot instituted by Garebaitse has been before the courts as far back as 2004 when the Phase IV Customary Court president, Paul T Motshwane discovered there has been a gross negligence by the council and tried to apply Solomonic wisdom to reach a verdict.

In a June 20, 2004 letter he signed, addressed to the city clerk, Motshwane said: 'The verdict of the court has been that since there was gross negligence on the part of the council, it should look at ways and means of allocating the plaintiff (Garebaitse) a new plot. This was the only amicable solution we could arrive at.'

Apparently, Garebaitse was not satisfied with the verdict and sympathizers again guided him to an attorney at law, Phazha Kgalemang, who registered the case at the High Court.

This week, when approached about the case, Kgalemang confirmed having represented Garebaitse at the High Court and that he was not charging the client as he (Kgalemang) realised the state of poverty Garebaitse was in.

'There are times when I take up cases for free especially when it involves poor people,' he said.

At the High Court case held before Justice Thomas Masuku, the judge dismissed Garebaitse's application saying he had reached 'ineluctable conclusion' to do so.

However, Kgalemang immediately lodged an appeal on the ground that, among others, the judge 'erred in law and in fact in holding that there was a genuine dispute of fact on the papers when such genuine dispute of fact did not exist.

'It was erroneous and a misdirection of a grave nature for the learned Judge to fail to take cognizance of the fact that the Applicant's cause of action was premised on the Applicant's ownership of the plot in question, which the Respondent did not dispute that she was in possession.

'The learned Judge of the Court below failed to take cognizance of the fact that in a possessory claim, the Applicant is not required to proceed further than establishing the Respondent was in possession of his property, and that such possession was not through the authority of the owner, that is, the Applicant,' Kgalemang argued.

There were other grounds for the appeal, which, Monitor is in possession of and it bears the stamp of the High Court dated 27 May 2008.

Kgalemang has a strong conviction that the appeal would have prevailed, saying he did not believe there was a dispute that Garebaitse was the owner of the plot.

However, Kgalemang said he was taken aback when the old man came back some days later to say he was going straight to the council and hence ending any business with the law firm.

'I tried telling the old man that he was going to have a problem with the council, but he would not listen. He just said he was done with me. At the moment I do not think I would want to have anything to do with the case.

'Someone else can do it,' said Kgalemang.

Monitor could not find out what had happened to the appeal, whether it was cancelled and Justice Masuku's ruling upheld.

Sympathisers arrived at Mmegi/Monitor offices last Tuesday with old man Garebaitse and his equally elderly sister by the name of Leungo Same.

Garebaitse scratched his head when asked about specific dates, citing illiteracy, but he said he saw a man lying in a ditch and when he asked the man why he was not home, he said he had no home.

'I took him to my place and told him he can have a roof over his head. We had two huts on the plot,' said a widowed Garebaitse, who is also childless.

He said sometime later, he decided to go to North East where he had been offered a herdsboy job, but before he left, he asked a neighbour to look after the place for him. He also said he told the man he had retrieved from a culvert that he can continue staying on the plot.

'I was surprised one day when I visited the place to find  a brick house on my plot. I looked for the neighbour and asked him who had constructed the house on my plot. The neighbour said  he saw a woman demolishing my huts and when he came to ask what she was doing the woman said my neighbour must mind his business.

'The neighbour said he tried in vain several times to warn the woman that the plot had an owner and that he had been asked by the owner to look after it,' said Garebaitse.

Meanwhile, Monitor managed to trace Keganneng Mikkie Matenge, a consultant at the BNPC who said she was the bona fide owner of the plot and that she had secured a loan with which she erected property to the value of P100, 000.

She said she bought the plot from a man she found on the plot who said the plot was his but he was unable to pay service levy to the city council.

'The man was sick and said he needed the money for not only the service levy but also for medical expenses,' said an initially reluctant Matenge, who threaatened legal action if her name was tarnished.

'I was initially reluctant to buy the plot, but when I saw the sickly state the man was in, I felt for him and hence bought the plot,' she added.

Matenge said she has papers to prove it, but that the papers were signed by the brother's sisters after he died.

Matenge said when she thought everything was fine, one-day tenants at the plot told her that a man reeking of khadi (an opaque traditional brew) came harassing them saying he was the owner of the place and that they should pay the rent to him.

'We then started looking for him. We went as far as Mabesekwa. We literally searched every place for him, even enlisting the help of the local police, but we could not find him,' she said. Matenge said it was at the Customary Court that she met the man and the presiding officer asked the man why they would want to take over such an expensive property.

'It was resolved that the council should allocate the man a plot where I would build him a one-room house. I had no problem with that, but the man was adamant that he wants his plot and nothing else.

'I suspect there are people behind this who want my property for themselves. They are only using this old man,' said Matenge.