Balete Farm Forest's legal and constitutional interpretation
Mpho Mokwape | Friday May 28, 2021 19:51
Last week Balete breathed a sigh of relief following the confirmed ownership of a portion of Farm Forest land, known as Hill 9-KO by the High Court bench of Justices Michael Mothobi, Gabriel Komboni and Mokwadi Gabanagae, leaving the state through the Malete Land Board weighing options about the dispute.
The Land Board was crying foul of ownership and wanted to cancel its title deed, which is managed and held by the tribe through their paramount chief, Kgosi Mosadi Seboko. But one may wonder if the Land Board by its own accord shot itself in the foot by initially disowning the farm during a similar case involving the Quarries of Botswana. So, did the Land Board relinquish the ownership of this land?
The Balete tribe has faced a similar challenge with the land following a lengthy legal battle with another entity being the Quarries of Botswana when the tribe through Kgosi Mosadi was cited in the case after residents of Mokolodi village refused for the company and its customers to access a route that goes through their village.
The case ended at the Court of Appeal (CoA) where accordingly the Land Board joined the proceedings after showing interest in the matter.
According to extracts in the judgement, the Land Board was originally not party to the Quarries case but it was added as one of the respondents by the CoA at its own motion after it appeared that it could be an interested party in respect of the ownership of the farm.
“Even though it was joined as the 5th respondent due to the possibility that it was the owner of the farm, the Land Board at the Court of Appeal filed an affidavit disowing ownership of the farm and indicating that as far as it knows and informed by legal opinions tendered by the Attorney General the farm belonged to the tribe. Be that as it may, the Land Board is relying on the very same judgement to claim ownership or jurisdiction over the farm,” read the papers.
The Judges explained that though the Land Board was not part of the proceedings at the High Court they were added at the tail of the case and that even then it said under oath that the farm has at all material times belonged to the tribe. The bench of the High Court of Justices Mothobi, Komboni and Gabanagae said the Land Board was relying on the CoA judgement though many issues raised on the current matter were not dealt with. According to the Judges, the counter application of the tribes’ cause of action was the unconstitutionality of the legislation and that the issue of constitutional interpretation of the legislative scheme in the quarries case raised by the tribe was not decided.
“A close reading of the CoA judgement would show that such an issue was not decided. Neither the High Court nor the CoA dealt with any cause of action in respect of the constitutional rights to be protected from discrimination,” the Judge stated.
The Judges explained that the CoA did not decide the issue of ownership and constitutional issues raised in the proceedings and that they held that the CoA did not deal with and determine the issue of ownership of the farm together with the constitutionality of the Tribal Territories Act of 1973. According to the Judges’ interpretation of the law in regards to the Tribal Territories Act, Acquisition of Property and the Provisions of the Acquisition of Property Act said they were not followed when the farm was acquired to incorporate it into the tribal territory and thus remove it from being private land.
“The use of the amended Tribal Territories Act of 1973 read with section 10 of the Tribal Land Act to acquire the farm, which is private property does not pass legal and constitutional muster. There was no attempt at all to follow the constitution or the acquisition of the Property Act,” stated the Judges.
The bench pointed out that the fact that the property would be in the hands of the Land Board such that the tribe would have access to it did not change the legal requirements of acquiring the same property. They said even if it could be said that the tribe would have access to the farm once its title has been cancelled and the Land Board was capable of dealing with it in terms of the Tribal Land Act, the tribe would not have control of the property and as to who would be allocated the same property since the Act was amended to ensure that tribal land was no longer reserved for the tribe of the specific tribal territory but for citizens of Botswana.
“The tribe would therefore have lost the incidents of ownership and no longer be able to control the use of the farm,” stated the Judges.
On the interpretation of section eight, which states that where private property was to be acquired by the state or its agencies, then such could only be done where the property was required for public purposes and upon prompt compensation for the same, the Judges said the CoA misinterpreted the section.
According to the Judges, on proper reading of the same section, it exempts the requirements of section eight of the Constitution where the entity from which the property was compulsorily acquired was held by a body corporate established by law for public purposes which monies for that body corporate are provided by Parliament.
“Therefore the aforesaid provision refers to the property being held by a body corporate at the time of acquisition and not that it was to be held by a body corporate in the future. The tribe from which the property has been acquired is certainly not body corporate established for public purposes. The money it used to fund the purchase was not appropriated from Parliament,” stated the Judges.
In conclusion the Judges pointed out that the decision was that Farm Forest Hill 9-KO did not lawfully vest in the Land Board by virtue of the Tribal Land Act and hold that the Balete tribe has been unconstitutionally deprived of its property contrary to section three and eight of the Constitution.