Council, Land Board win Kweneng cemetery case

Tefo Pheage | Thursday November 26, 2015 16:18

The Gaborone Land tribunal issued a default judgement on Monday in Molepolole in favour of the defendants, the Land Board and Council at the Molepolole Magistrate Court after the complainant absented himself. His lawyers also said they were no longer representing him.

The Land Tribunal relocated the case from Gaborone to Molepolole Magistrate Court as the case was of interest to members of the community who usually throng the court in large numbers.

The Land Board had said that the piece of land belongs to the Kweneng District Council which it had allocated some years ago.

The Council, representing Magokotswane Village Development Committee (VDC), had approached KLB for recourse after Kgosiemang, without the consent of the residents, allegedly fenced the Ratlhomelang cemetery that was allocated to the VDC in 1982.

A former Ratlhomelang headman and a resident were the only people who were buried in the disputed area before it was fenced by Kgosiemang.

After the dispute between the Council and Kgosiemang, the Land Board ruled that: “Clement Ephraim Kgosiemang does not have any land rights nor conferred land rights where KDC has been allocated a cemetery plot.

 Clement Ephraim Kgosiemang is ordered to remove the fence or any other developments he may have effected on the cemetery plot within 30 days at his own expenses.”

Kgosiemang took the matter to the Land Tribunal, and the matter was postponed in March this year after he failed to attend the proceedings due to other pressing commitments.

Grounds of appeal for Kgosiemang were that KLB erred in law when it held that the appellant did not have any land rights nor conferred land rights on the property that was the subject of dispute.

He also said the respondent (KLB) erred in law when it held that KDC was properly allocated the plot in dispute for use as a cemetery when there was no evidence to that effect.

Kgosiemang, through his court papers, argued that KLB erroneously made an order compelling the appellant to remove the fence or other developments he may have effected on the property that was the subject of dispute.

“This was an implied cancellation of the appellant’s rights over the property, comprising both Customary and Common Law Rights, on the area represented on various sketch plans presented to the KLB during the hearing. Such rights were acquired by the appellant through cession to him by Kgopolo Thipe and Gaetsiwe Botlhoko,” he wrote.

Kgosiemang further submitted that KLB erred in law in making an adverse decision against the appellant without stipulating the reasons, in circumstances when KLB had been presented with ample material and evidence from which to make a decision favourable to the appellant.

Another point was that KLB erred in law when it held that the KDC has rights over the property in dispute, when the latter had not complied with requirements of both the Tribal Land Act and the Town and Country Planning Act, in that no allocation was made in favour of the KDC, and if so, that no land use plan was ever approved by the Minister nor gazetted as required by the law.