Ngwato Land Board challenges Sebetela's P26m claim
Lebogang Mosikare | Friday November 29, 2019 17:59
Last year in July, Justice Godfrey Nthomiwa granted Sebetela over P10 million after he and Morupule Coal Mine (MCM) entered into a settlement agreement in respect of compensation for the compulsory acquisition of his land.
MCM acquired Sebetela’s land for mining activities.
Raising points in limine (hearing on a specific legal point, which takes place before the actual case referred, can be heard) before Justice Matlhogonolo Phuthego this week, the Land Board’s attorney, David Olatotse said the defendant is established and operates within the precepts of the Tribal Land Act CAP 32:02.
“Any decision made by the defendant is to be challenged as per the dictates of the Tribal Land Act. Section 25 (1) of the Act read thus: no person shall in the absence of any written agreement to the contrary have (a) any claim against a Land Board or the State for compensation for any improvements effected by him or any other person to land which is vested in the Land Board or which for any reasons reverts to the Land Board…,” said Olatotse.
Olatotse continued that were a Land Board to elect to pay compensation in accordance with the provisions of the proviso to subsection (1), the right of the grantee does not agree to the amount of the compensation offered by the Land Board, the matter shall be referred to arbitration under the Act. By virtue of Section 25 (1) (2), the Act has ousted jurisdiction of the court and this claim ought to be referred to arbitration. He added: “Section 33 (3) reads thus: in the event of the State and any other person who alleges he is entitled to compensation under the provisions of this Section being unable to agree as to the amount of compensation, such person may make an application to the High Court or Magistrate Court of competent jurisdiction of the purpose (a) determination of his interest or right (b) ascertaining the legality of the taking possession or acquisition of the property, interest or right (c) ascertaining the amount of compensation to which he is entitled and whether or not such compensation is adequate in the circumstances of the case and, if not, what is adequate compensation may make such order as it thinks fit.”
The claim before court, Olatotse submitted, in so far as it is not based on Section 33 (2) and (3) (a) (b) has no legal basis. “The claim has no legal or factual basis as on the December 4, 2018, the State compulsory acquired the land from the Plaintiff. The claim is fatal for non-joinder of MCM.
The claim is fatally defective for failure to issue statutory notice for the claim and against the defendant. For that reason, the Plaintiff’s claim shall be dismissed with costs,” said Olatotse.
For his part, Sebetela’s attorney, Martin Maeba said the plaintiff has already played his part by availing land to the defendant and is awaiting payment.
On the issue of misjoinder, Maeba said there was no merit in that because MCM was not party to the agreement.
“The Tribal Land Act allows this court to deal with this matter,” said Maeba.
Justice Phuthego will deliver judgement on the matter on March 3, 2020.