Farmer appeals High Court judgement
Pini Bothoko | Friday October 27, 2017 13:41
Phale had sued the Ngwato Land Board (NLB) for cancelling his certificate of customary land grant dated June 6, 2001.Since 2008 two Mmashoro farmers and the NLB have been at loggerheads for a farmland with a borehole by the name of Dene in the outskirts of Mmashoro.
In 2013, Phale appealed a Palapye Land Tribunal judgement at the Lobatse High Court after it ruled that the disputed land belonged to the NLB, and that the plot was allocated fraudulently. In 2001, the 58-year-old Phale says he was allocated two water points; one in June by the name Dene and another in August by the name Dene-Mmashoro. He developed the first one, which is currently operating whilst the other point is still undeveloped due to controversies surrounding its allocation.
On September 29, 2017 Lobatse High Court, Judge Mercy Garekwe delivered a judgement that agreed with the Land Tribunal. Garekwe said the evidence before court clearly showed that there was an error in issuing the second certificate. Garekwe further said the said point related to the same water point that the appellant had already been issued a certificate and a ranch for, and that the error be attended to by a cancellation of the certificate. “The Land Board did not cancel any existing rights of the appellant, but merely sought to cancel a certificate, which for all intents and purposes was a duplication of sorts. Though the Judge acknowledged that some information in the two certificates varied, she did not support the appellant’s claim to the disputed point, as they did not prove that the appellant ever applied for a second water point, nor went through all the requirements of the Land Board before allocation.
She said the only thing that could have made the appellant’s claim credible was if the coordinates in the second certificate were proved by the surveyor to relate to this illusive second water point. However, she said the coordinates point to the lie propagated by the appellant. “This is a clear case where appellant’s appeal has to fail with costs and I so order,” the judgment read.
In his appeal, Phale had argued that the certificate was duly and lawfully issued pursuant to an application by him for a borehole point at Dene, a tribal area falling under the jurisdiction of the NLB. The judgment pointed out that at the time of the appellant’s application of a borehole or water point, the area in issue was zoned for communal grazing and subsequent to such application, the NLB demarcated ranches over the very same communal area and the ranch No. 24 NP, the subject of this appeal, was amongst ranches demarcated as such. It further stated that at the heart of appellant’s appeal is that he acquired customary land rights to a borehole point over which ranch 24 NP was demarcated. The demarcation did not take away such rights and the 1st respondent (NLB) needed to convert the rights from communal to common law or lease rights under the new dispensation of demarcated ranches.
Despite the ruling, Phale is still adamant that the certificate of Dene water point was duly and lawfully issued, hence his appeal to the Court of Appeal. This week, Phale poured out his grievances on how NLB allocated him a water point in 2001, and later in 2013 claimed that the plot was allocated fraudulently and cancelled the certificate. Phale narrated that in 2008, another farmer sued NLB where he was the second respondent and that farmer lost the case after failing to produce certificates and other documents, which unlike that farmer he produced before the Land Tribunal.
He said that then the Land Tribunal ruled that the land surveyor should be engaged and the latter’s coordinates analysis findings discovered that the disputed farm's east coordinate was wrongly captured and ruled that the disputed land belongs to the NLB. The report read, “Dene-Mmashoro is wrongly captured in the certificate as 60 seconds is a minute, which shall be represented as such in the ‘degrees, minutes, seconds’ format. Thus, it was plotted on one second less because it has no change to positional accuracy”.
He said following these findings, he received a letter from the NLB informing him that the farm was allocated fraudulently. “I want NLB to reconsider their decision of cancelling the certificate because I was allocated the plot lawfully and have owned it for 12 years. It is either they reconsider this decision, or compensate me accordingly,” Phale said.
He said the tribunal requested him to bring facts on why he said the plot was allocated lawfully. He said he then submitted before court the plot certificate, its lease and title deed and the NLB , which was given three weeks to respond to those facts, failed to do so.
“When demarcating ranches Land Board officials told me that since I have another water point operating, I should return the other water point certificate because they have taken a decision to cancel it to give other citizens the opportunity to own water points. That is when I took the matter before Palapye Land Tribunal, but whilst still waiting for the judgement of the case, I was surprised to learn that the other farmer that once sued me and the NLB had also filed a case suing the NLB and the judgement on that case was passed in August before mine,” Phale said.
Phale stated that the other farmer argued that he had applied for the water point before him in 1998 and was surprised that other farmers who applied for similar plots years after him were allocated ahead of him. “In August, the Tribunal passed his judgement and ruled that since he had once applied for a water point years back, there were four farms within Mmashoro lands where the NLB should consider allocating him a plot,” Phale said in part.