Basarwa lose another one

TSHIRELETSO MOTLOGELWA
Staff Writer | Thursday July 22, 2010 00:00

 

Basarwa who chose to live inside the Central Kalahari Game Reserve must live with the difficulties that their choices present, according to High Court justice, Lakhvinder Walia, dismissing the application in which a group of Basarwa sought to be allowed to drill a borehole there. 'Basarwa have chosen to settle in areas far from those facilities.

They have become victims of their own decision to settle an inconveniently long distance from the services and facilities provided by the government,' added Walia. Walia dismissed the argument that government, by denying Basarwa access to the borehole, was exposing them to inhuman treatment contrary to the constitution.

He argued that, as the Roy Sesana case had concluded, government was under no obligation to provide essential services to Basarwa living inside the park.

'In raising that argument the applicants ignore altogether the unequivocal acknowledgement on their part that the government is under no obligation to provide any essential service to them. If the government has no obligation to provide an essential service, it is under no obligation to facilitate any such service,' he concluded. However, Walia also criticised Basarwa for having failed to properly pursue this issue in their arguments, only adding it as 'an afterthought' in the rest of their presentation.

Walia also dismissed Basarwa advocate Gordon Bennet's earlier contention that according to Section 6 of the Water Act, the dwellers of CKGR, as on other state land, have a right to drill boreholes of their own desire without seeking any permission.

The judge argued that although Section 9 of the same law contradicts Section 6 by requiring permission for any drilling, it was up to him to reconcile this. He argued that Section 6 does not grant unlimited and uncontrolled drilling but rather should be read with the second part which provides further details. He said he would not use section 6 as Bennet wanted him to.

'The inconsistency between Sections 6 and 9 of the Water Act can, in my view, be resolved in terms of Section 29 of the Interpretation Act. The obvious result is that Section 9 prevails. In the result, any person wishing to abstract water may do so only by authorisation as provided in Sections 9 and 15 of the Water Act. Also the absurdity created by the meaning contended for by the applicants cannot be sustained,' concluded Walia.

Walia furthermore asked both parties to pay their costs. Bennett represented Basarwa while Paul Berger, Boingotlo Gabriel Toteng and D. Lundstron represented the government.