More about the Kgalagadi land scandal

| Wednesday April 3, 2013 00:00

In my letter to Mmegi, published on Friday 1st March, I said that I knew of at least 14 farms which had been unlawfully allocated in the Kgalagadi Communal Area.Today, having searched the documents available to me, I can confidently state that there are at least 20 such farms larger than 1,000 hectares in extent. (Mmegi has the list).

All these farms are located on land zoned for communal use.  In most instances, the land was already being used communally by ordinary Batswana.  As a result, those people who were using the land were deprived of their rights without any form of due process.  They were neither consulted nor given a hearing as required under common law, nor was the District Council consulted on the change from communal to commercial use as required under section 17 of the Tribal Land Act.

This provision exists to ensure that commoners' rights are protected by requiring the Land Board to consult their elected representatives.  The effect of the loss of this land will be to reduce the incomes of all people using the communal area concerned.

When the land use zoning exercise was undertaken in the late 1970s, the communal areas were deliberately made larger than the then current use to provide space for expansion and for use by future generations.  Where farms have been allocated outside the area of current use, then it is land set aside for future generations, i.e. for our children and grandchildren that has been taken.  The long-term result will be the impoverishment of everyone who uses that communal area.

All these allocations are illegal because:-Allocation of a large fenced farm in a communal area is incompatible with communal use of the land and thus contravenes Section 17 (iii) of the Tribal Land Act and Regulation 20 (4) of Tribal Land Regulations.

In no case did the Kgalagadi Land Board get the consent of the Kgalagadi District Council for the change of use as required by Section 17 (i) of the Tribal Land Act.

In no case were the users of the land informed of the proposed change and given the opportunity to express any concerns about it.

In only one case (Councillor Brooks' farm) was any Kgotla meeting held to inform the public about the proposal.  In that instance, no meeting was held in the two communities most affected.

To put it simply, the land has been stolen from its rightful users who are ordinary Batswana. Four farms were allocated to the west of Tsabong.  I was one of a number of farmers (40 all told) who challenged the allocations of farm IL3 to du Preez, IL4 to van Romberg (each of 10,880ha and both allocated in April 2004) and IL6 to van Zyl (of 8,600ha, allocated in May 2001). The applicants were aware that these were dezoned farms (i.e. were no longer zoned for commercial use). These farms were dezoned in 1982 following representations from the communities affected that they were already using the land, and had reverted to communal use.

 A further farm of 5,000ha was allocated to Councillor Sam J. Brooks in March 2005 on land that had always been zoned for communal use. I challenged the allocation of this farm.

As pointed out by Collins and Newman in their opinion to the Kgalagadi Land Board, the allocations to du Preez, van Romberg and van Zyl are all null and void because the applicants are all South African citizens and the Land Board had failed to obtain the Minister's consent beforehand as required by Section 24 (2) of the Tribal Land Act and Regulation 20 (2) of Tribal Land Regulations.

M. Oabile was the Board Secretary of the Kgalagadi Land Board at the time most of these allocations were made and advised the Board to allocate them.

He was transferred to Tlokweng Land Board soon after the allocation of farms IL3, IL4 and IL6 was challenged in the Land Tribunal.  He later retired but was then re-appointed on contract to a senior position in the Ministry of Lands and Housing, where he remains.

The government, in particular the Ministry of Lands and Housing, is well aware of all the above. In December 2006, the then Minister of Lands and Housing, Honourable Ramadeluka Seretse, told the Kgalagadi Land Board that the allocations to du Preez, van Romberg and van Zyl were illegal and that they would certainly lose the case in the High Court even if they managed to win on a technicality in the Land Tribunal. 

He advised them to settle the matter.In a breath-taking display of insubordination, the then Board Secretary, M. P. Phiri, told his board that the Minister was 'un-informed' and advised them to fight the case in court. (Phiri is now a senior official in the Ministry of Lands and Housing).

The Kgalagadi Land Board has two written opinions from reputable attorneys that these allocations are unlawful as well as the Minister's verbal advice but has ignored all of them.

The allocations to du Preez, van Romberg and van Zyl were appealed to the Land Tribunal in 2004 where the cases languished until 2012 when the Tribunal ruled that it had no jurisdiction to hear the matter.

Consequently, the merits of the matter have not been heard and the issues are still unresolved. It should be noted that the Land Tribunal is not independent but is appointed by the Minister of Lands and Housing acting on the advice of his officials - several of whom have an interest in this matter.

Some two years ago, in early March 2011, I complained to HE the President that the du Preezis were developing their farm without a lease (i.e. squatting), a criminal offence in terms of section 39(1)(a) of the Tribal Land Act and that the police were refusing to act. I gave him copies of my complaint statement to the police and of letters to the Land Board and the Minister of Lands and Housing about the matter.

I followed this up in writing on 21st March 2011, 28th July 2011 and again on 26th September 2011, including a request for an appointment with HE to discuss the matter. I never received any response of substance to these letters, nor was any action ever taken, nor was I given an appointment to meet HE about the issue. However, on 3rd November 2011, the Office of the President sent me a letter accusing me of failing to show respect to the leadership of this country!

Early in February 2012, I complained to the Minister of Defence, Justice and Security,  Ramadeluka Seretse, about the failure of the police to prosecute the du Preezis. He told me that the police could only act following a complaint from the Ministry of Lands and Housing.

This is simply not true. The police have original jurisdiction to prosecute any criminal offence. If it were not so, how come the police routinely prosecute offences under the Trade Act, the Tourism Licensing Act and the Wildlife and National Parks Act, to name but three, without reference to the responsible ministries?

Although I knew what Minister Seretse had told me was untrue, I nevertheless made a written complaint to the Minister of Lands and Housing, Hon. Lebonaamang Mokalake, asking him to refer the matter to the police with a request that the du Preezis be prosecuted. I eventually got a response saying that to do so might prejudice the ongoing Land Tribunal case. This begs the question as to what legitimate interest the Ministry of Lands and Housing might have in not influencing a case in which land had been allocated unlawfully to persons who were now squatting on it?

All this raises many issues, including: Why was the leadership of Botswana so determined to obstruct a challenge to allocations which they knew fully well were illegal?

Why was the leadership of Botswana so determined to protect persons committing criminal acts?

Why did they fail to support people whom they acknowledged were acting in the public interest?

Why has the government failed to do anything to protect the land rights of ordinary Batswana affected by these allocations?

Why Ministers find it necessary to dissemble to Parliament and members of the public about this affair?

We all deserve proper answers to these questions. The administration of tribal land in Kgalagadi has become a significant political issue in the district. These illegal allocations are a significant factor in the BDP's loss of both the district's seats in Parliament.

The BDP is unlikely to win either of them back unless it takes vigorous and effective action to address the issue and restore lost customary communal rights to those who have lost them. Formerly stalwart BDP supporters, including party members, have made it clear that they will not vote for the BDP again.

The BDP's powerbase is the rural vote.  If the rural electorate come to see the BDP government as a threat to the security of their land rights, through its tolerance of incompetence and corruption in the Land Board system, then the BDP will lose its allegiance in short order. This is happening now in Kgalagadi and can be expected to happen in other areas, such as Ngamiland and Kweneng, which are afflicted with similar problems.

Richard WhiteTSABONG