Khwai Development Trust challenges Khama 'directive'

FRANCISTOWN: Justice Bashi Moesi is scheduled to hear a case in which the Attorney General (AG) is refusing to avail a Presidential Directive in which former president, Ian Khama directed that all land for tourism use be transferred.

The land for tourism use was to be transferred from the Land Boards to Central Government notwithstanding due and sufficient notice.

The AG has taken up the defence of the matter on behalf of Tawana Land Board over a matter in which they say may or is likely to affect major government policy. 

Khwai Development Trust, through its attorney Martin Dingake is suing Tawana Land Board for the issuance of a lease in respect of one of the tourism concessions in Ngamiland.

In their defence, the AG says that the lease cannot be issued by the Land Board as this will run contrary to the Presidential Directive.

Tribal land in Botswana is vested under the jurisdiction of the concerned Land Board in terms of the Tribal Territories Act and the Land Board.

Initially, Khwai Development Trust had sought the production of a copy of the Presidential Directive after the filing of the memorandum of appearance to defend through a request for further and better particulars.

The AG was later served with a letter demanding the production of the directive and a formal notice in terms of Order 39 of the Rules of the High Court.

The dates within which production was sought came and went with no response from the AG. 


Notwithstanding that in the notice they were informed that if they object to production they must do so and state the basis of the objection and that if no production is made on the stated dates an application to Court will be made under Order 39 Rule 3 (1) for the production.

“It is submitted that the plaintiffs would suffer great prejudice where the production sought to be ordered is not provided earlier, either to save the cost or to enable the plaintiffs to adequately advise themselves in respect of the prospects to the Central Government. On the other hand, the respondent will not suffer any prejudice if they were to produce a copy of the directive by His Excellency transferring land for purpose of tourism to the Central Government,”

the plaintiffs argue.

The AG has neither acted in terms of the notice aforesaid nor indicated if he objects to the production or not and on what basis, if he so objects.

In the application before court, Khwai Development Trust contends that in terms of Order 39 of the Rules of the High Court the AG, by reference to the said directive and by virtue of being the principal legal advisor to the government, would have in his possession or power the said document.

They further said that the document in question relates to a matter in question being the entering of the lease agreement and that therefore, the production is necessary in disposing of and fairly so the disputes in question as well as saving the cost of litigation if same were to be availed far much earlier and they may consider the prospects of their success, which may lead to abandoning the claim altogether.

The trust says it is likely to suffer prejudice by the non-production, whereas none will visit the AG. 

The timelines for the filing of the opposing papers in relation to this application had long lapsed and the AG had not, as yet, filed their opposing papers.

On the other hand the defendant argues that “The plaintiffs have been aware since 2013 that a new lease agreement is not going to be issued in their name. They consented or acquiesced to land being leased to someone else. Therefore there has been no breach of any assurance regarding renewal of a lease agreement”.

The AG further says the treatment applied to the plaintiffs is the same as that of similarly placed communities.

“There has been no breach of any legally binding pronouncement by His Excellency the President nor any provision of the Tribal Land Act. Under the circumstances the defendant has been unjustifiably sued.”

Deputy AG, Morulaganyi Chamme represents the defendant on this matter. Justice Moesi of the Francistown High Court will hear the application to produce on November 1, 2018.




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