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Sebetela edges closer in P27million land dispute

LEBOGANG MOSIKARE
Boyce Sebetela
FRANCISTOWN: The idiom 'so near and yet so far' aptly describes Boyce Sebetela's fight for millions of pula with Ngwato Land Board (NLB).

Recently, Justice Matlhogonolo Phuthego ruled in favour of the former Palapye MP and then Cabinet minister in his bid to get the P16 million, which is the remainder of the P27million compensation he expected to be paid following his surrender of various pieces of land to the state.

Sebetela has already been compensated with close to P11 million (P10,961,393. 17) by Morupule Coal Mine (MCM), on behalf of the state, after he entered into a settlement agreement with MCM for the compulsory acquisition of his property.

In his ruling, Phuthego said that the plaintiff in his declaration stated that on or around November 24, 2016, the defendant offered to compensate him P27,704,557.23.

“He continues to say that on November 28, 2016, he accepted the offer and attached a copy of acceptance letter as Annexure I. The plaintiff further alleges that on June 7, 2018, in breach of the agreement between the parties (Sebetela and NLB), defendant sought to vary the amount of compensation for his loss of rights to the sum of P9,657,602.00. He said he did not accept the defendant’s breach of contract and holds the defendant to the contract. As a result, he is suing the defendant to pay him the aforesaid sum of P27,704,557.23. He also alleges that the offer of P27,704,557.23 was made by defendant by way of letter, which he has attached as Annexure H,” Phuthego said.

The defendant has reacted to the plaintiff’s papers by filing a plea and the following points in limine (technical points that are dealt with before the merits of the case are dealt with): the defendant is established and operates within the Tribal Act (Cap. 32:02) and says that any decision made by the defendant is to be challenged as per the dictates of the Tribal Land Act. The defendant’s submission is that by virtue of Section 25 (1) and (2) of the Act, the Act has ousted the jurisdiction of the High Court adding that the plaintiff’s claim ought to have been referred for arbitration.

“The defendant’s submission is that the claim before court in so far as it is based on section 33 (2) and (3) (a) (b), has no legal basis.”

Phuthego also said that the defendant has submitted that the claim had no legal basis as on December 4, 2018. 

“…Defendant has submitted that the claim is fatally defective for failure to

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issue a statutory notice against the defendant…”

“It follows, so the defendant argues, that the plaintiff’s rights can only be enforced by the mechanism under the Tribal Land Act. It submits that as a consequence, Section 25 (2) of the Act has ousted the jurisdiction of the court to deal with this matter,” said Phuthego. 

On the other hand in response to the points in limine, Phuthego said, as distilled from his heads of argument is that there are no clear terms in Section 25 of the Tribal Land Act, which excludes the jurisdiction of the court to determine whether or not there was an agreement between the grantee and the land board on the amount of compensation… 

“Plaintiff also submitted that the referral of disputes for arbitration only concerns matters where there is no agreement between the land board and the grantee for compensation,” said Phuthego. 

He added: “…In my judgement, it does not make any difference in view of the relief sought as to whether the plaintiff comes by the road of application or by road of action. Sometimes a matter that had started as an application ends up in witnesses being called where there was a dispute, as if it was an action. In fact, in this matter there appears to be disputes of facts in regard to how much is to be paid to the plaintiff as compensation and who should pay”.

 Now that the state has expropriated the land in question, Phuthego said, it makes more sense for the plaintiff to proceed by way of an action.

“On the basis of the aforegoing, I adjudge that the plaintiff has properly filed his case with the High Court.” 

As a third party in the form of a minister responsible for lands he has joined the fray by causing expropriation of the land in question, Phuthego said he was of the view that it was of paramount importance that the Attorney General (AG) be joined to the proceedings. 

“In the premises it is ordered as follows: The points in limine raised by defendant are hereby dismissed with costs. The plaintiff is hereby granted leave to join the AG as a defendant and serve him with appropriate court documents,” Phuthego ruled.

Attorneys Martin Maiba and David Olatotse represented the plaintiff and defendant respectively.

The matter is now scheduled for initial case management conference on May 19.



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