The Balete tribe has bluntly denied ever consenting to the acquisition of the contested Kgale Farm by the government as claimed.
Instead, the tribe that is currently in a bitter war with the state over the ownership of the farm says before the legal wars government had shown interest in purchasing the farm as the fight to get hold of the it intensified on Monday before the Gaborone High Court.
The tribe through its lawyer Oteng Motlhala who instructed advocates, Senior Counsel Geoff Budlender and Mitchell De Beer says it was surprising that the State wants to claim ownership of the farm under the disguise that the tribe agreed to the acquisition of the farm and that it was tribalised and vested into the Malete Land Board.
“The tribe submits that since 1925 it has always held the farm in freehold title and that it was never included in the Bamalete tribal territory,” In its counter application to Malete Land Board, one instituted to cancel the title deed of the farm the tribe instead said there had been constant discussions concerning the its freehold ownership of the farm and that more recently in 2003, the government began expressing interest in purchasing the farm.
The tribe further pointed out that in 2005 the state admitted through the Attorney General that the farm was never tribalised while the Ministry of Lands and Housing later investigated the matter and concluded that the farm belonged to the board. “However a mere six months later the same Ministry held a meeting with the tribe to reopen negotiations for the farm’s purchase.
In 2007, the Minister addressed another meeting with the tribe which recorded discussions concerning the government’s intention to take over the farm in exchange for compensation. This is all inconsistent with a view that the tribe was divested of ownership of the farm by law and consent”, said the tribe.
Moreover the tribe said the board itself has historically treated the land as the tribe’s freehold’s property noting that even in their previous court case with the state, the board admitted in its documents that “it had always understood and treated the farm as the private property of the Balete tribe”.
The tribe feels it would be unconstitutional and discriminatory on the part of the government to deny it ownership of the farm that it bought with its hard earned money while hiding behind some legislature schemes which say the farm was divested from the tribe.
On the other hand ,the government insists that acquisition of the contested farm was not unconstitutional because it was done with the consent of the tribe by their own admission in a previous court case relating to the same issue.
According to the government which is currently trying to cease the tribe’s ownership of the farm through the Malete Land Board by cancelling its title deed admitted that subsequent to the introduction of the land boards, the tribe was the one that made request for the state to manage its various farms.
“The land was incorporated into the Bamalete Tribal Territory at the request of the tribe and pursuant to an amendment of the Tribal Territory Act of 1973,”reads the documents. The board’s lawyer, Senior Counsel Nigel Redman explained that the incorporation of the property as part of the Bamalete Tribal Territory was effected with the consent and agreement of the tribe. “Indeed it was initiated by the board which was chaired at the time by the Kgosi of the tribe.
The minutes of a meeting of the Land Board dated June 9, 1971 are telling. At that meeting it was moved and seconded that ploughing operations on the farm be stopped.
It was resolved that a kgotla meeting be held to request the people about handling over the property and that it be incorporated into the tribal territory,” he said.
The state further pointed out that the incorporation of the farm into the tribal territory was done unanimous at the approval of the House of Chiefs which included the Kgosi of the Balete tribe noting that it was likely that a kgotla meeting was held subsequent to the board meeting of June 16, 1971 where an agreement was reached to incorporate the farm.
“It is submitted that the consensual and voluntary transfer of the farm to the board in the circumstances of this matter was not unconstitutional.
The amendment of tribal territory act merely gave effect to the agreement which had already been reached between the tribe and the board,” said the board.
The High Court is expected to deliver judgment on the matter on May 21, 2021. The case was held virtually on Monday before a bench of Justices Michael Motlhabi, Gabriel Komboni and Mokwadi Gabanagae as the government made an application pushing for the title deed cancellation over the farm. The board is suing Kgosikgolo Mosadi Seboko and the Gamalete Development Trust for the title deed of the farm. The contested piece if land is in respect to the remaining extent of the Farm Forest known as Hill 9-KO.
According to court documents, the farm in question dates back to 1925 when Balete bought a farm known as Forest Hill 9-KO farm for investment purposes. The tribe contributed to raising the 3,000 Sterling Pounds required to purchase the land from Aaron Siew. To this day, the title deed is in the name of Kgosikgolo for and on behalf of the tribe.