The Balete tribe and the government’s fate will be decided today following a bitter legal war over a vast piece of land.
The Gaborone High Court will deliver the anticipated judgement on the Balete Kgale Farms ownership following a clash between the Balete tribe led by Kgosi Mosadi Seboko and the Malete Land Board.
The government has been pushing for the cancellation of the title deed covering a portion of Farm Forest, known as Hill 9-KO owned and managed by the tribe, while the latter insists it is the rightful owner.
According to court documents, the disputed land in question dates back to 1925 when Balete bought a farm known as Forest Hill 9-KO for investment purposes. The tribe contributed to raising the 3,000 Sterling Pounds required to purchase the land from Aaron Siew. To this day as Balete claim the title deed is in the name of Kgosikgolo for and on behalf of the tribe.
The main case is that the Malete Land Board on behalf of the government instituted court proceedings suing Kgosi Mosadi Seboko and the Gamalete Development Trust for the title deeds to the land. The Land Board reportedly has investors ready to pump in billions in commercial development on the land, while the tribe argues that it historically owns the farms and that Balete are also facing land shortages. Balete have also expressed frustration with the lack of compensation for the land, as proposed by the Land Board.
The government’s case
The government is before the court because it insists that the farm does not belong to the Balete tribe.
The Land Board’s case is that the acquisition of the contested farm was not unconstitutional because it was done with the consent of the tribe by own admission in a previous court case relating to the same issue.
According to the government, which has been trying to cease the tribe’s ownership of the farm through the Malete Land Board by cancelling its title deed, it admitted that subsequent to the introduction of the land boards, the tribe was the one that requested the state to manage its various farms.
“The land was incorporated into the Bamalete Tribal Territory at the request of the tribe and under an amendment of the Tribal Territory Act of 1973,” read the documents.
The government has 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 handing over the property and that it be incorporated into the tribal territory,” the government stated.
The state further pointed out that the incorporation of the farm into the tribal territory was done unanimously at the approval of the House of Chiefs (Ntlo ya Dikgosi), which included the Kgosi of the Balete tribe noting that it was likely that a kgotla meeting was held after 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,” noted the Land Board.
The Bamalete tribe’s case The tribe that has been resisting relinquishing the rights of the farm has expressed shock that the state wants to claim ownership of the farm under the disguise that the tribe agreed to the acquisition of the farm, that it was tribalised and vested into the Malete Land Board.
The tribe submitted in its evidence 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 to Malete Land Board’s claim, the tribe said there had been constant discussions concerning 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 Land 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 property noting that even in their previous court case with the state, the Board admitted in its documents “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. The case was before a bench of Justices Michael Mothobi, Gabriel Komboni and Mokwadi Gabanagae. Senior counsel Nigel Redman represented the government while Oteng Motlhala who instructed advocates senior counsel Geoff Budlender and Mitchell De Beer represented the Balete tribe.