Presiding over the case last week, Land Tribunal president Galesiti Baruti said he would reserve judgement and the concerned parties would be notified later.
The two trusts, Inaphuka and Koinaphu, are challenging the land board's decision to award Phuduhudu Ranch to Oryx Game Ranch Pty Limited.
Arguing for Inaphuka Trust, Moitaly Dikgokgwane said the April 8-12, 2002 decision should be invalidated because the method used was flawed. He said the matter should be referred back to the land board for reassessment.
Dikgokgwane said the community had previously used this land, but had ceded its rights to its utilisation to the government, which had used it as Botswana Livestock Development Corporation (BLDC), breeding livestock for communities in the area. He said the government then decided that the farm be given to Kgalagadi Land Board and be advertised for lease to any entity. Dikgokgwane said consultations with the communities were made to determine the land use before advertising. He said his clients were rejected on the grounds that they had not consolidated, which was an irrelevant factor. He said what needed to be determined was whether the land board used its discretion fairly and properly.
He said the method it applied to arrive at the decision was not reflected and whether the decision was made by secret ballot or by a show of hands.
He said the number of people should have been taken into consideration and that the consultations made had given rise to legitimate expectations - that the communities would be given priority as the ranch belonged to them.
Omphemetse Motumise, for Koinaphu Trust, said the decision to give the ranch to Oryx was tainted by unreasonableness and relied on irrelevant considerations. He was however quick to state that by the time the ranch was advertised, Inaphuka Trust did not have a title deed or leasehold over the ranch. He argued that Kgalagadi Land Board had not compiled a list of factors or criteria to be applied, saying the decision was taken 'haphazardly.' According to him, since Koinaphu Trust had the highest score, it was entitled to be declared the winner and awarded the ranch.
Phuduhudu Ranch was advertised around December 2001, and those interested were required to submit a written proposal, management plans to be approved by the Department of Wildlife and National Parks (DWNP), proof of finance and certificate of registration.
Koinaphu Trust was rejected on the basis that they had been previously allocated land, whilst Oryx was said to have financial capability to develop the land. Motumise's contention was that the public were not informed that prior allocation would be a disadvantage.
He stated that because the land board had not decided on the criteria to be applied, the consolidation used against Inaphuka and criteria of fair and just distribution used to disqualify Koinaphu Trust had not even been mentioned in the advert and were not applied across the board.
The two lawyers for the appellants shared the same sentiment that allegations on corruption were not removed from the records. The minutes of a meeting revealed that some of land board members were allegedly bribed with cheques to allocate the land to Oryx and this was never investigated. Motumise said the grave statement on corruption was never expunged in their records.
He argued that it would be fair to give the land to a community trust with hundreds of members rather than to a private company with two shareholders.
In defence of the land board, Anna Motlhagodi said that Inaphuka Trust took part in the contest when applying for the ranch and should have known it could go to anyone. She said the applicants failed to prove that they had land rights and that the community had been consulted about the use of the farm and recommended it for game farming. She said the ranch had been reverted to Kgalagadi Land Board by the cabinet, therefore they were the sole custodians with the authority to make decisions.
She said her clients had no idea when it advertised that there would be confusion over membership of trusts and that the issue of consolidation came about while the applicants were being consulted. Motlhagodi said they had the duty to investigate, as it would have been dangerous to award a valuable natural resource such as land to an entity that would probably not utilise it properly. She said as for the Koinaphu Trust, it was the only applicant that had had an allocation of land. "Those with nothing would be considered," she said. On defending companies, she argued that they, too, can uplift communities in terms of providing employment opportunities, skills transfer, and by increasing government revenue through taxes or attracting customers to Botswana and promoting its image.
On the issue of corruption, she questioned what those who talked about bribery had done. "Can they demonstrate that they have taken the issue to the relevant authorities? It is not substantiated," she said. Motlhagodi said they probably did not take it (issue of bribe) seriously and hence did not ask that it be investigated.
She said all applicants were given equal treatment and called for the appeal to be dismissed.
Terence Dambe, who was defending Oryx, said that the issue of bribery was 'worth absolutely nothing' as the allegation was only made in a meeting. He said there was a conflict about which community belonged to which Trust. He said it would have been highly irresponsible if they (community trust) were given the ranch and required to consolidate as a result of an assessment. He said the appellants failed to build a sufficient case for the appeal to be granted. Dambe also argued that it was clear all parties were treated fairly and objectively.
He said that it was too simplistic an assumption that the community would have run the ranch well, with absolutely no ideas or skills. He said giving the ranch to the community should not be equated with it benefiting the community.
Alternate member Matthews Sekgororoane and colleague Gordon Lecoge sat with the Land Tribunal president.
