When asserting last year’s High Court’s decision to grant Bamalete ownership of their piece of land called Forest Hill 9-KO, the Court of Appeal (CoA) yesterday revealed that the court aquo was right in holding that the legislative scheme was unconstitutional for permitting the compulsory acquisition of the tribe’s farm.
Delivering the judgement, Judge President Tebogo Tau said this was in violation of the protections of the right to property enshrined under section 8 of the constitution. “Based on the evidence on record, the farm was not purchased from the tribe. It was acquired by the land board through an act of Parliament without the consent of the Tribe. That in itself gave rise to compulsory acquisition,” Tau said.
She stated that section 8 prohibits compulsory acquisition unless certain conditions are met such as where acquisition is necessary and expedient and cogent reason has been provided for doing so and where payment or compensation for compulsory acquisition has been provided. Agreeing with the outcome reached in the judgement, Judge Isaac Lesetedi who was part of the five CoA bench said there was no evidence of any consultation with the tribe let alone the consent.
Lesetedi said Section 8 of the constitution subsections 1 and 6 emphasise that no property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired.
