News Release: BOTSWANA HIGH COURT FINDS COMPULSORY ACQUISITION OF A TRIBE’S FREEHOLD LAND UNLAWFUL

Salc : Staff Writer

21 May 2021, Gaborone – Today, a full bench of the Botswana High Court, in a judgment broadcast live on television and online, held in favour of the Ba-Ga-Malete Tribe, represented by its female chief Kgosi Mosadi Seboko. The case related to an application by the Malete Land Board to include Forest Hill in the Bamalete Tribal Territory and the control over that land by the Board. The Tribe’s counter-application sought recognition of the Tribe’s ownership over and control of Forest Hill, which they had bought using their resources.

The Court ruled that the Ba-Ga-Malete Tribe are the rightful owners of the Forest Hill Farm and that the Tribe has been unconstitutionally deprived of its rights. The Court emphasised that section 3(c) of the Constitution entrenched freedom from deprivation of property without compensation. Section 8 of the Constitution further prevents property acquisition without following the law, prompt and adequate compensation, and the right to access the courts. The Court noted that the Land Board had made no attempt to follow the Constitution and the Acquisition of Property Act.

“This court’s judgment is vital to protecting the land rights of tribes and communities in Botswana from the unlawful transfer of land without their consent,” said Brigadier Siachitema from SALC.

BACKGROUND TO THE APPLICATION

In 1925, the Ba-Ga-Malete Tribe used their resources to buy the Forest Hill Farm for grazing purposes. Since then, the Farm has been managed and controlled by the Tribe. Neither the colonial government nor the Republic ever exercised any ownership or management in respect of the Farm.

The Land Board contended that, under the Tribal Land Act of 1970 and the Tribal Territories Act of 1933, all rights and title to land in tribal areas, including the Farm, vests in the Malete Land Board. The Malete Land Board accordingly sought a court order cancelling the Deed of Transfer in favour of the Gamalete Development Trust regarding Forest Hill.

In their counter-application, the Tribe opposed the Land Board’s application on the basis that the two Acts about tribal land, if correctly interpreted, cannot be construed to divest ownership over Forest Hill Farm, which the Tribe bought and owned, and which does not fall within the definition of tribal territory in the Acts. The Tribe argued that the transfer of the deed would amount to compulsory acquisition of their land and discrimination, in violation of their constitutional rights.

The Tribe is represented by Motlhala Ketshabile & Company, Botlhole Law Group, Rantao Attorneys, Adv Geoff Budlender SC and Adv Mitchell de Beer. The Southern Africa Litigation Centre supported the case.

ISSUED BY THE SOUTHERN AFRICA LITIGATION CENTRE