6 October 2022 – On Tuesday, 11 October 2022, the Court of Appeal of Botswana will hear an appeal brought by the Attorney General, the Registrar of Deeds, and the Malete Land Board (Appellants) challenging the judgment of a full bench of the High Court delivered on 21 March 2022. The High Court ruled that the Ba-Ga-Malete Tribe were the rightful owners of the Forest Hill Farm.
The Court emphasised that section 3(c) of the Constitution entrenched freedom from deprivation of property without compensation. Section 8 of the Constitution 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 did not attempt to follow the Constitution and the Acquisition of Property Act.
However, the Appellants are arguing that the Court of Appeal had already determined the issue of ownership of Forest Hill Farm in the case of Quarries of Botswana (Pty) Limited v Gamalete Development Trust and Others, 2011(2) BLR 479(CA). Consequently, the appellants argue that the High Court has no jurisdiction to re-open the matter.
The Ba-Ga-Malete Tribe, represented by its female chief Kgosi Mosadi Seboko opposes the appeal and supports the High Court’s judgment. In addition, the Tribe has cross-appealed against the High Court decision as it failed to address the Tribe’s constitutional challenge, which concerns the violation of the Tribe’s equality rights by the legislative scheme.
This case relates to a long-standing dispute between the parties regarding the inclusion of Forest Hill in the Bamalete Tribal Territory. The Tribe seeks recognition of the Tribe’s ownership over their land and challenges the constitutionality of the legislative scheme relating to tribal land.
In 1925, the Ba-Ga-Malete Tribe used their resources to buy the Forest Hill Farm for grazing purposes and have managed and controlled it ever since. Neither the colonial government nor the Republic ever exercised any ownership or management regarding the farm.
In the High Court, the Land Board contended that, by 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 in respect of Forest Hill.
In the counterapplication, the Tribe opposed the Land Board’s application because the two Acts on tribal land, if correctly interpreted, cannot be construed to divest ownership over Forest Hill Farm. The Tribe bought and owned the farm, which does not fall within the definition of tribal territory in the Acts. If the Court found the farm vested in the Land Board, the Tribe argued the legislative scheme violates their rights to property and freedom from discrimination, as protected in sections 8 and 15 of the Constitution.
In effect, it would mean that the land the Tribe had purchased with its resources would be taken from them and given to a statutory body without compensation. The statutory body may then use it to benefit other citizens or external investors, contrary to section 8 of the Constitution. Such an interpretation would further mean that the legislative scheme treats the civil rights of tribes and their members less favourably than the treatment of non-tribal citizens, on the sole ground of their membership in a tribe, in contravention of section 15 of the Constitution.
Motlhala Ketshabile & Company, Rantao Attorneys, Adv Geoff Budlender SC and Adv Mitchell de Beer represent The Tribe. The Southern Africa Litigation Centre supports them.
ISSUED BY THE SOUTHERN AFRICA LITIGATION CENTRE