20 January 2023, Gaborone – On Tuesday, 24 January 2023, the Botswana Court of Appeal will hear an appeal brought by the Attorney General and the Registrar of Deeds (Appellants) challenging the judgment of a full bench of the High Court delivered on 21 May 2022. The High Court ruled that the Ba-Gamalete Tribe were the rightful owners of Forest Hill Farm. The case relates to a long-standing dispute between the parties regarding the inclusion of Forest Hill in the Bamalete Tribal Territory. The Tribe had sought recognition of the Tribe’s ownership over their land and challenged the constitutionality of the legislative scheme relating to tribal land. The High Court judgment emphasised that the Constitution entrenched the right not to be deprived of property without compensation. The High Court noted that the Land Board did not attempt to follow the Constitution or the Acquisition of Property Act when it tried to obtain the Tribe’s title deed land.
The government argues that the Court of Appeal had already determined the ownership of Forest Hill Farm in a previous case and that the High Court had no jurisdiction to re-open the matter. The Ba-Gamalete Tribe, represented by its female chief Kgosi Mosadi Seboko opposes the appeal and supports the High Court’s judgment.
The Tribe disagrees with the High Court’s failure to address the Tribe’s constitutional challenge, which concerns the violation of the Tribe’s equality rights by the legislative scheme. Sadly, the Court of Appeal struck out the Tribe’s cross-appeal against the High Court decision. The Tribe will make oral arguments opposing the appeal during the hearing.
“This case demonstrates how colonial legacies of land dispossession have persisted in Africa. Similar to colonial powers, post-colonial States continue to use various schemes, including legislation, to take away land from Africans,” says Brigadier Siachitema from the Southern Africa Litigation Centre (SALC) which supports the case. “This case is even worse because Forest Hill is privately registered property. The only reason the Ba-Gamalete have been denied the security of tenure and the protection other freehold owners enjoy in Botswana is that they are a Tribe, showing clear discrimination in how land is managed.”
In 1925, the Ba-Gamalete 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 the Tribal Land Act of 1970 and the Tribal Territories Act of 1933 vested all rights and titles to land in tribal areas in Land Boards. The Act was amended in 1973 to include the Farm owned by the Tribe. 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 High Court, the Tribe opposed the Land Board’s application because the law on tribal land, if correctly interpreted, cannot be construed to remove their ownership of 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 Tribe’s farm vested in the Land Board, it would mean that the land the Tribe had purchased with its resources could be taken from them and given to a statutory body without compensation. Such an interpretation would 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.
Motlhala Ketshabile & Company, Rantao Attorneys, Adv Geoff Budlender SC and Adv Mitchell de Beer represent the Tribe, with support from the Southern Africa Litigation Centre represented the Ba-Gamalete Tribe.
For more information on the case, please visit our website.
ISSUED BY THE SOUTHERN AFRICA LITIGATION CENTRE