On Tuesday, 7 March 2023, the Botswana Court of Appeal will hand down a judgment in an appeal brought by the Botswana government (Appellants) against the judgment and order of the full bench of the High Court delivered on 21 May 2022. The High Court in its judgment ruled that the Ba-Gamalete Tribe (Respondent) were not only the rightful owners of Forest Hill farm but also that the acquisition of their farm by the government amounted to an unconstitutional deprivation of property. The High Court noted that the government, and specifically the Malete 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.
This case relates to a longstanding dispute over a large piece of land privately held by the Ba-Gamalete Tribe through a title deed. The Ba-Gamalete Tribe, represented by Kgosi Mosadi Seboko and the Gamalete Development Trust, have opposed the government’s appeal , precisely the Malete Land Board’s order directing the Registrar of Deeds to cancel their title deed. The Malete Land Board argues that specific provisions of the Tribal Land Act of 1970 and the Tribal Territories Act of 1973 have conferred the Board with ownership of the farm the Ba-Gamalete Tribe has collectively purchased for grazing purposes. The Tribe argues that when correctly interpreted, the legislative scheme did not deprive the Tribe of its ownership of the farm and that they were never consulted before the expropriation of their land, nor was there any form of payment offered to them by the State as prescribed in the Constitution of Botswana.
The case deals with property rights, which are constitutionally guaranteed and protected against unconstitutional interference by the State. It looks at how public authorities can acquire such rights in a non-discriminatory manner while statutorily recognising individual land titles. It draws attention to the disparities in access to land affecting indigenous people in rural areas and demonstrates how colonial legacies of land dispossession have persisted unabated in Africa. Similar to colonial powers, post-colonial States continue to use various schemes, including legislation, to take away land from Africans.
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 arguing that the law on tribal land, if correctly interpreted, could not be construed to remove their ownership of Forest Hill farm. Furthermore, the Tribe argues that they 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