07 March 2023, Gaborone, Botswana. Today, the Botswana Court of Appeal issued a judgment where it ruled in favour of the Bamalete Tribe, represented by Kgosi Mosadi Seboko and the Gamalete Development Trust dismissing, with costs, an appeal brought by the Attorney General and the Registrar of Deeds against the decision of the High Court.
The Court of Appeal decided that the Bamalete Tribe were indeed the rightful owners of Forest Hill Farm and that the High Court was correct in finding that the land registration scheme that allowed for the compulsory acquisition of the Tribe’s Farm violated the right to property enshrined under Section 8 of the Constitution.
The Court of Appeal also found that the High Court was correct when it decided that Section 7 of the Tribal Territories Amendment Act No. 3 of 1973 amounted to an unconstitutional deprivation of property and should be struck off or declared invalid.
This landmark judgment has safeguarded the Tribe’s property rights, which are constitutionally guaranteed and protected against interference from the state. It has affirmed that public authorities can no longer acquire such rights in a discriminatory manner without recognising individual land titles, consulting with the affected parties, and sorting their consent.
“This landmark judgment serves as a warning not only to the government of Botswana but to other African states that the persistent practice of land grabbing perpetrated under the guise of legislative and other schemes that enable governments to take away property from its citizens without obtaining their consent or paying compensation will not be tolerated” says Brigadier Siachitema, from the Southern Africa Litigation Centre.
“We are thrilled. We got the justice we were seeking for “ says Kgosi Tshimang Mokgosi, who is Kgosi Mosadi Seboko’s assistant.
Background
In 1925, the Bamalete 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 saying that the law on tribal land, if correctly interpreted, could not be understood to remove their ownership of Forest Hill Farm. Their contention was that the Tribe had bought and owned the farm, and that it does not fall within the definition of tribal territory in the Acts. They argued that if the Tribe’s farm vested in the Land Board, it would mean that the land the Tribe had purchased with its own resources could be taken from them and given to a statutory body without compensation. Such an interpretation would mean that the law unfairly discriminates between people who are tribal members and those that are not.
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.
ISSUED BY THE SOUTHERN AFRICA LITIGATION CENTRE
