The Southern Africa Litigation Centre is working with the Botswana Khwedom Council to support Kgosi Rebeccah Banika, a female Chief, who challenged the decision of the Chobe Land Board to allocate the substantial portion of the 2500 hectares of land reserved for the Shua Khwe community in Pandamatenga to third parties. The 2500 hectares of land was earmarked for local community use as part of an agricultural development project funded by the African Development Bank (AfDB). Kgosi Rebeccah claims, and the Land tribunal has already found, that an AfDB loan was conditional upon reserving 2500 hectares for 266 households in Pandamatenga. However, the Chobe Land Board disputes this claim, arguing that no such undertaking existed. This case highlights the importance of honouring commitments made by governments or public bodies regarding communities likely to be impacted when seeking financial support from financial institutions such as the World Bank and the African Development Bank or the consent of traditional chiefs and their subjects.
Background
Around 1984, the Government of Botswana allocated an area of 25,074 hectares to farmers in the Pandamatenga in Chobe to boost cereal production. However, the allocated area started experiencing frequent flooding due to high rainfall intensity. Consequently, it became impossible to traverse the fields during the cropping season. To resolve the problem of access roads created by seasonal floodwater in the Pandamatenga farms, the government decided to construct water drainage works and access roads as long-term remedies. To implement this plan, the Government requested the African Development Bank (AfDB) to finance the project, and this was met with success.
During the government’s negotiation with the AfDB, an additional 2500 hectares of land were demarcated, making the total area of farmland affected by the project an estimated 27 574 hectares. The dispute over the 2500 hectares began on 4 April 2017, when the Chobe Land Board decided to allocate a portion of the 2500 hectares of land reserved for the local community in Pandamatenga to third parties. Kgosi Rebeccah claims, and the Land tribunal has already found, that an AfDB loan was conditional upon reserving 2500 hectares for 266 households in Pandamatenga.
Kgosi Rebeccah successfully applied for and obtained an interdict before the Land Board, pending the hearing of her objection to allocating a portion of the 2500 hectares of land reserved for the local community in Pandamatenga to third parties.
During its sitting from 22 June to 11 July 2020, the Land Board invited Kgosi Rebeccah to a hearing. After the hearing, the Land Board decided to The Land Board’s decision to allocate only 458 hectares to the local community in Pandamatenga. The Land Board further resolved to proceed and allocate 2,042 of the 2500 hectares to third parties. Aggrieved by the Land Board’s decision, Kgosi Rebeccah Banika appealed to the Lands Tribunal.
The case before the Land Tribunal
In the Land Tribunal, Kgosi Rebeccah Banika raised several of the following points:
1. Both the Government of Botswana and the Chobe Land Board’s actions and several documents established that the Government of Botswana, in partnership with the Chobe Land Board, reserved 2500ha of land for her community as a condition for obtaining a loan/grant from the AfDB.
2. She further contended that Chobe Land Board was wrong when it resolved that only 458 hectares should be reserved instead, placing the rest of the land to tender.
In response, the Chobe Land Board argued that it was correct not to allocate the entire 2500 hectares to the communities in Pandamatenga because it strictly followed the land allocation procedure set out under the Tribal Land Act.
It claims that its decision to lease the 2,042 hectares of the 2,500 hectares to third parties was justified and lawful because the Botswana Land Policy provides that commercial, industrial, civic and community plots be planned, surveyed and advertised to all before allocation.
On 30 October 2023, the Lands Tribunal delivered judgment declaring that an undertaking to allocate 2500 hectares of land to 266 households existing in Pandamatenga was made as a condition to obtaining the AfDB loan, as Kgosi Rebeccah Banika claimed and further that it was unlawful to renege from the undertaking without due cause. The Lands Tribunal ordered the Chobe Land Board to allocate the reserved 2500 hectares of land as initially intended to benefit the 266 households in Pandamatenga in 2008.
Case in the High Court
Subsequently, the Chobe Land Board expressed discontent with the Lands Tribunal’s decision and appealed to the High Court. Among their arguments, they asserted that no legitimate expectation had been created on the part of Kgosi Rebeccah Banika that 2500 hectares of land would be reserved for use by members of her community. The Chobe Land Board further argued that there was no specific document alluding to an undertaking that allegedly made that 2500 hectares of land would be reserved for use by members of Kgosi Rebeccah Banika’s community. Additionally, the Chobe Land Board contended that Kgosi Rebeccah Banika did not have locus standi because there was no resolution by community members authorising her to appeal to the Lands Tribunal.
In her response, Kgosi Rebeccah Banika argued that the decision of the Lands Tribunal was valid because the Land Board failed to challenge her claim. Not only did the Chobe Land Board fail to call witnesses to contradict Kgosi Rebeccah Banika and her witness’s assertion, but it was unable to file a written submission at the conclusion of the matter. Kgosi Rebeccah Banika emphasised that overwhelming evidence on record established that an undertaking was made to allocate 2500 hectares of agricultural land to Kgosi Rebeccah Banika ‘s community, which land was identified, demarcated, bebushed and serviced for the use by Kgosi Rebeccah Banika ‘s community.
Regarding the claim that Kgosi Rebeccah Banika did not have locus standi, Kgosi Rebeccah Banika argued that this issue was just an afterthought as it was never an issue before the Lands Tribunal and was also not part of Chobe Land Board’s case before the Lands Tribunal.
Decision of the High Court
On 25 March 2025, the High Court delivered a judgment dismissing the Chobe Land Board’s appeal. It confirmed the Land Tribunal’s decision that there was a straightforward undertaking that the 2500 hectares of land that the Government of Botswana proceeded to debush were reserved for members of Kgosi Rebeccah Banika ‘s community.
Regarding the issues of locus standi, which the Chobe Land Board claimed Kgosi Rebeccah Banika did not have due to the absence of resolution from his community to appeal to the Lands Tribunal, the High Court, per Sechele J, held that Kgosi Rebeccah Banika is the Chief of Pandamatenga village as such she had a direct and substantial interest in the matter because it concerned the welfare of her subject. The Court determined that Kgosi Rebeccah Banika appeared as nominee officio in the proceeding, and consequently, the requisite locus standi just like Kgosi Mosadi Sebeko had in the case of Kgosi Mosadi Seboko and another v The Attorney General and another, Case No. HAHGB-000819-19 . The High Court emphasised,” The Setswana adage that a chief is a Chief because of his people finds application in these circumstances”.
The Southern Africa Litigation Centre and Botswana Khwedom support Kgosi Rebeccah Banika, with Tshekiso Ditiro & Jani Legal Practice are providing legal representation.
Judgments
25 March 2025 – High Court judgment
30 October 2023 – Land tribunal judgment
News Releases
31 March 2025 – Botswana Court rules Shua Khwe community is entitled to land as a condition for AfDB loan.
