17 Mar 2015

Scores of Bakwena tribesmen who recently came to hear the land appeal case pertaining to one, Clement Ephraim Kgosiemang, before Gaborone Land Tribunal were left disappointed when it could not proceed as scheduled.

Mr Kgosiemang, commonly known as Shialala, had taken both the Kweneng Land Board (KLB) and Kweneng District Council (KDC) to court after the former had ruled that a certain cemetery piece of land at Magokotswane ward in Molepolole that he had fenced did not belong to him but KDC.

KLB arrived at the decision on August 25, 2014 after hearing the two warring parties’ submissions. The KDC on behalf of Magokotswane Village Development Committee (VDC) had approached KLB for recourse after Mr Kgosiemang, without the consent of the residents, allegedly fenced the Ratlhomelang cemetery that was allocated to the VDC in 1982.

At former Ratlhomelang headman and a resident in the ward were said to be the only people who were buried in the disputed area before it was fenced by Mr Kgosiemang.

The KLB ruling read; “That Clement Ephraim Kgosiemang does not have any land rights nor conferred land rights where KDC has been allocated a cemetery plot. Clement Ephraim Kgosiemang is ordered to remove the fence or any other developments he may have effected on the cemetery plot within 30 days at his own expenses.”

However, when the case was called for hearing before Gaborone Land Tribunal president, Ms Sampa Kaisara, Mr Kgosiemang was not present as he had written to the tribunal indicating that he will not make it because he would be appearing before the High Court on the same date.

In view of this, Ms Kaisara cajoled the two attorneys representing KLB and KDC as to what should be the way forward of which they both held the best proposition was to postpone the matter as they could not argue when the other party was not in attendance, more so that he had communicated with the court.

Nevertheless, in-house attorney for KDC, Mr Yamikani Patson registered concern that Mr Kgosiemang was present when the court date was suggested and as such he should not have agreed to schedule his High Court appearance on the same date. He said while he believed that his appearance before the High Court was equally important, Land Tribunal sittings should also be respected.

The same opinion was shared by his KLB counterpart, Mr Alfred Baikuedi who was in attendance with KLB chairman, Mr Moemedi Babitseng.

Meanwhile, in her ruling, Gaborone Land Tribunal president, Ms Kaisara agreed to postpone the matter to another date, which will be communicated to the parties in due course. She also acceded to the request made by Mr Patson that the next sitting should be in Molepolole as the case was of interest to members of community, as they would like to come and hear it in large numbers.

Grounds of appeal for Mr Kgosiemang were that KLB erred in law and in fact when it held that the appellant did not have any land rights nor conferred land rights on the property that was the subject of dispute. He also said the respondent (KLB) erred in law and in fact when it held that KDC was properly allocated the plot in dispute for use as a cemetery when there was no evidence to that effect.

Mr Kgosiemang, through his court papers, argued that KLB erroneously made an order compelling the appellant to remove the fence or other developments he may have effected on the property that was the subject of dispute.

“This was an implied cancellation of the appellant’s rights over the property, comprising both Customary and Common Law Rights, on the area represented on various sketch plans presented to the KLB during the hearing. Such rights were acquired by the appellant through cession to him by Kgopolo Thipe and Gaetsiwe Botlhoko,” he wrote.

Mr Kgosiemang further submitted that KLB erred in law in making an adverse decision against the appellant without stipulating the reasons therefor in circumstances when KLB had been presented with ample material and evidence from which to make a decision favourable to the appellant.

Another point was that KLB erred in law and in fact when it held that the KDC has rights over the property in dispute when the latter had not complied with requirements of both the Tribal Land Act and the Town and Country Planning Act in that no allocation made in favour of the KDC, and if so, that any land use plan therefor ever approved by the Minister nor gazette as required by the law. ENDS