23 May 2021

High Court judges, Justices Michael Mothobi, Mokwadi Gabanagae, and Gabriel Komboni on Friday made a ruling that the 2000-hectare Forest Hill 9-KO farm at Kgale on the outskirts of Gaborone is legally vested in the Balete tribe.

The court dismissed the application by the Malete Land Board who had sought an order directing the Registrar of Deeds to cancel the Forest Hill Farm 9-KO deed of transfer accorded to Balete.

The land board had also asked the court to instruct Balete Paramount Chief, Kgosi Mosadi Seboko and the Gamalete Development Trust to handover the deed of transfer within seven days, a plea also rejected by the court.

Further, the land board argued that the matter of ownership of the land had been settled in by a ruling on the Quarries of Botswana versus Gamalete Development Trust case in 2010, where the Court of Appeal (overruling an earlier High Court decision that the land belongs to the tribe), decided that the property belongs to the land board.

They wanted the court to use the res judicata legal doctrine, which states that a matter that has previously been settled by a competent court of law should not be raised again.

As such, the land board desired that their ownership of the farm should not come under dispute, but that the court should instead instruct the transfer of the title deed.

Countering this, the Balete had presented the argument that they were the legal owners of the land they purchased in 1925, and if there had been any transfer of land to the land board without compensation it should be declared an unconstitutional contradiction to sections 3 and 8 of the Constitution of Botswana.

It had been an indisputable fact before the court that in 1925 the Balete raised 3000 pounds  which was used by their then Paramount Chief, Kgosi Seboko Mokgosi, who purchased the property from one Aaron Siew, an act officially recognised by the Bechuanaland Protectorate administration and legally sanctioned at Mahikeng.

After independence, the government enacted the Tribal Land Act, which introduced land boards as the overseers of tribal land on behalf of citizens of Botswana as a whole, instead of the Dikgosi who had previously held tribal land in trust for their particular tribes.

While Forest Hill was initially excluded from this, having been freehold property purchased separately, in 1973, the then Minister of Local Government and Lands, the late Mr Englishman Kgabo presented an amendment to Section 7 of the Tribal Territories Act to Parliament incorporating the Forest Hill farm under the tribal land administered by land boards. 

In delivering the judgment, Justice Komboni said the court could not apply the res judicata doctrine, since the Quarries of Botswana versus Gamalete Development Trust case was not a dispute between the current parties.

He said in that case, the land board was only enjoined at the tail end of the case, during appeal, and had argued then under oath that the farm had always belonged to the tribe.

Justice Komboni said the land board claim for the transfer of title deed had been premised on the Tribal Territories Act, Tribal Land Act and the 2010 ruling in the previous case.

While Justice Komboni said the 1973 amendment to the Tribal Territories Act placed the land under the jurisdiction of the Land Board, in practice Forest Hill continued being under direct management of the tribe and government kept on negotiating purchase of parts of the property with the tribe. Also, he said the 2010 Court of Appeal ruling made a misinterpretation, during the Quarries of Botswana versus Gamalete Development Trust case, by not noting that the 1973 amendment presented a constitutional challenge of depriving the Balete of their land contrary to sections 3 and 8 of the constitution, as there had not been compensation.

The Acquisition of Properties Act also stipulates that property shall not be compulsorily acquired except under extenuating conditions such as it being necessary or expedient for development, in the interest of public health, town planning, for the development of mineral resources or provision is made by law and there is compensation.

Complementing his counterpart, Justice Mothobi added that Kgosi Seboko Mokgosi had bought the land as a trustee on behalf of the tribe in 1925 and that Kgosi Mosadi Seboko as one of his successors in office has the right to continue holding the title deed in trust for the Balete.

While land boards also administer land on behalf of the public, they do so for citizens of Botswana as a whole, not particular tribes, and they could not acquire freehold property held in trust for the Balete without compensation.

The court arrived at the conclusion that the Forest Hill farm does not vest in the Malete Land Board and that the Balete tribe had been unconstitutionally deprived of its property.

The Land Board application was dismissed with costs, and the Balete counter application upheld. the court further ruled that  Section 7 (2) of the Tribal Territories Act is inconsistent with Section 8 of the Constitution; and that Forest Hill vests in the Bamalete. Ends