12 Dec 2022

 The Court of Appeal (CoA) has directed that Mr Pitseng Gaoberekwe should be buried outside Central Kalahari Game Reserve (CKGR) within seven days.

The ruling followed the family’s appeal of the High Court decision, which had ruled that Mr Gaoberekwe, who died December 12 last year, should be buried outside the reserve.

“The appellant is directed to bury the deceased’s body either in New Xade where the deceased was a resident or any other place of his choice outside the CKGR and in a place with designated cemetery within seven days from this decision,” Justice Mercy Garekwe declared today, December 12.

Justice Garekwe, who said her decision concurred with that of Justices Singh Walia and Leatile Dambe, stated that the appellant Mr Lesiame Pitseng, who is the deceased’s son, had failed to establish any right to bury the deceased in the reserve.

On whether the deceased had any other legal right to be buried in the reserve, Justice Garekwe said whatever rights individuals had, such should fall within the dictates of the law and in the present case, the Wildlife Conservation and National Parks Act and the Public Health Act were key.

“As things stand and in terms of the existing legislation, the deceased has no right to be buried with the CKGR,” she stated.

Such right, she said, could could have been based on the Sesana judgment should the deceased have been a party thereto , adding he was not or the appellant had failed to prove on a balance of probabilities that he was.

Justice Garekwe said it had been argued vehemently against the council’s contention that the deceased was a resident of New Xade at the time of his passing.

She said the family contended that the deceased was only in New Xade for medical reasons.

However, Justice Garekwe said such deliberations would not take the deceased case any further as the court had decided that he was not applicant in the Sesana case and not entitled to derive any benefit from the Sesana judgement.

Furthermore, she said there was evidence pointing to him having relocated to New Xade at some point before he died and was declared a New Xade permanent destitute in 2016 and in May 2017 he applied for a residential plot.

At the time of such application, she said one Mr Lobatse Beslag wrote a letter to confirm that the deceased was a New Xade resident since 1997 and the deceased was granted residential plot in April 2018. He was later approved for priority housing and subsequently built a house.

“In my judgement, the proven facts point to the relocation of the deceased to New Xade and as such, he was a permanent resident of New Xade at the time of his passing.”

On another point made by the appellant that the council was engaged in discriminatory practices as some residents of GKCR were buried in the reserve without council seeking to prevent them, even though some were not part of the Sesana case, Justice Garekwe said the council was excising its discretion and it would be outside the mandate of the court to place itself in the shoes of the council. BOPA