25 Jan 2023

The Court of Appeal is set to determine whether Balete have previously consented to the transfer of Farm Forest Hill 9KO and Rankoromane from freehold to tribal land.

The ruling, scheduled for February 17, follows arguments put before a full bench of the CoA on Tuesday by the contending parties, the Attorney General alongside the Registrar of Deeds against the Balete tribe regarding the transfer of the two pieces of land.

The state lead counsel, Advocate Dr Sidney Pilane stated that the tribe had agreed to the land being transferred from freehold to tribal land as envisaged in the Tribal Territories Act of 1973, which sought to incorporate the farms into the tribal land.

“It was not appropriation or acquisition, but a transfer consented by the tribe,” he stated.

He said the then Balete Kgosi had consented to the transfer as he was a member of Ntlo Ya Dikgosi and had never objected to the bill when it was presented and debated at Ntlo Ya Dikgosi.

He said records from Ntlo Ya Dikgosi showed that all members of the house unanimously consented to the bill.

He further said Balete Kgosi was chairperson of Malete Land Board and there were records that showed that although the Kgosi was against the transfer, he acceded to the pressure from the tribe.

Asked by the court to clarify why the state purchased a piece of land at Farm Forest Hill in 1987 for the expansion of Gaborone Dam, Dr Pilane told the court that it was due to ‘incompetency on the side of the Attorney General’.

“The Attorney General had put everyone into confusion through their misinterpretation,” Dr Pilane said, adding that even the Malete Land Board was persuaded to believe that the land belonged to the tribe.

The Balete lead attorney, Advocate Geoff Budlender disputed the state version, saying the tribe bought the land in 1925 through tribesman contributions and they never consented to the land being converted into tribal land.

He accused the state of relying on speculations and selective historical records in an attempt to influence court decisions.

Advocate Budlender clarified that it was not possible for the kgosi to have made the decision alone and added that there was no record before the court to show that the tribe had ever been consulted.

On the contrary, he said Kgosi Mosadi and other Balete elders who were adults then, had deposed affidavit before the court that no consultative meeting took place.

“The owner of the land is the tribe, it is common cause that the tribe had to make the decision,” he added.

He said the Tribal Territories Act of 1973 was unconstitutional as it deprived the tribe of its right to own land and added that the land was never transferred to the hands of the state.

Advocate Budlender said Farm Forest Hill and Rankoromane were under protection as freehold land just like other freehold land pieces in the country.

The court case emanates from the CoA’s past decision, which had stated that Farm Forest Hill belonged to the state. 

This was in a case where Quarries of Botswana had wanted the court to declare unlawful, the decision by Gamalete Development Trust to prevent them from passing through the farm.

The tribe, through Gamalete Development Trust and their kgosi, declined to hand over the land and challenged the constitutionality of the Tribal Territories Act of 1973, saying it deprived them of their right to ownership of the land, which they said was rightfully theirs. ENDS