Africa-Press – Botswana. The Balete tribe has won their case of ownership of Farm Forest Hill 9-KO against Attorney General and Registrar of Deeds of Botswana, with four judges ruling in their favour.
Justices Tebogo Tau, Isaac Lesetedi, Frederik Brand and Singh Walia of the Court of Appeal ruled in favour of the tribe while Justice Mercy Garekwe dissented.
Delivering the Judgment before a fully packed court yesterday, Judge President of the Court of Appeal, Justice Tau said the appeal by government against a High Court decision, which had ruled for the tribe, should fail.
She said the farm in question was not purchased from the tribe, but rather acquired by the land board through an Act of Parliament without consent of the tribe.
“That in itself gave rise to compulsory acquisition.
Given that scenario, the High Court was correct in holding that the legislative scheme was unconstitutional for permitting the compulsory acquisition of the tribe’s farm in violation of the protections of the right to property enshrined under Section 8 of the Constitution,” she said.
As such, she said the High Court did not err in its decision for striking out the 1973 amendment to Section 7 of the Tribal Territories Act as that amendment brought about an unconstitutional deprivation of property.
Justice Tau said Section 3 (c) of the Constitution entrenches the freedom from deprivation of property without compensation, adding that Section 8 prohibits compulsory acquisition unless certain conditions are met.
For his part, Justice Lesetedi said he agreed with the outcome though through a different approach, adding that the constitutionality of the legislative scheme, which deprived the tribe of land, raised factual and legal issues, as to whether there was consent.
Justice Lesetedi said there were no records of a meeting consenting to incorporate the farm into the tribal land.
He said the tribe at all times had been dealing with the land as owners and had even entered into transactions for some of part of the land with the government among others.
“In my view there was no consent,” he said, adding that the acquisition of the farm was unconstitutional and breached Section 8 of the Constitution.
In her dissenting judgment, Justice Garekwe said there had not been any compulsory acquisition of farm Forest Hill contrary to the findings of the High Court, adding that the elements of compulsory acquisition does not exist in the amendment of Section 7 of the Tribal Territories Act.
In fact, she said the amendment was informed by the tribe’s desire to have their freehold property tribalised and incorporated into the Balete Tribal Territory.
Justice Garekwe said neither the government nor it’s agencies sought to acquire the farm.
She said the Malete Land Board when it mooted the issue of incorporation, was standing in the shoes of the tribe as the tribe’s agent and not as a statutory body in the performance of its statutory functions and mandate.
“The court a quo therefore got the sequence wrong. The tribe mooted and agreed to the tribalisation of Forest Hill and presented their decision to the district commission,” she stated.
Justice Garekwe further said the issue eventually reached Parliament, adding that following all the legislative requirements of making laws, parliament in endorsing the tribe’s wishes promulgated the amendments.
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