What does February 17th hold for Balete
South African legal gurus - Geoff Budlender SC and Advocate Mitchell De Beer - Counsels for the Balete tribe, will appear before a full bench of the Court of Appeal next Tuesday to defend their client’s bold position - “the Land is ours”.
The two will appear together with instructing attorneys, Oteng Motlhala, Tshiamo Rantau and Kgotso Botlhole who volunteered their services free of charge (pro bono) to the tribe since the start of the marathon case.
The appellant in the case referenced CACGB 153-21 is the Attorney General, who faces Balete Kgosikgolo, Kgosi Mosadi Seboko and two others –and is represented by Advocate Sydney Pilane appearing with state Attorney, Otlaadisa Kwape.
This appeal concerns the ownership of the remaining extent of Farm Forest Hill 9-K0 (the “Farm”). In 1925, the Ba-Ga-Malete tribe purchased the farm using its own funds, to address a shortage of land for grazing purposes.
The Deed of Transfer shows that the farm was transferred to Chief Seboko Mokgosi “for and on behalf of” the tribe. Since its acquisition, the tribe and its members have exercised control over the Farm, and allocated and used the land in accordance with their custom.
Before the High Court, the third appellant, the Land Board had sought an order directing the second appellant, the Registrar to cancel the Deed of Transfer in favour of the tribe in respect of the Farm.
The Land Board contended that various provisions of the Tribal Land Act (Cap 32:02) and the Tribal Territories Act (Cap 32:03) and a subsequent amendment vested it with ownership of the Farm.
It relied on a judgment of the Court of Appeal – Quarries of Botswana – which, it contended, held that the Tribe was divested of the Farm. However, before the Quarries of Botswana judgment, the Land Board never took the view that ownership of the Farm vested in it. In fact, it argued to the contrary in that case.
Leading the bench is CoA president, Justice Tebogo Tau together with Justices Isaac Lesetedi, Brand, Walia and Baaitsi Elizabeth Nkabinde who will have to say whether they agree with the ruling of High Court Justices, Gabriel Komboni, Michael Mothobi and Gabanagae who dismissed the Malete Land Board’s application.
The trio had found that the Farm did not “lawfully vest” in the Board, and that the tribe had been unconstitutionally deprived of its ownership in the farm by the legislative scheme. The High Court however did not address the second leg of the tribe’s constitutional challenge, which implicated the right to equality.
As a precursor, the prayerful Balete who remain hopeful that the CoA will concur with the high court position and rest this matter has decided to release the tension tomorrow (Saturday) by hosting a cultural festival at the main Kgotla. Originally the event was held on annual basis, but it was stopped by the outbreak of COVID-19.
As if this was meant to appease them, while Balete were still putting their resources together to ensure that the appeal which caused so much friction between the tribe and the government, manna fell from heaven in the form of a P30 000 donation from the Ministry of Youth Empowerment, Sport and Culture Development as part of its contribution for the annual event.
Kgosi Simane Seboko confirmed the contribution, and further explained that they have also approached the corporate world for additional sponsorship.
At the CoA on Tuesday, the Counsel for the Balete tribe will inform the Justices that there are two alternative forms of relief sought by the tribe in these proceedings.
First, the tribe submits that when properly interpreted, the legislative scheme and its effect have not deprived the tribe of ownership of the Farm or vested it in the Board. If the CoA agrees, then paragraph (b) of the High Court’s order will fall away, as the legislative scheme would then be constitutional.
Second, if the CoA disagrees with the tribe’s submissions in regard to the interpretation of the legislative scheme, then the scheme is constitutionally invalid. This is because it is inconsistent with both section 8 and section 15 of the Constitution. They argue that this rule applies in the present case.
Should the tribe be successful, it is entitled to its costs. Due to the complexity of the matter and the importance and nature of the issues involved, the costs of two counsels are justified, and should the Court find against the tribe, each party should pay its own costs.
On the other hand, the Attorney-General and Registrar appeal against the High Court’s judgment, as does the Land Board. They contend that the constitutionality of the Farm’s acquisition was determined by this Court (CoA) in Quarries of Botswana and that the tribe is precluded from raising it in this case.
This contention is incorrect as the breach of the tribe’s right and consequentially the constitutionality of the legislative scheme, were never challenged before or considered by this court.
The Board also contends that the provisions of section 8(6) and 15(4) of the Constitution render the legislative scheme constitutional. The reliance on these clauses is however unsustainable, according to the tribe’s counsels.
The Tribe opposes the appeal and supports the judgment of the High Court on these issues.
The Tribe has cross-appealed against the high court’s order in so far as it failed to address the second leg of the constitutional challenge, which concerns the violation of equality rights by the legislative scheme.
This challenge was pertinently raised by the Tribe in its papers and ought to have been considered by the High Court. The Tribe states that the Attorney-General’s and Land Board’s appeal be dismissed, and requests that its cross-appeal be upheld should the Court disagree with the Tribe’s interpretation of the legislative scheme.
As a final preliminary matter, the tribe also notes that since the High Court handed down its judgment, the Tribal Land Act 1 of 2018 was brought into effect on 20 April 2022 (“new Tribal Land Act”).
They argue that notwithstanding the bringing into force of the new Act, the issues between the parties concerning “the proper interpretation of the old Act and its constitutionality still require this Court’s determination”.
This is because if the “State is correct and the now-repealed Act divested the Tribe of its property, then the Court is required to determine whether that was constitutional”.
All Court of Appeal judgements will be delivered on February 17th 2023.