The Southern Africa Litigation Centre is working with the Botswana Khwedom Council to support the San and Bayei community in their effort to defend what they consider their lawful inheritance. This case revolves around Khuti ya ga Mathiba (Chief's Island) in the Moremi Game Reserve, located in Botswana's Northwest District.
Background
The dispute over Chief's Island began on 10 September 2019, when Principal Chief Letsholathebe Moremi, acting as the 11th respondent, applied to the Tawana Land Board to register the land based on a claim of inheritance. Several members of the San and Bayei communities lodged objections to Moremi's application, arguing that they are the original inhabitants of the land and were removed and dispossessed between 1963 and 1980 to make way for the establishment of the Moremi Game Reserve. After their removal from Chief's Island, they were resettled outside the Moremi Game Reserve in Khwai, Ditshiping, and Xaxaba settlements. They further contended that they are the rightful heirs of Chief's Island and, if the land is now available for inheritance, they should inherit it, as they were dispossessed of it and their ancestors are buried there. Additionally, they disputed the 11th respondent's allocation of Chief's Island, arguing that his parents or ancestors never inhabited the land, which was historically occupied.
On 11 January 2021, the Tawana Land Board rejected the objections from the San and Bayei communities, stating that they lacked merit. However, the San and Bayei communities misunderstood this rejection, believing that Moremi's application had been approved even though it was still under review. The San and Bayei communities then appealed to the Land Tribunal, arguing that the Tawana Land Board had no jurisdiction to handle an inheritance dispute. On 26 April 2021, a settlement was reached, requiring the Tawana Land Board to communicate its decision on Moremi's application within 14 days of making it.
On 12 November 2021, the Tawana Land Board officially granted Moremi's application. It allocated him three newly identified sites within the Moremi Game Reserve, dismissing the objections from the San and Bayei communities again for lacking merit.
Case before the Land tribunal
In response, the San and Bayei communities lodged another appeal with the Land Tribunal, raising several significant points:
- The Tawana Land Board lacked jurisdiction over inheritance disputes.
- The Board failed to provide sufficient reasons for dismissing the objections.
- The Tawana Land board failed to consider the legitimate order of succession or the lineage to Chief's Island.
- The decision was based on incorrect facts, disinheriting other community members.
- The decision violated constitutional rights to equality and non-discrimination.
- It undermined the dignity and tribal identity of the San and Bayei communities.
In response, the Tawana Land Board and Chief Moremi have presented counterarguments in response to the claims made by the San and Bayei communities. They argue that the San and Bayei communities lack legal standing because they have not proven ownership of Chief's Island. They claim that none of the communities have provided evidence of title to the disputed land. Additionally, they argue that the communities were relocated as early as 1963, before the Constitution of Botswana was enacted in 1966. Therefore, they maintain that the rights of equality and non-discrimination, which the San and Bayei communities claim, did not exist at the time of the alleged relocation. Furthermore, they argue that some of the claims have exceeded the statutory limitation period, making them time barred. They also assert that the High Court, rather than the Land Tribunal, is the appropriate forum to adjudicate constitutional claims, emphasising the procedural aspects of the dispute.
On 23 September 2022, the Lands Tribunal delivered its ruling, affirming that the San and Bayei communities, specifically the 1St to 6th Respondents, possessed the necessary legal standing. However, the Tribunal also determined that it lacked jurisdiction to adjudicate constitutional and inheritance matters, prompting the referral of the case to the High Court for further consideration.
Case in the High Court
Subsequently, the Tawana Land Board expressed discontent with the Lands Tribunal's decision and proceeded to appeal to the High Court. Among their arguments, they asserted that the San and Bayei communities lacked standing in the matter due to their absence of title over Chief's Island and their failure to apply for its allocation with the Tawana Land Board. Additionally, they contended that the constitutional reliefs sought by the communities were non-existent at the time of their removal from Chief's Island and that the communities' rights to the island had expired due to prescription.
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Similarly, the San and Bayei communities contested specific aspects of the Lands Tribunal's decision and lodged an appeal with the High Court. Their appeal aimed to seek interpretation and determination of constitutional issues surrounding the dispute. In their appeal, the communities argued that the decision of the Lands Tribunal was invalid due to its lack of jurisdiction over inheritance disputes. They emphasised that the Lands Tribunal had no authority to adjudicate on matters of inheritance, making its decision invalid. Additionally, they contended that since the Lands Tribunal lacked jurisdiction over the inheritance matter, it could also not determine whether the Tawana Land Board had the authority to consider Chief Moremi's application to inherit Chief's Island.
Decision of the court
On 26th April 2024, the High Court issued a ruling dismissing the Tawana Land Board's appeal and overturning its decision to allocate Chief's Island to Chief Moremi.
