Kweneng cemetery dispute reaches CoA
Mpho Mokwape | Monday August 28, 2023 06:00
The claimant at the centre of the dispute that has been ongoing since 2011, Clement Kgosiemang, wants the certificate issued by the Kweneng Land Board to Kweneng District Council (KDC) to be nullified as he believes that the land belongs to him.
Kgosiemang’s approach of the CoA comes after he was dismissed by the Gaborone High Court in 2021. He approached the court seeking leave to appeal out of time. CoA judge Lakhvinder Singh Walia told Kgosiemang on Wednesday that despite the application not being opposed by the Board and Council he still needed to show reasonable grounds for leave to appeal.
“The application is a result of a judgement that was issued in 2021, a long time has passed without an appeal being noted, there has to be exceptional circumstances as to why the appeal be heard out of time,” he said. Kgosiemang had earlier tried to wiggle his way out explaining to the judge that the appeal was not opposed and that the defendants also filed their papers very late.
He ended up not saying much but noted that he stood by his filed papers. In his papers, reasons as to why he wants the certificate nullified was that the Board erred in law when it held that he did not have any land rights or conferred land rights on the property that was the subject of dispute. He explained that he has a certificate to prove that he was the rightful owner to the plot and that the defendants acquired their certificate after he raised concern as to why they were taking his plot.
Kgosiemang said the Land Board was wrong when it held that the KDC was properly allocated the plot in dispute for use as a cemetery when there was no evidence to that effect. Kgosiemang argued that the KLB erroneously made an order compelling the appellant to remove the fence or other developments he may have effected on the property that was the subject of dispute.
“This was an implied cancellation of the appellant’s rights over the property, comprising both Customary and Common Law Rights, on the area represented on various sketch plans presented to the KLB during the hearing. Such rights were acquired by the appellant through cession to him by Kgopolo Thipe and Gaetsiwe Botlhoko,” he said. Kgosiemang further submitted that the KLB erred in making an adverse decision against him without stipulating the reasons, in circumstances when the KLB had been presented with ample material and evidence from which to make a decision favourable to him. In his last argument he pointed out that the Board was totally wrong when it held that the council has rights over the property in dispute.
He said the latter had not complied with requirements of both the Tribal Land Act and the Town and Country Planning Act which accordingly stipulated that there was no allocation made in favour of KDC, and if so, that no land use plan was ever approved by the Minister nor gazetted as required by the law.
How the long dispute started
In 2011 Kgosiemang noticed that the land was active and upon enquiry heard that the land belonged to Village Development Committee (VDC) and he lodged a complaint against the Kweneng Land Board and council. According to his complaint, he claimed that the plot was a field, which he bought from Kgopolo Thipe around the 1980’s. At the time he made the claim, two people had already been buried in the plot giving rise to what came to be known as a cemetery dispute between the three parties. Following numerous consultations, the local VDC was forced to remove the fence on reasons that the piece of land was already in dispute. However, the victory of Kgosiemag was short-lived as the Board later ruled that the land belonged to the VDC without a doubt as it had belonged to the Board having issued provisional certificate on August 23, 1982. The verdict forced Kgosiemang to take the matter to the Land Tribunal as an appeal. The Land Board had ruled that: “Clement Ephraim Kgosiemang does not have any land rights nor conferred land rights where KDC has been allocated a cemetery plot.” Subsequently Kgosiemang was ordered to remove the fence or any other developments he may have effected on the cemetery plot within 30 days at his own expenses.” At the Tribunal, the case dragged through the years until in 2015 when the Gaborone Land tribunal issued a default judgement in Molepolole in favour of the defendants, the Land Board and Council. The matter was held at the Molepolole Magistrate Court as the case was of interest to members of the community who used to throng the court in large numbers. The default judgement was given after the complainant absented himself from court and his lawyers at the time also said they were no longer representing him. Meanwhile, the Land Board in its defence had said that the piece of land belonged to the KDC, which it had allocated some years ago. The council, representing Magokotswane (VDC) had approached the Board for recourse after Kgosiemang, without the consent of the residents, allegedly fenced the Ratlhomelang cemetery that was allocated to the VDC in August 1982. A former Ratlhomelang headman and a resident were the only people who were buried in the disputed area before it was fenced by Kgosiemang. Judgment has been reserved for September 8.