“There is nowhere the Land Board is empowered to adjudicate over inheritance disputes. It too does not have that jurisdiction,” Justice Maripe noted. In its earlier ruling, the Land Tribunal here had said it did not have the jurisdiction over inheritance disputes, and had advised the parties to consider approaching the High Court for resolution of the case. The Tribunal had also addressed the objectors’ locus standi and constitutional issues on the matter. Locus standi is the right or ability to bring legal action to a court of law, or to appear in court. The dispute was triggered by Kgosi Tawana Letsholathebe Moremi’s application of September 10, 2019 to Tawana Land Board (TLB) for Khuti ya ga Mathiba or Chief’s Island, which is located within Moremi Game Reserve. Kgosi Tawana’s application is based on a claim for inheritance. Following that, Council and other Basarwa and Bayei tribespeople lodged an objection to Tawana's application with the land board.
The objectors also laid claim to Chief’s Island, which they prefer to call by its original name of Tsaoboro, as their ancestral home. Tawana Land Board out-rightly rejected their objection claiming that “the reasons that have been brought before the board lack merits to sustain the objection”. But Khwedom Council and 10 others appealed to the Land Tribunal on the grounds that the TLB “did not have jurisdiction to determine what was essentially an inheritance dispute”. On April 26, 2021 the parties (TLB and the objectors) agreed to a settlement that was made an order of court whose terms included that the objectors withdrew their appeal on the condition that TLB would communicate to them a determination on Kgosi Tawana’s application within 14 days of making the decision. On November 12, 2021 the objectors received a letter, dated October 11, 2021 on TLB’s resolution to the effect that the Board resolved to discuss Khwedom Council’s objection to Kgosi Tawana Letsholathebe Moremi’s application for Chief’s Island on the following reasons: “The reasons that have been brought before the Board lack merit to sustain the objection.”
The land board therefore granted Tawana’s application and resolved “to allocate him one of the three identified sites in the Moremi Game Reserve”. In their subsequent appeal to the Land Tribunal, Khwedom Council and other objectors argued that the land board lacked jurisdiction to determine what was essentially an inheritance dispute. They further argued that the land board fundamentally erred in law and in fact in falling to give reasons or state the ground for which it made a finding that the objection lacked merit to sustain it. The objectors also argued that the land board erred in law and in fact in holding that the objection of succession or the lineage with regard to Tsaoboro/Chief’s Island; and that the whole decision that Kgosi Tawana is to inherit the Tsaoboro is unlawful in that it was not based on the correct facts, or the extent that it disinherits the objectors and other community members not before the tribunal, as members of the Basarwa and Bayeyi communities. The TLB decision violates their rights to equality and non-discrimination as provided for in the Constitution of Botswana; and that it undermines and infringes the dignity of members of the Basarwa and Bayeyi communities in their tribal identity as heirs to their own land. In their response before the Land Tribunal, the land board and Kgosi Tawana raised four point in limine.
They argued that the objectors lacked locus standi in the matter and that they failed to prove that they had title over the pieces of land in question or that they applied for it. They also argued that objectors relocated from the area in 1963. And that the Constitution of Botswana having come into force on September 30, 1966, the relief being claimed did not exist at that time, and therefore they are not suited. They pointed out that alleged constitutional breaches are a purview of the High Court and not the Tribunal. In its ruling, the Land Tribunal dismissed the land board’s locus standi argument noting that the objectors before it had the necessary locus standi in the proceedings. It also agreed that it lacked jurisdiction to adjudicate over the constitutional reliefs sought and the inheritance rights, advising that these can be referred to the High Court. The Tawana Land Board was dissatisfied with the Land Tribunal decision and filed the appeal with the High Court on the grounds that the latter had failed in all its determinations. Khwedom Council and others were also dissatisfied and appealed to the High Court, though it agreed with the Tribunal ruling of its locus standi.
They argued that the tribunal had jurisdiction to set aside the decision of the land board on the basis that it had no jurisdiction to determine an inheritance dispute; and that it prematurely referred the matter to the High Court. The High Court ruled that the objectors’ complaint about premature referral, as well as their cross appeal were not properly motivated and were dismissed. The court also set aside the decision of the Land Board. Justice Maripe pointed out that “a person ought to have a legitimate and/or substantial interest on the matter at hand to found locus standi”. He further noted that the locus standi addressed on the Tribal Land Regulations is not only that of an applicant for the grant of customary rights to tribal land, but also that of ‘any interested person’ such as the objectors. Dismissing the Land Board’s objection to Khwedom and others’ locus standi, Justice Maripe said it “is not principled and cannot be allowed to stand.”
“It cannot be acceptable for the Land Board to accept the locus standi of the 11th respondent (Kgosi Tawana) in his application and question that of the 1st to 10th respondents when their positions are based on the same claim to inheritance and when neither sought a decision of the Land Board through an executor nor representative of the estate. The Land Board cannot approbate and reprobate.” In that April 26, 2024 ruling, Justice Maripe concluded that each party had partial success and deemed it fair that each should bear their own costs. He, however, noted that parties are at liberty to institute proceedings in any competent forum as they may be advised, “with notice to the other.” Botswana Khwedom Council was enjoined in its objections by Odumetse Kata, Botsheditswe Saxhago, Sethomo Motlaleselelo, Dimbo Boikaego, Letshogile Saxhago, Kethusegile Odumetse, Cisco Majeraletio, and Keneetsweng Mange.
