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Kwape v Ngwaketse Land Board and Another (Civil Appeal No. 35 of 202) [2003] BWCA 5; [2005] 2 B.L.R. 70 (CA) (1 January 2003)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
COURT OF APPEAL CIVIL APPEAL NO. 35 OF 2002 HIGH COURT MISCELLANEOUS CIVIL APPLICATION NO. 490 OF 1998
In the matter between
THOMAS MHENYI KWAPE      APPELLANT
Versus
NGWAKETSE LAND BOARD     1ST RESPONDENT
ATTORNEY-GENERAL (representing Ministry
of Local Government Lands and Housing)   2ND RESPONDENT
Mr. B. D. Leburu with him Ms. F. Mbuso for the appellant Mr. T. Rubadiri for the respondents
JUDGMENT
CORAM: K. R. A. KORSAH J.A. C. PLEWMAN J.A. F. H. GROSSKOPF J.A.
KORSAH J.A.
This is an appeal from the decision of the High Court dated 11 January
2002, dismissing the appellant's application for the orders sought by
him. The orders sought by the appellant from the court were:-
"(a) That the 1st respondent be and is hereby ordered and/or directed to discontinue and/or withdraw its subdivision of the land occupied by applicant situate at Garajakopo.
(b) That the 1st respondent be ordered and/or directed to issue to applicant and/or convert into a Ranch land presently occupied by applicant, under certificate of Customary Land Grant of the 2nd May 1977.

(c)    

That the 1st respondent be ordered to grant applicant lease hold over Farm Ranch JN 14 (sic).
 (d)     Orders for costs and alternative reliefs.
The history of the land the subject of the application is as follows:-
In 1973 the appellant applied to the 1st respondent (the Land Board) for a
borehole site. On 2nd May 1977 the Land Board issued a certificate of
Customary Land Grant (the Grant) pursuant to section 16 of the Tribal
Land Act [Cap 32:02] (the Act). Annexure "A" to the founding affidavit is
the Grant. It is clear from a scrutiny of Annexure "A" that although it is
titled "certificate of Customary Land Grant" its purpose, as stated at the
foot of the certificate was to grant to the appellant the right to drill a
borehole on the land. The certificate reads:-
"This is subject to the undermentioned condition THE SITE IS FOR THE PURPOSE OF A BOREHOLE"
This view of the matter is fortified by the fact that the grant does not
delineate the boundaries of the grant. It goes without saying that
without the delineation of a plot of land there can be no grant of land per
se.
It is true that the grant recites that the appellant "has been granted for BOREHOLE purposes the use of an area of land estimated at approximately 70 miles ... acres in extent and situated at Garajakopo." It was agreed by Mr. Leburu for the applicant in the court below that the insertion of the words "70 MILES" in the section 16 form was an error and led to nothing. Not even the spot from whence the 70 miles
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commenced was stipulated. There was, however, provision in the grant
identifying certain natural features in relation to the land upon which the
borehole was to be sunk by giving descriptive boundaries of the land
granted. This reads:-
"NEIGHBOURING BOREHOLES: K. N. GROBLER, KOTZEE, AND MOSUGELO 5 MILES APART"
The learned trial Judge expressed the view, and I agree with him, that this seems to imply that the applicant was restricted from sinking his borehole any closer than 5 miles to his immediate three neighbours. Without a fourth landmark to enclose a particular area of land (save that the appellant was granted the right to drill a borehole at Garajakopo not less than 5 miles from his said neighbours) the grant, without a sketch plan, does not establish that the appellant was granted a right to a particular piece or parcel of land.
It was contended on behalf of the appellant that the Grant was a "land
grant" in terms of sections 13 and 16 of the Act. But land in the Act is
defined as follows:-
"land means land in a tribal area and subject to the provisions of the Mines and Minerals Act, the Water Act and the Mineral Rights in Tribal Territories Act includes any interest in land and anything which is either artificially or naturally attached to the land and which, by operation of the common law, accedes to it", (emphasis added)
The learned trial Judge held, rightly in my view, that a borehole represents an "interest" in land for which the 1st respondent is competent to grant permission to sink, without the inclusion of land, in terms of
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section 16 of the Act. It is clear from non-compliance with Regulation 10
of the Tribal Land Regulations, promulgated under section 37 of the Act,
that neither the Land Board nor the appellant intended that actual land
be granted. The Regulation reads:-
"10 (1)  With the object of avoiding disputes arising from
imprecise or conflicting grants, it shall be the duty of a land board in making a grant of customary rights in respect of a piece of land which is not defined by a diagram to describe it in the certificate of grant by reference to permanent and ascertainable boundary points of boundaries whenever possible, and whenever possible to attach a sketch plan.
(2)    
For the purposes of fixing boundary points not otherwise readily ascertainable it shall be the duty of the grantee within six weeks of the issue to him of a certificate of grant to demarcate the land in respect of which customary rights have been granted to him in such a manner as the land board may direct.
(3)    
Any grantee who fails to demarcate land in respect of which customary rights have been granted to him in the manner directed by the land board within the period prescribed in subregulation (2) or who fails to maintain any mark which has been established to demarcate such land shall forfeit his rights to such land, and any person who without reasonable excuse damages, destroys, moves or otherwise interferes with any mark established by or under the direction of a land board to demarcate land, shall be guilty of an offence and liable to a fine not exceeding P50 or to imprisonment for a term not exceeding three months, or to both";
Thus what the appellant obtained by the Grant was no more than an interest in land and not the absolute right to any piece or parcel of land.
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The trial court found that the appellant's borehole is situated on a large tract of communal grazing land in the Southern District. Whether it is situated in the South-Eastern corner or not is of no consequence for the moment. 'To the west, the land runs to the Southern District Perimeter fence. To the north and south it is fenced by virtue of the perimeter fences of adjacent ranches. The eastern side is open. The land is sometimes referred to in the papers as a cul-de-sac and it is easy to visualize it being converted into a self-contained ranch by fencing the open side so that it is harmonious with the two ranches to the north and south."
The appellant made an application to the 1st respondent to fence the
open side of the cul-de-sac and that is when the problems giving rise to
this action commenced. In July 1975, a national policy in respect of
tribal grazing land was introduced by the Government to change the
practices regarding the use of grazing land with a view to stop the
growing danger that grazing land would be destroyed by uncontrolled use
of communal grazing areas by ever growing numbers of animals. This
policy is contained in Government Paper No. 2 of 1975 which was
attached to the appellant's founding affidavit and marked B.l. The
parts relevant to this matter were cited in the judgment of the learned
trial Judge as being paragraph 20 to 24 inclusive which read:-
"20. The basic objectives of changing the present system are:
a) To make grazing control, better range management and increased productivity
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possible. The improved management system must start with fenced areas and land over which exclusive rights are recognized. Therefore under certain conditions, groups and individuals must be granted exclusive rights to land.
b) To safeguard the interests of those who own only a few cattle or none at all.
21.      To meet both these aims, Government will encourage
Land Boards to divide the tribal grazing areas into
three zones - Commercial Farming Areas, Communal
Grazing Areas, and Reserved Areas. The terms of
tenure and the type of development permitted will be
different for each zone.
Commercial Farming Areas
22.    
In these areas, groups and individuals will be given exclusive rights to specific areas of grazing land. A defined number of hectares of land will be allocated, not simply the use of a borehole as is now the case. Ranch development will be encouraged, including fencing and piping of water.
23.    
Leases will be granted in Commercial Farming Areas, and land in these areas will cease to be held in the traditional way. Rents will be payable to the local authorities in return for the exclusive rights given in the lease.
24.    
Proposed rules for allocation and development in Commercial Farming Areas are set out in Part V. These areas are not meant only for large individual cattle owners. First priority will be to help groups of smaller owners to run commercial ranches. Preference will be given to such groups in making allocations."
In the application of the national policy the Southern District tribal area fell for attention under the District Officer (Lands), which is a division of the 1st respondent, responsible for, inter alia, the zoning and re-zoning of tribal land; in particular the conversion of tribal grazing areas to commercial farming areas.
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It is not disputed that in pursuance of the national policy guidelines a "Land Use Plan" for the Southern District was approved in 1977 and revised in 1981. Certain ranches were demarcated, zoned for commercial use and allocated.
In 1986 this plan was up-dated and the land subject of this matter fell within what became known as the First Development Area, the southern part of which was zoned as a "commercial investigation area." The learned trial Judge found that the recommendation in regard to the land subject of this matter was that it could become part of the commercial farming block once the boundary with the ranch to the south was redefined and the eastern side closed off.
It is, therefore, true that by 1986, the First Development Area, of which the land the subject of this matter forms a part, was proposed to be zoned or was zoned as a commercial farming area. The appellant concluded that he thereby obtained commercial farming rights to "his" land. The learned trial Judge, for reasons stated, held that the appellant did not have commercial farming rights in the land the subject matter of this action.
Firstly, as already stated the appellant's only right is to a borehole and not to the land itself. He has interest in and not the ownership of the land.
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Secondly, the learned trial Judge pointed out that even if it were conceded that the appellant had any rights, such were conferred as a result of a customary grant in terms of section 16 of the Act over communal grazing land. The appellant relies on this grant as the sole foundation of his actual presence on the land the subject of this matter. He averred at paragraph 9 of the founding affidavit that the Land Board zoned the Southern District Tribal Area, which includes Garajakopo area, as a commercial farming area in 1979, 1981 and 1982. In his replying affidavit (paragraph 4.2) the appellant contradicts his earlier assertion and contends that the area was commercial before the Land Board was established in 1970.
As the learned trial Judge observed, if the land the subject of this dispute were commercial before the Land Board was established then appellant's customary grant in terms of section 16 of the Act was ultra vires the power of the Land Board to grant it, and so he got nothing from the Board.
In paragraph 20.2 of his founding affidavit the appellant said:-
"Annexure 'E1-E3' which was a recommendation by Mr. Jansen, the District Officer (Lands) of the 1st respondent and which was tabled before the meeting of 3rd September 1986, confirmed my interest to have the land turned into a commercial ranch."
The above, read with the appellant's earlier contention that the Land
Board in 1979, 1981 and 1982 zoned the area commercial, was found
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by the learned trial Judge to furnish some indication of the true position of the parties as put forward by the 1st respondent.
The fact of the matter is that, the land, the subject matter of this dispute, was communal tribal grazing land when the appellant obtained this borehole grant in 1977 and remains such to this day. In the course of implementing the national policy, the Land Board zoned part of the Southern District Area, of which the land the subject matter of this dispute formed a part, for commercial farming. This does not mean that existing communal land was automatically converted to commercial farming land - such conversion would be impossible without allotment with boundaries. Zoning an area for commercial purposes cannot automatically confer commercial farming rights to existing occupiers of communal land, whether or not they occupy by Customary Land Grant.
The Government Policy Paper No. 2 of 1975, which the appellant attached to his founding affidavit as Exhibit "Bl", sets out "How land will be allocated in Commercial Areas" in paragraphs 41 to 48. First of all, it is obvious that applications must be made by interested parties to the Land Board. There is then a whole gamut of steps to be taken before allocations are made. It is obvious that there may be conflicting claims and the rules which are to be followed before the making of allocations are set out in the said paragraphs 41-48 of the said Policy Paper. The appellant must be taken to be aware of these rules since he attached the Policy Paper to his founding affidavit. It seems to me that the object of
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those rules was to establish transparency in the consideration of the applications and equity in the allocation of commercial plots. The rules by inviting applications from interested parties were meant to obviate favouritism and nepotism in the consideration and allocation of farms.
As explained above, the appellant was granted a right to drill a borehole at Garajakopo. He did not have a Customary Land Grant. He was not issued with a certificate in respect of any land at Garajakopo which he could turn into a commercial farm when the Southern District Area was zoned for commercial purposes. The land at Garajakopo, as earlier expressed, remained at all times communal tribal land and the appellant was not granted nor acquired exclusivity to its use.
It was explained in paragraph 15 of the 1st respondent's affidavit that, those farmers who were given the permission to fence off their land were those with Customary Land Grants, who were zoned commercial pursuant to the implementation of the Tribal Land Grazing Policy and those that had farms established prior to the Tribal Land Act. One of such farmers was Mr. Pickles, the owner of Pickles Farm, which farm existed long before the establishment of the 1st respondent. Others were those who, after the 1st respondent had advertised for applications for ranches to be lodged, made proper applications which were duly considered by the 1st respondent.
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The appellant, not having a Customary Land Grant could not be granted permission to fence off any defined area; and having been granted the right to drill a borehole only in 1977, could not claim to have been on the land prior to the establishment of the 1st respondent. He was, like all other farmers who had boreholes in the area, to allow due process by submitting an application and specifying his interest at the right time.
Paragraphs 20 and 21 of the 1st respondent's Answering Affidavit admit that the area in question was to be turned into a commercial farm by converting it into a ranch system, but as indicated this involves a process which includes, inter alia, the demarcation of land, advertising and inviting interested members of the public to apply. Unfortunately this process could not proceed as it was stopped by objections from the appellant and hence the present litigation.
The appellant also sought an order granting him a leasehold over Farm
Ranch JN 14. As the 1st respondent correctly indicated, a leasehold can
only be obtained once the process of converting the land and allocating it
has been finalized, and not before. The demarcation of the land is just
one step in the process of converting the land into a ranch system. The
1st respondent boldly asserts in paragraph 21 that:-
"In fact applicant, as he already had a borehole within the land, and as a matter of policy, was going to be given priority on consideration of the applications submitted."
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It is patent that the appellant has jumped the gun and that his application for the orders sought from the High Court was premature. The court cannot be faulted in holding that:-
"The land the subject matter of this suit remains communal grazing land until such time as a successful allocattee derives commercial farming rights after due process."
Accordingly:
 1.      The appeal is dismissed with costs.
2.     
For the avoidance of doubt, the order of the High Court that the 1st respondent is to re-publish an invitation to the public to tender for commercial ranches JN 14 A and JN 14 B in the Southern Ngwaketse area, still stands.
DELIVERED IN OPEN COURT THIS     DAY OF JANUARY 2003.
 K.R.A. KORSAH
DGE OF APPEAL
I AGREE
C. PLEWMAN JUDGE OF APPEAL
I AGREE
F. H. GROSSKOPF JUDGE OF APPEAL
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