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Kesebonye v Tlokweng Land Board and Others (Civil Appeal No. 18 of 202) [2003] BWCA 7 (1 January 2003)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Civil Appeal No. 18/2002 High Court Miscellaneous Application No.421/1997
In the matter between:
WILLIAM LEKGOA KESEBONYE         Appellant
and
TLOKWENG LAND BOARD      18T Respondent
PETER KESEBONYE  2nd Respondent
SPENCER KESEBONYE        3'd Respondent
Mr. A. W. Modimo for the Appellant
Mr T. Rubadiri for the Second and Third Respondents
JUDGMENT
CORAM: KORSAH J.A. PLEWMAN J.A. GROSSKOPF J.A.
GROSSKOPF JA;
The appellant is the first born son of the late Seitshiro Kesebonye Seitshiro (the deceased) who was married under customary law to Madingwana Gaborone (the first wife). The appellant's sister, Margaret Modise, was born of the same marriage. The deceased was divorced from his first wife in 1957. He later married Matilda Tamocha (the second wife) under the

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Common law. Two sons were born of this second marriage, the second respondent being the last born and the third respondent the first born. The deceased and his second wife were divorced in 1982 whereupon their joint estate was divided in accordance with customary law by Chief Linchwe II (the Chief) on 15 June 1982.
It is common cause that the immovable property of the joint estate consisted of a "yard" surrounded by a so-called "plough land." There was a dwelling house on this yard as well as a bar, a cocktail bar, an office, a bottle store and a butchery. These various components of the immovable property were divided as follows by the Chief. The bar, the cocktail bar and the office were allocated to the deceased while his second wife got the bottle store and the butchery. The "plough land" was divided between the two spouses in equal shares. The house was to remain the property of both spouses, to be held by the deceased in trust for their last born son (the second respondent). The Chief added as follows in his report:
"This property on which we are gathered belongs to both of you but, upon your deaths it all goes to Mrs Seitshiro's last born son Kesebonye Kesebonye [the second respondent]. Should Kesebonye's death precede yours, then it goes to the elder child Ramaretlwa Kesebonye [the third respondent]. Should he die a bachelor then it will go [to] the son from the first marriage which is the norm in Setswana tradition."
The deceased died in 1995 but it is common cause that his second wife is
still alive. It would therefore appear that the appellant had and still has a
contingent right in the deceased's estate.

3
In terms of a letter dated 28 February 1997 a firm of attorneys acting on behalf of the second and third respondents made application to the first respondent to transfer the Nkaikela house, the Nkaikela yard and the Nkaikela bar into the name of either the one or the other of them. The first respondent replied as follows on 19 May 1997:
"Re; Application for transfer of late Seitshiro's Property - Tlokweng
Your letter dated 22nd April, 1997 refers:
At its meeting held on the 14th April, 1997, the Tlokweng Land Board resolved to approve your application for the transfer of immovable property i.e. Nkaikela dwelling house, 2. Nkaikela yard, 3. Nkaikela Bar from the late S. K. Seitshiro to Peter Kesebonye and Spencer R. Kesebonye."
The appellant subsequently brought an application inter alia for "an order
rescinding and setting aside transfer (if any) of the lease rights, title and
interest in respect of the immovable property situated at Tlokweng
comprising the following developments namely: Nkaikela dwelling house,
Nkaikela yard and Nkaikela bar from the estate of the late Seitshiro
Kesebonye Seitshiro to Peter Kesebonye and Spencer R. Kesebonye". The
Court a quo dismissed the appellant's application with costs. In terms of
his amended notice of appeal the appellant asks this Court to set aside the
order of the Court a quo and to substitute therefor an order setting aside
the decision of the first respondent of 14 April 1997 in terms whereof it
approved the application of the second and third respondents for the
transfer of the lease rights in respect of the immovable property at Nkaikela
Ward, Tlokweng, comprising a dwelling house, yard and bar.

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I have already indicated that the appellant has a contingent right in the deceased's estate. We were also informed by counsel, and this appeared to be common cause, that the improvements comprising the bar, the cocktail bar, the office, the bottle store, the butchery and the house were all situated on the same "yard" and that the "plough land" was part thereof. Transfer of the lease rights in respect of this "yard" to the second and third respondents would therefore in law bring about a transfer of the land with all the fixed improvements thereon as well as the "plough land." There is certainly no indication that the Chief, in dividing the joint estate in 1982, intended that the second and third respondents should inherit the entire estate of the deceased.
Counsel for the second and third respondents submitted^while accepting the above, that they should not be held liable for the costs where the first respondent erroneously approved the transfer. It seems to me however that the first respondent would not have considered such a transfer if it had not been for the application brought by the second and third respondents.
The appeal is accordingly upheld with costs. The order of the Court a quo is set aside and the following order is substituted in its place:
"1. The decision of the first respondent of 14 April 1997 to approve the application of the second and third respondents for the transfer of the lease rights in respect of the immovable property at Nkaikela Ward, Tlokweng,

comprising a dwelling house, yard and bar, as well as any transfer pursuant to such decision, are set aside.
2. The second and third respondents are ordered to pay the applicant's costs."
DELIVERED IN OPEN COURT AT LOBATSE ON THE        DAY
OF JANUARY 2003.


 F. H. GROSSKOI JUDGE OF APPI

I agree,
I agree,

'isSJl/Xji^'
 K. R. A. KORSAH JUDGE OF APPEAL
C. PLEWMAN JUDGE OF APPEAL

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