Kweneng Land Board v Mpofu and Another (Civil Appeal No. 15 of 204) [2005] BWCA 1; [2005] 1 B.L.R. 3 (CA) (1 January 2005)

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Kweneng Land Board v Mpofu and Another (Civil Appeal No. 15 of 204) [2005] BWCA 1; [2005] 1 B.L.R. 3 (CA) (1 January 2005)

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IN THE APPEAL COURT OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Civil Appeal No. 15/04 High Court Misca No. 639/00
In the matter between:
KWENENG LAND BOARD Appellant
and
1^ST RESPONDENT 2^ND RESPONDENT
MAGGIE SIZIBA MPOFU MOTLALEPULA NONONG
Mr. K. N. Monthe for the Appellant Dr. H. Lever for the Respondents
JUDGMENT
CORAM: TEBBUTT J. P. KORSAH J. A. ZIETSMAN J. A. AKIWUMI J. A. MOORE J. A.
TEBBUTT J. P.:
Two important issues are raised in this appeal. They are:

Whether this court, as the Court of Appeal and thus the highest court in this country can, and if so should, declare a previous judgment of the court to have been wrongly decided and to substitute for it a judgment which it considers to be the correct one; and

Whether persons can hold land in tribal areas designated by legislation as vesting in and thus falling under the

jurisdiction of land boards created by the Tribal Land Act (Cap 32:02) in their personal and private capacities i.e. have freehold title to the land enabling them to alienate it to others. Both these issues arise as a result of a judgment by Collins J. in which he was called upon, in an application brought before him by the present respondents, to come to a decision on the second of the issues. In coming to his view on it - of which I shall have more to say later in this judgment - Collins J. stated that he was bound by a decision of this court and obliged to follow it. However, in a carefully considered and well articulated judgment, he expressed his respectful view - and set out his reasons for it - that that decision was incorrect. It is that decision which forms the basis of the first of the issues. It is reported in Kweneng Land Board v. Matlho and Another 1992 B.L.R 292 and is a majority decision of this court delivered by Aguda J. A, Amissah J.P concurring, with Bizos J. A. dissenting.

Before considering the two issues raised, I must set out the facts which gave rise to the litigation between the parties which has now ended up in this court. I can do so relatively briefly because most of them are common cause or, if not common cause, can really not be disputed.

The first respondent is a female pharmacist practicing in Gaborone. She is a citizen of Zimbabwe. In 1989 she acquired from the second

respondent a plot in the Nkoyaphiri ward at Mogoditshane on which she has built a house worth about P300 000.00. The plot is situated within the territorial jurisdiction of the Kweneng Land Board, which was created by the Tribal Land Act in 1970. In 1989 the plot was an undeveloped ploughing field. The second respondent, to whom the first respondent is related by marriage, acquired the plot as a donation from her mother, who in turn acquired it from her mother (now deceased) who was allocated it in 1910 to cultivate it by the Chief of the area, Kgosi Pule, in accordance with Bakwena Customary law. First respondent says that when she took occupation of the plot it was the understanding between her and second respondent that she would apply to the Kweneng Land Board (to which for convenience, I shall hereinafter refer as the Land Board) for fo^rmalization of her occupation of the plot. This she did in 1989 but heard nothing from the Land Board for four years. She put up a fence around the plot between 1989 and 1990 and built the house on it in about 1993 to 1994.

The Land Board disputes this date, saying that first respondent was still in the process of building it in 1995. It states further that she did so despite admonitions by the Land Board to stop her building operations as she did not have the necessary permission to do so. In 1994, because she was told that her application had been lost, she filed a fresh application. She heard nothing until May 2000 when she was called to the offices of the Mogoditshane Surbodinate Land Board (which is

surbodinate to and falls under the control of the Kweneng Land Board) to discuss her occupation of the plot and her alleged illegal building operations on it. Nothing occurred at that time. On 11 December 2000 she was called to a second meeting of the Mogoditshane Board where she was told that she had to vacate the plot within 10 days. On the same day she also signed an affidavit in which she said that she did not wish to enter into litigation in regard to the plot and undertook to vacate it by 21 December 2000. First respondent avers that she signed this document under duress, being threatened with imprisonment if she did not do so. In the overall context of this judgment nothing really turns on this aspect of the matter.

As a result on 19 December 2000, first and second respondents filed an urgent application for a rule nisi, returnable on 23 February 2001, in which they sought the following orders:

(a)

prohibiting and restraining the Land Board from demolishing first Respondent's home or doing any act whose effect would be her ejectment from her home; alternatively

(b)

declaring any demolishing of her home or her ejectment from it without a court order to be unlawful.

On the return day the rule was, by consent of the parties, discharged and the matter postponed to allow it to go forward as an ordinary opposed application. The Land Board thereupon filed a counter-application for an order declaring:

(a)

that the purported allocation of the plot by second respondent to first respondent to be contrary to the provisions of the Tribal Land Act and therefore unlawful and consequently null and void;
(b)

that the developments on the plot similarly to be unlawful;

(c)

that the Land Board is entitled to cancel second respondents' customary rights, if any, over the plot;

(d)

that first respondent be evicted from the plot and be ordered to return it to the Land Board.

Second respondent features in this litigation both as an obviously interested party and also because it is her averment that if first respondent is dispossessed of the plot in any manner, it must revert to her.

In his judgment, Collins J. held that second respondent's right of occupation to the plot was lawful in terms of customary law. He found further that second respondent donated the plot to the first respondent in 1989 and that the Land Board knew of the latter's interest in the plot some time before November 1994. The appellant does not contest either of these findings.

Collins J. however, raised two questions:

(a) what was the legal nature of the customary right second respondent had in the plot; and

(b) did second respondent have authority to donate the plot to first respondent and if so, what role did the Land Board have in the transaction? It was in considering these questions that Collins J. said that he was obliged to apply the decision in the Matlho case referred to above.

The facts in Matlho were, as the learned judge put it, "uncannily similar" to those in the present case. Matlho had bought a plot (also co-incidentally in the Nkoyaphiri ward, Mogoditshane), from a fellow Mokwena, one Motlhabane. The latter had inherited it from his father, who had inherited it from his father. Matlho had built a house on it. The Land Board sought an order interdicting Matlho from occupying the land in question and evicting him from it. On the facts, in which the lineage whereby Matlho acquired the piece of land in question, and which was originally part of a tribal farm, was not disputed by the Land Board, the High Court, before which the Land Board's application was brought, dismissed the application. It held that the land was held by Motlhabane in his personal and private capacity. As such it did not vest in the Land Board but fell fairly and squarely within the exception contained in Section 10 (2) of the Tribal Land Act. I shall set out those sections of the Act that are relevant to this appeal, including Section 10 (2), in due course.

The majority decision of this court, in an appeal by the Land Board, upheld that finding, and it is that decision that Collins J. found himself, as a High Court judge in relation to a decision of the Court of Appeal, bound to follow. The provisions of Section 10 of the Tribal Land Act ("the Act") were cardinal to the decision both of the High Court and of this court in Matlho and I shall therefore now refer to that Act and, in particular, to the provisions of Section 10 of it.

The historical background to the enactment of the Act is to be garnered from the setting out thereof by the judges in Matlho and from the writings of Isaac Schapera in his book "A Handbook of Tswana Law and Custom", which work this and other courts have accepted as authoritative on customary law in this country. We were also referred by appellant's counsel to an article published in the Journal of African Law in 1992 on "Land Problems in some Peri-Urban Villages in Botswana" by a lecturer in law at the University of Botswana, one Clement Ng'ong'ola.

From these sources it seems clear that up to 1970 land in a tribal area was governed by customary law. According to Schapera, land rights among the Tswana people i.e. the indigenous people of Botswana, were enjoyed by members of a particular tribe and there was a number of identifiable tribes in the country. One such is the Bakwena tribe, which is the one concerned in this case.

A "tribe", says Schapera, is a "single political unit" under the leadership
of a Chief and occupying a fairly distinct geographical territory. The
Chief was "head of the tribe...symbol of tribal unity, the central figure
round whom tribal life revolved." The tribal land i.e. the land within the
tribe's geographical territory, fell under his control. He was not,
however, according to Schapera, the "absolute owner" of the land but he
had the power to allocate and distribute land, to regulate its use and to
resolve disputes. He could not, however, alienate it to non-tribesmen
and he did not have unlimited powers to take back allocated land which
was not properly used or occupied. He was, suggests Schapera, "a
trustee holding land for his tribe". Schapera states the general rule thus:

"The tribal territory and all its resources were administered by the Chief through the headmen of villages and wards. It was their duty to see that every married man received, free of special charge, a site of his home, a plot to cultivate, and facilities for grazing cattle. He was entitled only to what he and his children were themselves likely to use, and could never claim more. He could give away or lend out land he did not want at the moment, but he could neither sell it nor hire it out. He therefore had no incentive to the acquisition of large holdings for speculative or renting purposes. The result was that everybody obtained land at no other cost than the obligation, common to all, of carrying out his tribal duties, and that holdings did not vary in size except in so far as households differed in magnitude."

In 1966 one F. D. Homan submitted a report to Sir Hugh Norman-Walker, the head of the government of Bechuanaland at the time, on the then system of tribal land governance. His report is referred to by Bizos JA in the Matlho case. In it Homan said:

"Occupation and use of land in the Tribal Territories is still governed almost entirely by customary law."

He added in respect of the question of security of tenure of land allocated
by the Chief that:

"Nor, indeed, have tribesman themselves any security of tenure in the residential plots they occupy. The nearest simile in English Law is that they are tenants at will of the Chief; with the difference that a tenant at will of the Crown in England or in the erstwhile colonies would have recourse to the courts. A court can only determine the issue in accordance with customary law...."

(See Matlho op. cit. at. P 309 G-H). Homan went on to say:

"The powers of the chief in relation to land appear at first sight to be little short of despotic, but one must remember that it is a system which the Batswana have known and accepted for many years. When the question of land tenure reform is discussed with the average Motswana the fear is often expressed that, if progressive farmers are allowed to fence their land as a step towards individual tenure a state of affairs may be reached whereby there is no land left for the small man. In this respect there is no doubt that the Chief is looked upon by the ordinary peasant more as a father than a despot. He may be more generous in his allocation to some than to others but, under customary law he must and does ensure that no-one goes without land."

Should a person to whom land was allocated by the chief not wish to use
it, the land reverted to the tribe. Being land held in trust by the chief, he
could not alienate it. Schapera states the position thus (as quoted in
Matlho at 315 E):

"...Once a man has been given residential land, he acquires the exclusive right to its use. He may not sell the land, however, and should he go away permanently it reverts to the tribe and can be allotted to someone else. The Chief, moreover, has the power to move him away, either with the rest of his ward as already described, or by himself, if there is some good reason. These limitations of ownership...indicate that the man's right to his land is not absolute."

It is also of interest to see what the Privy council had to say about tribal
land and customary law. In Amodu Tijani v Secretary, Southern Nigeria
(1921) 2 A.C. 399 at 404-405 (cited by Aguda JA in Matlho at 300 C-D)
the following appears:

"Land belongs to the community, the village or the family, never to the individual. All the members of the community, village or family have an equal right to the land, but in every case the Chief or Headman of the community or village, or head of the family, has charge of the land, and in loose mode of speech is sometimes called the owner. He is to some extent in the position of a trustee, and as such holds the land for use of the community or family. He has control of it, and any member who wants a piece of it to cultivate or build a house upon, goes to him for it. But the land so given still remains the property of the community or family."

It is clear therefore that under the customary law there was no tribal
land which could be held by anyone in his "personal and private
capacity" or, in other words, in which he had a right of ownership. It did
not matter how long the land had been held. Acquisitive prescription
was unknown to the customary law (see per Bizos JA in Matlho at 315
D). I shall, however, advert to the length of time land is held later herein
in another context.

Botswana attained independence in 1966 and within two years the legislature decided to pass legislation in regard to tribal land. In 1968 it enacted the Tribal Land Act. This provided for the creation of a number of land boards for various tribal areas which would have jurisdiction and control over the tribal lands in those areas. The Act came into operation on 30 January 1970. From then on the land boards effectively stepped

into the shoes of the chiefs. Section 13 of the Act makes this clear and I
now proceed to set out the relevant sections. First, section 13. It reads
thus:
"13 (1) All the powers vested in a Chief under customary law in relation to land including-
(a) the granting of rights to use any land;

(b)

the cancellation of the grant of any rights to use any land including a grant made prior to the coming into operation of this Act;

(c)

hearing of appeals from, confirming or setting aside any decision of any subordinate land authority;

(d)

the imposition of restrictions on the use of tribal land,

shall be vested in and performed by a land board acting in accordance with the provisions of this Act.

(2) The President may, by order published in the Gazette, transfer to a land board the functions of any subordinate land authority which are vested in such authority under the customary law."

As appears from section 13 (1) (b) a Land Board can cancel any grant of
land. Section 15 sets out the circumstances in which it can do so. It
reads thus:

"The grounds upon which a grant of land may be cancelled, whether or not such grant was made before or after the coming into operation of this Act shall be-

(a)

that the holder of the grant is no longer eligible to hold land under the provisions of this Part;

(b)

failure to observe restrictions imposed under section 13(1) (d) or the provision of any law relating to town or country planning or good husbandry;

(c)

that the cancellation is necessary for ensuring the fair and just distribution of land among tribesmen entitled thereto;

(d)

that the land has been used for a purpose not authorized by customary law or that the holder thereof

has contravened any customary law relating to the use thereof;

(e)

in the case of agricultural land, that for a period of five consecutive years the land has not been cultivated and that there is no sufficient excuse for this; or

(f)

subject to the provisions of section 33, that the land is required for public purposes,

and no cancellation for any other reason shall be of any force or effect."

In regard to the granting of land, Section 20 provides that "no land board or subordinate land authority shall grant any land...to any person who is not a tribesman, unless that person has been specially exempted by the Minister." (The Act does not specify which Minister is referred to, or who is the appropriate one, but I assume it is the Minister of Lands, Housing and Environment). A tribesman is defined as "a citizen of Botswana who is a member of the tribe occupying the tribal areas as defined in the schedules to the Act."

I come finally, in this setting out of the sections of the Act that are germane to this judgment, to the section that is causing all the trouble viz section 10. That section, at the time of the Matlho judgment and at the time that is relevant to this judgment, consisted of two sub-sections, viz sub-sections (1) and (2). In 1993, however, and, it would seem, because of the judgment in the Matlho case, sub-section (2) was deleted in its entirety. The two sub-sections were, however, both still in existence at all times relevant to this appeal. They read as follows:

"(1) All the rights and title to land in each tribal area listed in the first column of the First Schedule shall vest in the land board set out in relation to it in the second column of the Schedule in trust for the benefit and advantage of the tribesman of that area and for the purpose of promoting the economic and social development of all the peoples of Botswana.

(2) Nothing in this section shall have the effect of vesting in a land board any land or right to water held by any person in his personal and private capacity."

It will be observed that the trustee nature of land tenure under the chiefs was endorsed by Section 10 (1) in relation to land boards. The question which arose in Matlho was whether land acquired in terms of customary law, as the land in question in that case obviously was, could come to be held by the person occupying it in his "personal and private capacity." Motlhabane who sold the land to Matlho said he had acquired the land "by virtue of customary law of succession and inheritance from my father...who had inherited it from my grandfather." He went on to say "I have, over a considerable period that is from 1960 to date, held the said land in my personal and private capacity and had at all times regarded the land as mine by way of customary rights."

The appellant in Matlho, the Kweneng Land Board, sought in the High Court an order interdicting Matlho from developing the land in question, alleging that it vested in it (the Land Board) and that the land was not held by Motlhabane, and through him by Matlho, in his personal and private capacity. The High Court refused the order.

On appeal to the Court of Appeal, the majority of the court held that the onus was on the Land Board to prove that the land was not held by Matlho in his personal and private capacity. It did so on the basis, firstly, that a person in possession of property is presumed to be the owner until the contrary is proved, and, secondly, because the family of Motlhabane, who sold the land to Matlho, had been in uninterrupted possession of the land for three generations. In considering whether the land board had discharged that onus the court referred to affidavit evidence by the head of the village in which the land was situated that the customary law of the area permitted Motlhabane to allocate or sell the land to any person. I shall return to this evidence later herein.

One of the most important aspects of the judgment of the Court of
Appeal was this. The majority of the court expressed the view that
customary law was not static in nature but changed with changing
conditions in society. It therefore found as follows (at 303 G-H), per
Aguda JA:

"In the view whatever the customary law might have been in the past in the area concerned in this case, the law had apparently developed to permit of private ownership by tribesmen of tribal lands. I am not prepared to decide here the general issue as to the circumstances under which the grant of lands to members of the tribe will ripen into private ownership. However I have no doubt in my mind that in all the circumstances of^ this case the appellant has failed to satisfy me that the court below was wrong and show that under the customary law applicable in the area where the land in dispute is situated a tribesman could not hold any

piece of land in his personal and private capacity. On the other hand the evidence tendered by the second respondent that he had capacity to hold land in his personal and private capacity has not been sufficiently contradicted, and upon the evidence he must be held to have acquired title to the land in his personal and private capacity. He has lawfully transferred it to the first respondent."

I turn then to the first of the two issues I set out at the start of this
judgment viz can this court, and if it can, should it, find that that
decision was wrong and should be set aside and altered by a correct one.

I have no doubt that if this court as presently constituted should be of the opinion that the Matlho case was wrongly decided and that the consequences that flow from it should not be allowed to stand, this court would be able to set it aside and substitute for it what it considers a more correct decision.

The rule stare decisis, which is a maxim expressing the underlying basis of the doctrine of precedent viz that it is necessary to abide by former precedents when the same points arise again in litigation, is a feature which is peculiar to English law. It has been applied with great rigidity in England (see per Centlivres CJ in Fellner v Minister of Justice 1954 (4) S.A 523 (a) at 529 F-G, citing Salmond on Jurisprudence). The common law of Botswana, like that of South Africa, is not the English common law; it is the Roman Dutch law and the reverence for judicial precedent is different in South Africa and Botswana from what it is in England. This difference must be borne in mind when considering to what extent our

courts must apply the stare decisis rule (see Fellner's case at 530 F). It has been held more than once in South Africa that the Court of Appeal there is not absolutely bound by a previous decision of its own (see Harris and Others v. Minister of the Interior and Another 1952 (2) S.A 428(A) and cases there cited) and that it will overrule a previous decision if it is satisfied that such previous decision was incorrect (see Collett v Priest 1931 AD 290 at 297; Harris's case supra at 452-3; Ellis Park Stadion v. Minister van Justisie 1990 (1) SA 1038(A) at 1051 H).

While stare decisis is a sound rule and previous decisions of this court
should not be lightly overruled by a later court, nevertheless this court
should not hesitate to do so where it is satisfied that the earlier decision,
and particular the ratio decidendi of it, was incorrect. It will examine
such earlier decision especially closely where there was a split decision in
the earlier court (see Fellner's case supra at 529 B-E). It will also be
more inclined to upset a previous decision, where it considers such to
have been incorrect, when it sits as a court of five judges and the
quorum of the court in the previous case was three. In Fellner's case
Centlivres CJ referred to a decision of the Queen's Bench Division in
England where Lord Esher M. R. said:

"This Court is one composed of six members and if at anytime a decision of lesser number is called in question, and a difficulty arises about the accuracy of it, I think this Court is entitled, sitting as a full court, to decide whether we will follow or not follow the decision arrived at by the smaller number."

(see Kelly and Company v. Kellond 20 BD 569 at 572). Nor should the rule stare decisis be rigidly applied where the earlier decision does not lay down any binding principles (see Rex v. Willams 1957 (3) S. A. 22 (N) at 26 A-B. Having found that this court can alter a previous judgment of the court, I turn to consider whether it should do so in regard to the Matlho case.

A careful analysis of Matlho reveals that the majority of the court in that case came to the conclusion it did substantially on two considerations, viz.:

(i) that customary law, by the time the Tribal Land Act was passed, had "apparently developed to permit of private ownership of tribal lands" (see per Aguda JA AT 303 G, with Amissah JP concurring); and

(ii) on the evidence given before it, Matlho must be held to have acquired title to the land in his personal and private capacities.

In regard to both of these, the majority of the court placed great store on an affidavit filed on behalf of Matlho by the headman of Gabane village in Nkoyaphiri Ward, one Rainbow Pule, who asserted as follows:

"3. According to my knowledge of the customary law of succession and inheritance, any piece of land allocated by a chief to a particular family belongs solely to that family and devolves per stirpes to the descendants of the original grantee.

4. It is further within my knowledge that any grantee or his descendant, who has a right over such piece of land is entitled according to customary law, to deal with it any legal way he deems fit, e.g. to sell it to any third party or to donate it to any third party.

7. It is within my knowledge that the piece of land belongs to Pheto Motlhabane by way of customary rights ...

I state that according to customary law, it is within Mr. Motlhabane's power to allocate or sell the piece of land to any person."

This evidence was not challenged by the Land Board nor were any affidavits filed on its behalf disputing the allegations. It relied rather, on the writings of authors on customary law to the effect that the concept of "ownership" of customary land does not include the right of sale of land held under that system of land tenure. This was also the view of two assessors who sat with the judge who heard the matter in the High Court. This view was rejected by the Court of Appeal because there was no evidence as to what their qualifications were to express a view on the customary law of the Bakwena tribe. As to the other sources, the majority of the court found that the opinions expressed therein were generalised and were "not necessarily valid" at the time the Act came into effect whereas the unchallenged evidence of the headman related to the custom at the material time of the place where the land was situated.

I have already cited earlier herein Aguda JA's reasons for finding in favour of Matlho and against the Land Board. I need not repeat the

whole passage but in order adequately to analyse the judgment of the
majority of the court it is necessary to highlight the critical portions of it.
They are that, because of the incidence of the onus and the evidence of
Pule, the court (per Aguda JA) found that the Land Board;

"....has failed to satisfy me that the court below was wrong and show that under the customary law applicable in the area where the land in dispute is situated, a tribesman could not hold any piece of land in his personal and private capacity. On the other hand the evidence tendered by the second respondent that he had capacity to hold land in his personal and private capacity has not been sufficiently contradicted, and upon the evidence he must be held to have acquired title to the land in his personal and private capacity. He has lawfully transferred it to the first respondent."

The passages I have cited make it abundantly clear that, as I have said,
the court decided the Matlho case on the facts and evidence of that case.
It did not purport to lay down any binding principle or to give an
interpretation of Section 10 (2), save to say, as set out above, that
"whatever the customary law might have been in the past in the area
concerned in this case, the law had apparently developed to permit of
private ownership by tribesman of tribal lands." I have emphasized two
aspects of that sentence. In the first place, the court was prepared to
express a view, presumably based on Pule's affidavit, only in regard to
the area concerned in the case before it. Secondly, the court did not find
that the customary law did permit of private ownership but only that that
had "apparently" occurred. The sentence quoted can, therefore, by no
criteria, be said to constitute an interpretation of section 10 (2) or as to
what was meant by the Legislature in its reference in the section to
19

"personal and private" holding of land. Indeed Aguda JA deliberately
shied away from doing so, for he said, as quoted earlier herein:

"I am not prepared to decide here the general issue as to the circumstances under which the grant of lands to members of the tribe will ripen into private ownership."

Amissah JP in his concurring judgment, was even more circumspect.
He, too, expressed the view that customary law was not static in nature
and could change with changing conditions in the society in which it
operated. He referred to that passage in Schapera's book (cited above) in
which the author said, in relation to a tribesman's use of land granted to
him that "he could give away land or lend out land he did not want at the
moment but he could neither sell it nor hire it out." He asked whether
this did not involve in modern society, as distinct from a previously
pastoral one, the alienation of land and whether the "giving away or
lending out of land", did not extend to the asking for some consideration
for doing so, i.e. a change in the customary law to allow a sale of the
land. Having posed the question, the learned Judge President did not
directly answer it. He, too, referred to the affidavits filed by Matlho,
including that of Pule, and to the contrary opinions of the text writers
and said that he felt that the court was entitled to take the view that the
statement of the customary law as enunciated by the books had on the
evidence of those affidavits,been modified in the area in question to take
account of developments since the books were written. Again, I
emphasise the words "in the area in question", once more indicating that
the Matlho judgment went no further than to deal with the specific land
20

in dispute in that case and in deciding its fate in the light of the
unchallenged evidence before the court there. Indeed, Amissah JP said:
at 306 G-H;

"The problem in this case is presented by the fact that the legislation which vested the lands in the appellant body excepted lands and water rights acquired previously by the individual. It recognized that such rights were possible. In a sense a case could, I suppose, be made that customary law in its ancient form never recognized individual rights at all. Obviously, that is not the vintage of the law the Tribal Land Act, section 10 was dealing with. The question then is how may the rights acknowledged by the legislation be determined? This is a matter to be determined by the trial court from all material before it. In this case the court decided that the respondents' claim was justified. Holding the view of customary law as I do, I do not think I should disturb that decision."

The learned Judge President went on to add:

"The situation disclosed may be one which might benefit from legislation further clarifying the object of the government."

In the minority judgment of Bizos JA, the learned judge also referred to
the writings of Schapera and Homan and stated that there was no doubt
that sale of tribal land was prohibited under the customary law. He also
referred to a Government White Paper No. 1 of 1992, published in March
1992, in which "Land Problems in Mogoditshane and Other Peri-urban
Villages" were discussed. These included the question of the sale of land.
The custom of not allowing tribal land to be sold was recognized and
where the sales had taken place this was due, in the words of the White
Paper, to the fact that "traditional ingenuity had found its way around
the restriction" rather than an acceptance of the abrogation of the
21

custom by disuse or "the change of the customary law allowing the outright sale as suggested in this case."
In regard to section 10 (2) Bizos JA also posed the question as to
"whether land acquired in terms of customary law, as the land in
question obviously was, may become 'personal and private'. He, too,
however, like the rest of the court, did not answer the question. He
declined to follow the majority because, he said, nowhere was it alleged
by the seller how the change came about. It was not the length of tenure
of the land, which as I have said was suggested by the majority, because,
said Bizos JA, acquisitive prescription was unknown to customary law.
He went on to say the following at 316 C-E:

"That land tenure should be regulated by customary law of bygone days is recognized as a problem in the White Paper and the necessity to change it is acknowledged for economic and development reasons.

In my view the court should not on that ground hold that a case of a change in customary law has been made out on the ambiguous statements in hurriedly drawn affidavits by persons who have a percuniary interest or are closely connected with those who have such interest. A decision that the custom has changed must be proved by clear and satisfactory evidence preferably by persons of known integrity who have no interest in the outcome of the proceedings. To do it case by case in village by village will lead to litigation and the results will vary depending on the resources of the parties, the availability of witnesses, and the competence or otherwise of their legal representatives."

From the passages I have cited from the judgments of Amissah JP and
Bizos JA, both judges expressed the desirability of legislation which
might clarify the object of the Government in its having enacted section
22

10 (2). That legislation was not slow in coming. In August 1993 the
Tribal Land (Amendment) Act No. 14 of 1993 was passed. This contained
a number of provisions which, it would seem, were designed by the
Legislature to underline the customary law restriction on the private
ownership of tribal land.
My view as to this is based on the following. Firstly, a new section 13(1)
in Part III of the Act vests in the Land Board, as the previous section 13
(1) did, all powers previously vested in a Chief under customary law in
relation to land but it goes further than the previous section for it
includes in those powers not only the granting of rights to use in a tribal
area, but also the cancellation of the grant of any rights to use any such
land and the authorizing of any transfer of tribal land, (my emphasis).
Secondly, it amends section 24 of the Act which previously allowed a
land board to grant to any person a common law form of tenure by way
of lease or "in ownership", by deleting the latter and stipulating that the
land board "may only grant land in ownership to the State." Thirdly, the
amending Act introduces a new section 38 the material part insofar as
this judgment is concerned being section 38 (1) which reads as follows:

"38. (1) The rights conferred upon any person in respect of any grant or lease of any tribal land, whether made under or in accordance with Part III or Part IV, or made prior to the coming into operation of this Act, shall not be transferred, whether by sale or otherwise, to any other person without the consent of the land board concerned." (my emphasis).

Fourthly, and most important of all, section 10 (2) is deleted in its
entirety.

It has been said that although it is not strictly permissible to interpret a statute by reference to what has been done in subsequent statutes, nevertheless recourse can be had to what is sometimes described as "parliamentary expositions" of the meaning of some earlier Act, and if an earlier Act is ambiguous or some of the expressions therein are considered to be left in doubt, a later Act may be looked at to throw light on the earlier one (see Craies on Statute Law 7^th Edition at pages 146-148; Battersby v Kirk (1836) 2 Bing NC 584 at 609, cited by Craies loc. cit.; Cape Brandy Syndicate v I.R.C. (1921) 2 KB 483; R v Joseph 1933 O.P.D. 272; Clan Transport Co. (Ptv) Ltd and Others v Road Services Board and Others 1956 (4) SA 26 (SR) at 33 D-G; Hill v Secretary for Inland Revenue 1966 (3) SA 1 (CPD) at 4B).

As stated by Lord Atkinson in the Cape Brandy Syndicate case, supra, at 164, light may be thrown by the aim and provisions of a subsequent statute on an interpretation of an earlier Act where such Act is obscure or where the part of the earlier Act which it is sought to construe is "fairly and equally open to diverse meanings" (see also Re Mac Manaway (1951) A.C. 161 (PC) at 169).

I have no doubt that the interpretation of the words "land or right to water held by any person in his personal and private capacity", in the context of the Tribal Land Act, is obscure and "fairly and equally open to diverse meanings." For instance, were there plots or pockets of land

within a tribal area which did not belong to the tribe but were owned by persons who were not tribesmen? Or did churches and other places of religious worship fall outside the ambit of tribal land, although situated within a tribal area. One can conceive of many instances of which the above are but some examples. Again, did the Legislature know of the private sales referred to by Bizos JA as having taken place because of "traditional ingenuity having found its way around the restriction" -particularly to non-tribesmen (as was suggested by the Attorney General who appeared as amicus curiae in Matlho) - and decide not to interfere with them? Whatever lay behind the object of the Legislature in enacting section 10 (2), I cannot accept that it intended to create a class of private ownership within the customary law. It would fly in the face of all the tenets of customary law, which from all the authoritative text writers specifically excluded it.

In the present case reference to the later statute also, in my opinion, reveals that such was not the Legislature's intention in enacting the earlier section 10 (2). I can also not find that the Legislature intended to create a class of private ownership of tribal land previously allocated under customary law and which would have excluded such ownership, by that allocation "ripening into private ownership". Aguda JA said he could not decide the circumstances under which this could occur. With good reason. For how long would a person have to hold such land before it could occur? What conditions could bring it about? If this had been

the intention of the Legislature, it would surely have laid down the circumstances in which it could occur. Even though agreeing that customary law is not static and may in certain circumstances change with changing conditions in the society in which it operates, I am therefore respectfully obliged to differ from the court in Matlho that the customary law had so changed as to permit of private ownership in tribal land whose tenure was governed by customary law. However, even if this were the situation, which I have held it is not, there is no evidence in the present case that this had ever occurred.

The onus, so the court in Matlho held, was on the Land Board to prove that the land in dispute was not held personally and privately. I respectfully beg to differ. It did so, as I have shown above, on the presumption of ownership created by possession and because of the length of time, the possessor had held the land. With the greatest respect, such reasoning is fallacious. The presumption referred to is, in the first place, a rebuttable one but it was, in the second place, possession held on the basis of the grant by the Chief, which excluded private ownership. As to the length of time, this was a neutral factor, remembering, as one must, that acquisitive prescription had no place in customary law. Finally, it required the Land Board to prove a negative. In my view the onus is on the respondents to prove that they held the land in their personal and private capacities. This is in accordance with the basic rule that he who asserts must prove (see Pillay v Krishna 1946

AD 946 at 951-2, a decision followed in hundreds of subsequent cases
both in South Africa and Botswana). A fortiori in a case such as the
present. I respectfully agree with Bizos JA in his minority judgment
where he said at 312 G:

"In civil cases where the existence of the general rule that land could not be sold is admitted or not seriously disputed and one of the parties claims that the general rule has changed in relation to his property the onus is clearly on the party who claims the exception or variation to the general rule."

The respondents have in my view not discharged that onus. Indeed, it
would appear that they did not believe that they had private ownership
in the land because first respondent says that it was understood between
her and second respondent that she would apply to the Land Board for
formal permission to hold the land in question. She in fact did so twice-
in 1989 and again in 1994. Moreover, not being a "tribesman" or even a
citizen of Botswana she was not entitled to hold the land without a
special exemption from the Minister which, it is undisputed, she had not
obtained (see section 20 of the Act).
For all the above reasons the court accordingly holds:

that section 10 (2) of the Act did not create a class of private ownership of tribal land within a tribal area;

that second respondent did not hold the land in question in this case in her personal and private capacity entitling her to alienate it to first respondent.

The effect of the foregoing is that first respondent's occupancy of the land must be declared unlawful. The land was, however, passed down, as was permitted by customary law, by members of second respondent's family from her grandmother to whom the plot was granted by the chief in 1910 to her mother and by the latter to second respondent. There has been no cancellation of that grant by the Land Board in terms of sections 13 (1) and 15 of the Act. The grant of the use of the land accordingly stands unaffected.

The judgment and order of Collins J. was based on the decision in Matlho's case and he therefore held that first respondent had acquired her right to the plot in question lawfully and ordered that the Land Board be prohibited from demolishing her house. It was that judgment and order that the appellant Land Board appealed against.

As this court has found, it is not bound by the decision in Matlho and, further, on all the circumstances of this case first respondent's occupation of the plot is unlawful. The appeal must therefore succeed. But what of the demolition of the house? The documentary evidence filed by the Land Board in its counter-application reveals that the building of the house without the Land Board's consent was irregular and that the first respondent was aware of it. It is, however, undisputed that there is now a house worth P 300.000 on the plot. In her founding affidavit first respondent pointed out that arrangements had been made by the Land Board with other occupiers of plots under its jurisdiction to

allow them to retain their houses and not have them demolished. If, as I have found, the use of the plot should revert to second respondent, such an arrangement should be considered by the Land Board rather than to have a valuable house demolished. The court is, however, unable to make an order to that effect but would urge the Land Board seriously to consider its suggestion.

It is therefore ordered as follows:
1. The appeal succeeds.

The purported allocation by second respondent to first respondent of the plot at Nkoyaphiri, Mogoditshane, in Kweneng Tribal Territory, is declared to be contrary to the provisions of the Tribal Land Act and therefore unlawful.

2.1 The first respondent is ordered to vacate the said plot within 30 days of this order.

Occupancy of the said plot is ordered to revert to second respondent.

Appellant is granted an order entitling it, should it so decide, to the demolition of the residential house on the said plot.