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Namibia: Labour Court |
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IN THE HIGH COURT OF BOTSWANA
HELD AT LOBATSE
In the matter between:
ROY SESANA 1st Applicant
KEIWA SETLHOBOGWA AND OTHERS 2nd & further Applicants
and
THE ATTORNEY GENERAL (in his Respondent
capacity as Recognized agent of the
Government of the Republic of Botswana)
Mr. G. Bennett for the Applicants
Mr. S. T. Pilane with him Mr. L. D. Molodi for the Respondent
J U D G M E N T
CORAM: Hon. Mr. Justice M. Dibotelo
Hon. Justice U. Dow
Hon. Mr. Justice M. P. Phumaphi
M. DIBOTELO, J.:
On the 19 February 2002, the Applicants filed an urgent
application on notice of motion seeking at paragraphs 2 and 3 thereof an order declaring, inter alia, that:
“2 (a) The termination by the Government with effect from 31 January 2002 of the following basic and essential services to the Applicants in the Central Kalahari Game Reserve (CKGR) (namely) –
the provision of drinking water on a weekly basis;
the maintenance of the supply of borehole water;
the provision of rations to registered destitutes;
the provision of rations for registered orphans;
the provision of transport for the Applicants’ children to and from school;
the provision of healthcare to the Applicants through mobile clinics and ambulance services
is unlawful and unconstitutional;
the Government is obliged to:
(i) restore to the Applicants the basic and essential services that it terminated with effect from 31 January 2002; and
(ii) continue to provide to the Applicants the basic and essential services that it had been providing to them immediately prior to the termination of the provision of these services;
(c) those Applicants, whom the Government forcibly removed from the Central Kalahari Game Reserve (CKGR) after the termination of the provision to them of the basic and essential services referred to above, have been unlawfully despoiled of their possession of the land which they lawfully occupied in their settlements in the CKGR, and should immediately be restored to their possession of that land.
3. the Respondent pays the Applicants’ costs.”
The Application was supported by the founding affidavit of the First Applicant.
2. On the 4 March 2002, the First Applicant filed a supplementary affidavit seeking additional declaratory orders “….. that the refusal by the Government’s Department of Wildlife and National Parks to:
(a) issue special game licences to the Applicants; and
(b) allow them to enter the CKGR unless they possess a permit,
is unlawful and unconstitutional.”
The application was opposed by the Respondent who filed several opposing affidavits. The Applicants then filed the replying affidavit of the First Applicant and several supplementary or supporting affidavits. In his opposing papers, the Respondent also raised several points in limine. When the matter came up for hearing only the points of law were argued. On the 19 April 2002 I upheld those points of law and dismissed the application but in doing so, I also granted the Applicants, if they so wished, leave to re-institute their action on properly prepared papers in terms of the Rules of Court.
3. The Applicants were dissatisfied with my decision and took the matter to the Court of Appeal which on the 11 July 2002 took the view that it should be referred back to this Court for determination of the issues to be agreed by the parties. On the 23 January 2003 after the parties had formulated and agreed on the issues, the Court of Appeal referred this matter to the High Court, inter alia, in the following terms:
“IT IS ORDERED BY CONSENT AS FOLLOWS:
1. The matter is referred to the High Court for the hearing of oral evidence by the Applicants’ witnesses at Ghanzi and the Respondent’s witnesses at Lobatse on a date to be determined by the Registrar as a matter of urgency in consultation with the parties’ legal representatives on the following issues:
(a) whether the termination with effect from 31st January 2002 by the Government of the provision of basic and essential services to the Appellants in the Central Kalahari Game Reserve was unlawful and constitutional.
(b) whether the Government is obliged to restore the provision of such services to the Appellants in the Central Kalahari Game Reserve;
whether subsequent to 31st January 2002 the Appellants were:
(i) in possession of the land which they lawfully occupied in their settlements in the Central Kalahari Game Reserve;
deprived of such possession by the Government forcibly or wrongly and without their consent.
(d) whether the Government’s refusal to:
issue special game licences to the Appellants;
and
allow the Appellants to enter into the Central Kahalahari Game Reserve unless they are issued with a permit
is unlawful and constitutional.”
Paragraph 8 of that Order states in part that:
“The Court will give its full reasons in a judgment which will be handed down before the end of the session.”
4. The judgment referred to in paragraph 8 of the order was in fact handed down on the same day the order was made, i.e. the 23rd January 2003. In that judgment the Court of Appeal expressed the view that whether it upheld or set aside the judgment of this Court against which the Applicants had appealed, “on the affidavits which were already filed either by the appellants or by the respondent there would clearly be serious disputes of fact” (vide page 2 of that judgment); and went on to state at page 6 thereof that “….. the whole purpose of referring the matter for the hearing of oral evidence was to overcome any problems in relation to affidavits filed thus far and that any issues relating to them should no longer be a consideration in having the dispute between the parties resolved by oral evidence”, (my emphasis).
5. Issues 1(a) to (d) of the Court of Appeal order are the ones
that require to be determined by this Court. Furthermore, a
close examination of these issues reveals that they substantially incorporate the reliefs originally sought by the Applicants at paragraph 2 of their notice of motion, and the reliefs contained in the supplementary affidavit of the First Applicant filed on the 4 March 2002. The Respondent has urged the Court to determine who the Applicants are in this action so that there should be no doubt or confusion as to who the beneficiaries of the court order would be in the event the Court finds in favour of the Applicants, especially when it came to the implementation of the court order by the Government. It is an established principle that a Court should be able to supervise its own orders and to achieve that purpose it is important that there should be certainty as to who the litigants are in any given case. The Court has also from time to time raised this matter with Counsel for the Applicants because no witnesses who testified purported to speak for all the Applicants; even Losolobe Mooketsi (PW7) who relocated to New Xade where he was a paid Headman of Arbitration for Kikao Ward did not purport to speak on behalf of the Applicants. It has been argued by Counsel for the Applicants “that it would have been utterly impossible to call more than 240 Applicants to testify as to the individual circumstances in which each of them was relocated.” This may well be so but it did not and could not debar or prevent the calling of the leaders of the Applicants to testify on behalf of the Applicants in regard to the circumstances surrounding the relocation of the Applicants from the CKGR in early 2002. It is also important to identify who the Applicants are so that the outcome in this action binds only those persons. When the action was instituted there were 243 Applicants and some have since died, but were not substituted, while others did not come forward to prosecute their claim. One hundred and eighty-nine Applicants have authorized Attorneys Boko, Motlhala and Ketshabile to represent them in this action and it is those Applicants whose names appear in Table A annexed to the judgment who are parties to this action.
6. The trial took some 130 days spread over a period of just over
two years and the typed record of the proceedings comprise some 18,900 pages. During the trial, there were several lengthy postponements at the instance of the Applicants, and save, for only one week when one of us was bereaving due to the loss of his mother, and may Her soul rest in ever lasting peace, the trial was never postponed for the reason that the Court was in no position to proceed with the same. At the commencement of the trial, the Court decided to conduct an inspection in loco of the new settlements of Kaudwane and New Xade outside the CKGR, and of the settlements of Gugamma, Kikao, Mothomelo, Metsiamanong, Molapo and Old Xade inside the CKGR. The decision to conduct the inspection of the settlements inside the CKGR was strongly opposed by the legal representatives of the Applicants in May 2004, but was supported by the Respondent who also asked the Court to visit Gope inside the CKGR. The main ground for opposing the inspection in loco of the settlements inside the CKGR by the legal representatives of the Applicants was that there was nothing for the Court to see in those settlements as the residents who used to live there had relocated to outside the CKGR. The Court decided to defer the visit to Gope, but indicated that it would do so if the need arose during the trial. The Court conducted the inspection in loco from the 4th to 7th July 2004 of the new settlements outside the Reserve and those inside the Reserve. The trial commenced in New Xade on 12 July 2004 when the first witness for the Applicants started to testify. During the inspection, photographs were taken and a photo album and video of that inspection have been compiled.
7. (a) At Kaudwane the Court drove around the village on the 4th July 2004 and observed the Kgotla made of a concrete structure roofed with corrugated iron; a clinic; a rural administration centre; an unused tannery; a primary school consisting of four buildings with additional buildings under construction and teachers’ residences; semausu (vendor shop); homesteads with two to four huts as residential accommodation per compound; homesteads with huts and one-roomed corrugated iron-roofed houses; cement brick houses; two boreholes; water reservoir; donkeys, cattle, chickens and horses; people playing on football and netball grounds; and residential houses some with solar panels for accommodating government or council employees.
(b) Some features which we observed during the inspection were common to Gugamma, Kikao, Mothomelo, Metsiamanong and Molapo in the CKGR. We saw some matlotla (ruins) at these places and, except for Kikao where there was some water at the nearby Kikao Pan at the time, there was no evidence of the source of water. Save for Mothomelo where we saw a sealed borehole with no engine and pump house, there was a concrete platform at each of the other four places where a water tank had rested at one point. There was no sign of people or evidence of their presence nor were there any standing huts at what used to be Kikao and Mothomelo settlements.
(c) We took two hours to travel on a formidable road from Kutse Game Reserve Gate to Gugamma where we observed about 10 huts made of traditional materials within some compounds which were fenced with traditional materials; about 10 adults and 7 children;
personal effects such as pots and clothing hanging on hut-like structures; goats, dogs and chickens; animal kraals, and a donkey cart. One woman who showed us matlotla told us that they got water from Kikao pan using the donkey cart; and that they had ploughing fields on which they cultivated beans, sorghum, maize and melons. We also observed another set of huts some distance away which we did not visit.
(d) (i) At Kikao pan we saw donkeys drinking from the pan.
(ii) After driving for some 30 minutes from Kikao, we stopped and were informed, but did not see, that there was in the distance and away from the road a newly constructed compound in which 9 adults and 5 children lived; and that the residents of the newly constructed compound had donkeys, horses, dogs, goats and chickens. We observed that there was no obvious access road to the new compound.
(iii) At Mothomelo where we arrived at 2 p.m. the Station Commander of Takatokwane Police Station who had been showing the Court around returned to Takatokwane and his position in the Judges’ vehicle was taken by the Ghanzi District Commissioner, Mr. Macheke, who later testified as DW12.
(e) (i) We arrived at a pan a kilometre outside Metsiamanong at 4:30 p.m. having traversed what was at times a very difficult terrain. The pan was dry but we observed 200 litre drums there, two of which were full of water while some were half full as well as a 20 litre white plastic container with water. All these were enclosed in a thorn-bush protective fence.
(ii) We arrived at Metsiamanong at 5 p.m. on the 5th July 2004. At Metsiamanong we observed adults and children; 5 to 6 compounds; one unoccupied old hut whose entrance was barricaded; some old huts while other huts were new or under construction; goats, chickens, ploughing fields; and women carrying firewood and building materials. One man who was said to be a former Councillor introduced himself to us as Moeti Gaborekwe at the entrance of his compound. We spent the night in tents at Metsiamanong. In the morning of 6th July 2004 before the Court left for Molapo at 8:30 a.m., the Applicants and their Counsel invited residents of the compounds to the Court’s camp and we observed about 30 to 35 adults and 15 to 17 children who turned up at our camp.
(f) We arrived at Molapo around 12 noon. At Molapo there were men, women and children, in all about 11 adults and 8 children. We saw a man holding wild succulents and a wild tuber which he said was for human consumption; a hut full of melons (marotse); 19 to 20 huts with some huts under construction; personal possessions on top of some huts; dogs, chickens, donkeys, kraals, and goats; hats and towels the Respondent’s representative alleged had been distributed to residents of New Xade recently; and two motor vehicles. We left Molapo at 1:30 p.m. and not far from there came across another set of huts which was said to be part of Molapo settlement, and a dry pan a kilometre from Molapo where there were some empty 200-litre drums. We also observed that at Molapo, like at Metsiamanong some people had recently arrived because some huts had recently been constructed while others were under construction.
(g) At 4 p.m we arrived at a place called Xaka where we saw a solar-powered borehole for wildlife and a pan with water, the source of which was the borehole.
(h) The Court arrived at Old Xade after sunset where we
spent the night in tents having traversed what at times
was the most difficult terrain on earth. We conducted the
inspection the following day starting at 9 a.m. and finished at 9:35 a.m. At Old Xade we observed a borehole; buildings, some under construction, some under repair and some in disrepair; a two-block dilapidated building that used to be a clinic and adjoining building described to the Court as the nurse’s residence; an old primary school comprising of four blocks, four classrooms, and a cooking area; a standpipe and water reservoir; newly constructed offices for DWNP; DWNP camp with showers, where we even showered, and toilets; a cooperative shop; and a kgotla which comprised a corrugated iron-roofed structure.
(i) When we finished at Old Xade on 7th July 2004, we travelled to New Xade, some 60 kilometres away and 40 kilometres from the western boundary of the CKGR in the Ghanzi direction. At New Xade we drove around the village and made the following observations – The Kgotla which is a modern building with offices staffed by the Chief, police officers and court staff; a primary school comprising seven blocks of buildings; children in school uniform playing in the school playground; an 80m x 80m fenced horticultural project yard where there were ripe tomatoes; a reservoir into which water was pumped; community hall of the type found in many villages in Botswana; modern houses with paved front yards for extension workers; a church, clinic with maternity ward, out patient consulting rooms, dressing room, dispensary, registry etc.; hostels for school children where the Court would be sitting; a bar which had a man and woman as the only customers, a shop; and a bottle store which appeared to be closed.
At New Xade we also drove to Kikao Ward where we observed a Kgotla, various huts, one-roomed concrete houses similar to the ones observed at Kaudwane; horses, cattle; children in school uniform; non-school
going children, and adults; standpipe and square yards.
At Metsiamanong Ward in New Xade we observed huts similar to those at Kikao Ward; corrugated iron-roofed houses; children and adults; cattle, goats, chickens, and square yards as opposed to round or oblong yards found in the CKGR.
Molapo Ward had similar huts and houses as Kikao and
Metsiamanong Wards but there we also saw the biggest residential house with indoor plumbing. We further observed square plots, some with wire mesh and pole fencing; chickens, cattle and goats.
At the cattle kraals there were people, cattle, goats and donkeys, watering troughs, loading ramps, and crushes. The source of water for the residents of New Xade and livestock was said to be a borehole 20 kilometres from that village.
Although the Applicants’ legal representatives opposed the inspection of settlements by the Court in the CKGR, their Counsel has now conceded that it was a valuable exercise because it gave the Court “….. an impression of the physical location of the settlements and the difficulties which confronted the residents which otherwise we might not have known.” (vide page 8482 of Record of Proceedings Vol. 20). When we inspected the settlements we traversed some very difficult terrain and passed some desolate areas as well as observing some of the harshest conditions in the CKGR.
8. An application was made by the Respondent on 14 June 2005 for the Court to visit Gope to conduct an inspection in loco. Gope is a place from which some of the Applicants, including PW4, allege they were forcibly relocated and where some prospecting for minerals had previously been carried out. The issue of mining at Gope was raised by the Respondent in the supporting affidavits of Dr. Nasha and Dr. Tombale (DW3) who were the Minister of Local Government and Permanent Secretary to the Ministry of Minerals, Energy and Water Affairs respectively although the Applicants had not referred to mining in the founding and supplementary affidavits. In the application Counsel for the Respondent submitted that the Respondent had raised the issue of mining at Gope because it was “plain to us that although the Applicants had not said anything about it in their originating papers ….. it was an issue possibly tactically left to discussion in the press and to discussion elsewhere but kept out of the court case” (vide Vol. 20 at page 8492 of Record of Proceedings). He told the Court that the First Applicant was constantly discussing that issue in the press by saying that the residents of the CKGR believed they had been relocated to give way to mining while at the same time having declined to take the witness stand to testify so that his allegations could be tested in open Court. He drew the attention of the Court to the evidence of Mr. Albertson (PW9) who had talked about mining in Gope by testifying that the attraction of the mine (at Gope) caused people to stay at that site for longer periods than they would have done in the past. I have also noted that in their admissions of 22nd February 2006, the Applicants state that they do not admit the second sentence in paragraph 8.8 of Dr. Nasha’s affidavit (Exhibit D125) in which she alleges that “So there is no link of the relocation to the diamonds.” This denial by the Applicants shows that they contend, although not in so many words, that the relocation is linked to the mining of diamonds at least at Gope, and lend support to First Applicant’s allegations referred to by Counsel for the Respondent that the mining of diamonds in the CKGR is linked to the relocation of the Applicants. The Respondent therefore asked the Court to visit Gope to confirm that there was no mining of or preparations to mine diamonds at Gope.
9. Counsel for the Applicants opposed the application mainly on the ground that the Applicants had not pleaded that issue, but when he was asked by the Court on the 8th August 2005 when preparations were being made to visit Gope to confirm that as a fact there was no mining at Gope or preparations to mine he would only say that there were no such as at April 2004 (vide Vol. 20 at page 8492 of Record of Proceedings). As Counsel for the Applicants could not unequivocally go on record to confirm that there was no mining or preparations to mine at Gope, the Court visited Gope to conduct an inspection. At Gope the Court observed some matlotla but no sign of people or evidence of their presence. The Court also observed that there was an abandoned rehabilitated mining site and no signs of mining or preparations to undertake mining operations at Gope. I should point out that the allegation that the First Applicant was running articles in the press during the trial to the effect that the mining of diamonds in the CKGR was one of the reasons why the government was relocating the residents of the CKGR is true and was in fact not denied by the First Applicant, who also strangely even stated that he did not have confidence in the manner the Court was handling this case, which statement resulted in his apology to the Court through his Counsel. I must also state that Counsel for the Applicants has told the Court that it is not part of the Applicants’ case that they were relocated from the CKGR by the Government in order to give way to the mining of diamonds in the Reserve. Furthermore, as a fact, the Court found when it conducted an inspection at Gope in the CKGR, where prospecting and testing for diamonds had previously been carried out, that the mining site had been rehabilitated and abandoned and that there was no mining or any sign of preparations to mine diamonds at Gope. The evidence of Dr. Akolang Tombale (DW3) who was the Permanent Secretary in the Ministry of Minerals, Energy and Water Affairs that no mining has ever taken place in the CKGR and that the diamond deposits discovered at Gope during prospecting have been found to be uneconomic has not been disputed by the Applicants. I therefore find that evidence to be truthful.
10. Where the Court hearing a matter instituted by way of application supported by affidavits takes the view that there are serious disputes of fact which cannot be resolved on affidavits, it may refer that matter to oral evidence. In referring the matter to oral evidence, the Court may give directions in regard to the issues to be determined or decided at the hearing of the oral evidence by defining those issues. In casu, that is what the Court of Appeal has done. In situations where the Court refers a matter to oral evidence, it is not uncommon for the Court to direct that affidavits filed at that time should stand as pleadings. However, even if the Court, in its referral of a matter to oral evidence, does not specifically direct that the affidavits should stand as pleadings, in my view, the effect of such referral would still be the same in regard to the filed affidavits, namely that the affidavits filed by the parties at the time of referral to oral evidence together with any further affidavits and statements which that Court may grant leave to the parties to file stand as pleadings unless the Court directs to the contrary. The result in those circumstances is that, subject to admissions of all or some of the contents of the said affidavits or statements by either party, all the allegations not admitted in such affidavits and statements have to be proved by a party upon whom the burden of proof lies at the hearing of the oral evidence. In this matter, it is common cause that once the dispute was referred to the hearing of oral evidence, all the affidavits and witnesses’ statements filed of record stood as and became pleadings with the result that all allegations contained therein, unless admitted by either party, had to be proved on a balance of probabilities to enable the Court to make a determination of the issues defined by the Court of Appeal in its order of 23 January 2003 reproduced above.
11. Before turning to the issues, I must point out that the First Applicant has elected not to go into the witness box to testify and be cross-examined by the Respondent. The First Applicant, as leader of FPK, is the person who instituted these proceedings on behalf of the residents of the CKGR by filing several affidavits in which he made detailed allegations in an endeavour to show that the residents and Applicants of the CKGR had been forcibly relocated to Kaudwane and New Xade by the Government. Once the matter was referred to oral evidence all the allegations contained in the First Applicant’s affidavits that have not been admitted had to be proved. As the First Applicant has not testified to the unadmitted allegations in his affidavits, Counsel for the Applicants has correctly conceded that such allegations do not constitute evidence. During the course of his submissions and in response to questions from the Court of the 5th September 2006, Counsel for the Applicants told the Court that the affidavit of Mr. Sesana “ought to be treated as in effect a pleading but no more and no less than that.” The allegations in the first Applicants’ affidavits are therefore not evidence and remain bald allegations which have not been proved and tested under cross-examination. The record will show that the decision by the Applicants not to call the First Applicant and Alice Mogwe of Ditshwanelo, both of whom alleged in their affidavits that they were present and saw what happened at some of the settlements during the relocations of 2002, to testify was confirmed by Counsel for the Applicants in open Court in response to questions from the Court before he closed the case for the Applicants, (vide pages 4768 and 4769 of record of proceedings Vol. 11). Further, during his submissions on the 5th September 2006, Counsel for the Applicants gave as a reason for not calling the First Applicant that “a view was taken on the basis of the length of time that was required to cross-examine other witnesses of fact called by the Applicants, and the view formed was that if and when Mr. Sesana went into the witness box, the length of the trial was likely to be extended by several weeks and that was something we simply could not afford to happen.” I find it disingenuous on the part of the First Applicant to continue to make allegations that the Applicants were relocated by force in order to give way to mining of diamonds in the CKGR while at the same time having chosen not to testify in the case which he had himself instituted so that his allegations could be tested in open court.
Although the First Applicant as a party to these proceedings has
decided not to go into the witness box to give evidence, it is
unfortunate that during the trial when he made comments to the media, which were not disclaimed by him and which he was entitled to make, about the alleged forcible removal of the Applicants from the CKGR by the Government, he went out of his way to malign and cast aspersions on this Court to the extent that at one point his Counsel had to apologise on his behalf to the Court for what were undoubtedly disparaging comments by him in May 2005 about this Court in its conduct of this case. The Attorney for the Applicants, Mr. Boko, who hardly attended court proceedings, at one point in this trial also engaged in this pass time, which seems to have become fashionable these days in this country, to the extent that he was called to order by this Court. I must affirm that it is indisputable and totally acceptable that citizens and residents of this Republic have a fundamental right enshrined in the Constitution to express their views freely and without fear or
interference and that this Court will, where appropriate, protect that right where it is sought to be stifled. The First Applicant and his Attorney were not the only persons who were responsible for these misdemeanours. During this trial, I noted a very disturbing tendency or trend by some public figures or institutions who set out to also disparage and malign this Court; some of them did not even attend court proceedings to hear first hand what was happening before engaging in uncalled for attacks on the Court or deliberately distorting what was happening in Court. One does not know why those public figures or institutions chose to conduct themselves in that manner. However, a clear signal must issue forthwith and all and sundry must be warned that this Court will not, as it became abundantly clear during the trial, stand idly by when its dignity is being maligned, in the discharge or exercise of the functions conferred upon it by the Supreme Law of this Republic, namely, the Constitution. Let none complain when appropriate action is taken against them for bringing this Court
into disrepute irrespective of who they may be.
12. Several interim matters arose during the course of the trial as was to be expected in such a long trial. One such matter arose in August 2005 when the Respondent sought to use and produce a report prepared by Dr. Alexander, (DW6) who was testifying about the effect of diseases in domestic animals on wildlife in game reserves and national parks. What happened was that during the court recess in July 2005, there was an outbreak of disease called sarcoptic mange in some goats in the CKGR and at that time, Dr. Alexander happened to be in the Reserve. As a veterinary doctor, she examined some of the goats and prepared a report on the possible effect of that disease on wildlife in the CKGR. One of the factors which was interesting and occupied a considerable amount of the time of the Court but which was, in my view, peripheral to the determination of the issues in this matter was the presence of domestic animals in the settlements inside the CKGR which was
alleged to constitute a disturbance factor to wildlife because domestic animals some time transmit disease to wildlife and vice versa. I do not think that anybody in this country can dispute that disease is sometimes transmitted from domestic animals to wild animals and vice versa; for example, buffaloes are known to transmit foot and mouth disease to cattle and foxes transmit rabies to domestic dogs which when infested with rabies sometimes bite human beings and transmit rabies to them with disastrous consequences. The reason, however, why I say this factor was peripheral to the issues to be determined by this Court is that the evidence that has been led shows that the presence of livestock or domestic animals was never given or put forward to the residents of the settlements in the CKGR as one of the reasons why they were being asked to relocate from the CKGR to the new settlements outside the
Reserve prior to the February 2002 relocations.
13. The Report on the outbreak of the disease in the CKGR had
been prepared without invitation to and participation by the representatives of the Applicants and after the Applicants had closed their case. Counsel for the Applicants objected to the use of that report mainly on the grounds that the Applicants had closed their case and would be prejudiced if the Respondent was allowed to use it as they would not be able, procedurally, to adduce any rebuttal evidence to counter the contents of the report. The Court upheld the objection by a majority of two to one. I am the one who held the minority view that that report could be used by the Respondent. My reasons for that view were that as Dr. Alexander was still testifying in chief, the Applicants’ Counsel would have the opportunity to cross-examine her on the contents of the report and, secondly, that even though the Applicants had closed their case they could still be granted leave, if they so wished, to call evidence in rebuttal of Dr. Alexander’s opinions arising from or in that report on the effect the outbreak of disease in goats in the CKGR was likely to have on wildlife. In my view, in that event, the Applicants would not be prejudiced by the fact that Dr. Alexander had testified on the outbreak of disease on domestic animals in the CKGR after the Applicants had closed their case. On another matter, I would like to state that one of the services in the form of the provision of transport for the children to and from school of the Applicants and residents who never relocated is not in issue because evidence that has been adduced by both parties shows that that service has never been terminated; in fact Minister Pelonomi Vension (PW13) testified that the Government took the decision to continue with that service because it did not want the children whose parents did not relocate to be disadvantaged by not having access to education. Furthermore, even though from the pleadings and the order of the Court of Appeal the date for the termination of the provision of services to the Applicants in the CKGR is put as 31st January 2002, in my view, there is no evidence that the services were terminated on that date. On the contrary, the evidence shows that the services, especially water, continued to be provided during the relocations and that they were finally terminated in or about 4 March 2002 when the Ghanzi District Council Secretary gave written instructions to the Council Water Affairs Department to seal the borehole at Mothomelo, collect the engine and pump house, and to remove all water tanks from all the settlements in the CKGR (vide Exhibit P152 in Bundle 3C at page 105).
I now turn to the issues defined by the Court of Appeal for
determination by this Court.
14. A. Issue Number 1 (a) – Was the termination of the provision of basic and essential services to the Applicants in the Central Kalahari Game Reserve unlawful and unconstitutional?
This is the first issue that calls for determination by this Court
in terms of the order of the Court of Appeal of the 23 January 2003; it was also the first issue that the Applicants wanted the Court to decide in terms of their original notice of motion filed on the 19 February 2002 where at paragraph 2(a) thereof they sought a declarator that the termination of basic and essential services in the CKGR by the government was unlawful and unconstitutional.
15. The issue whether the termination of basic and essential services (services) was unlawful and unconstitutional is dealt with at paragraphs 718 to 826 of the Applicants’ written submissions. Their reasons for the contention that the termination of services was unlawful and unconstitutional are set out or summarized succinctly in the following terms:-
“718. We submit that the basic and essential services were terminated unlawfully or unconstitutionally on one or both of the following grounds:
that the Applicants enjoyed a legitimate
expectation that they would be consulted before their services were terminated, but they were not consulted.
that the termination was a breach of the
National Parks and Game Reserve Regulations 2000 (“the 2000 Regulations”).”
The unlawfulness and unconstitutionality of the termination of services in the submission of the Applicants is based on two grounds in regard to issue number one; namely, the doctrine of legitimate expectation and the breach of the 2000 National
Parks and Game Reserve Regulations.
16. At paragraph 719 of the Applicants’ written submissions, it is stated that:
“719. The law of Botswana recognizes that an administrative body may, in a proper case, be bound to give a person who is affected by its decision an opportunity of making representations, if he has a right or interest or legitimate expectation of which it would not be fair to deprive him without a hearing.”
They further submit at paragraph 726, and correctly in my
view, that “Consultation does not ….. require the decision maker to accept the views of those he consults. He may quite properly reject their views, as long as he takes them properly into account before doing so” (my emphasis).
17. They refer in their submissions on this issue to Regulation
18(1) of the National Parks and Game Reserve Regulations 2000 which provides that -
“Community use zones shall be for the use of designated communities living in or immediately adjacent to the national park or game reserve”
and submit that when the Department of Wildlife and National Parks prepared the Third Draft Management Plan (TDMP), which is Exhibit 7) it involved communities resident in the CKGR whose views it took into account and arrived at a mutually agreed proposal that Community Use Zones (CUZs) would be established within the CKGR for use by and benefit of the resident communities in clear recognition of the provisions of Regulation 18(1) quoted above. The process of formulating the TDMP is said, by the Applicants, to have involved the resident communities over a period of two years, but they contend that when the Department of Wildlife and National Parks (DWNP) purportedly refined the views expressed in the TDMP, it turned those views on their head which in their submission “made nonsense of two years of community consultations” supposedly intended “to ensure that the points of view and opinions of the communities are adequately represented in the Central Kalahari and Kutse Game Reserve Management Plan” (vide para. 777 of submissions).
18. In paragraphs 779 and 780, they submit that they had a legitimate expectation that the Government would take no steps which were intended or bound to subvert or undermine the process involved in formulating the TDMP, and that -
“In particular they (the Applicants) had a legitimate expectation that the Government would not withdraw services from the Reserve until it had considered on its merits a final Draft Plan which proposed CUZs for the communities still resident in the Reserve.”
At paragraphs 784 to 803 of their submissions the Applicants refer to or rely on the Ministry, Commerce and Industry Circular No. 1 of 1986 (Exhibit “P22”) which set out government policy on human settlements in the CKGR and submit, inter alia, that it is not in dispute that “the residents had a legitimate expectation that Government would comply with the terms of that policy” and further that –
“786. The 1986 Policy laid down two crucial propositions (that):
“viable sites for economic and social development should be identified outside the Reserve and the residents of the Reserve encouraged – but not forced – to relocate at those sites.” [para. 3.37]
“the Ministry of Local Government and Lands should advise Government on the incentives required to encourage residents in the Reserve to relocate.” [para. 3.4].”
19. In the submission of the Applicants, the crux of the 1986 Policy
was that even though the government would persuade the residents to relocate outside the reserve, it would nevertheless be left to the residents to decide whether or when they wished to do so; and that for the purposes of ensuring that the residents only relocated because they wanted to do so, the government would focus on the positive methods of encouragement to relocate to new sites rather than the negative aspects of relocating outside the reserve. In the contention of the Applicants -
“the 1986 Policy gave rise to a legitimate expectation that services would not be cut unless and until either the residents had relocated of their own free will or the Policy was revoked”
and further that –
“….. at the very least, the 1986 Policy gave rise to a legitimate expectation on the part of the Applicants that they would be consulted before the services were terminated,” (vide Paragraphs 797 and 798 of Applicants’ written submissions) (my emphasis).
20. The Applicants also rely on the National Settlement Policy of 1998 for the contention that the termination of the provision of services to them by the Government in the CKGR was unlawful and unconstitutional which Policy they maintain was in force when the decision to withdraw or terminate the services was taken. They submit that -
“It cannot be disputed that the Applicants had a legitimate expectation that they would benefit from the terms of the National Settlement Policy in the same way as they were entitled to benefit from the 1986 Policy,” (vide para. 807).
They argue further that under the 1998 National Settlement Policy, the settlements with a population of 150 to 249 people were to be provided with potable water while those with a population of less than 150 were to be provided with basic services on a mobile basis where feasible. They argue that because at the time of the 2002 relocations Mothomelo and Molapo had populations of 245 and 152 people respectively, they were entitled to potable water while the other settlements were entitled to basic services on a mobile basis if that was feasible.
21. In their submissions, they argue that there was no evidence that by August 2001, it was no longer feasible to provide basic services to the settlements in the CKGR as Mrs. Kokorwe had told the meetings she addressed because the Government or Ghanzi District Council had been providing such services for many years prior to 2001, (vide paragraph 811 of Applicants’ written submissions). However, at paragraph 815 of their
submissions they state that -
“815. We do not submit for the present purposes that it was not open to the Government to depart from the 1998 Policy, although that may be the position in law” (my emphasis).
But they maintain in the following paragraph that –
“….. the residents had a legitimate expectation that before the Government did decide to deviate or depart from the 1998 Policy it would genuinely consult them about the proposed decision.”
The Applicants further rely for their contention that the termination of services was unlawful and unconstitutional on Regulation 3(6) of the National Parks and Game Reserve Regulations 2000 which states that –
“In the absence of a management plan, the development and management of a national park or game reserve shall be guided by the draft management plan for the national park or game reserve, where such exists, or the instructions of the Director where such draft does not exist.”
It is the contention of the Applicants that in terms of this sub-regulation, government ministers were to be guided by TDMP when they considered whether to terminate the services but were not. The Applicants point out that one of the primary objectives of the TDMP was –
“….. to ensure that communities with traditional rights are able to benefit from the sustainable utilization of wildlife resources and to try to minimize conflicts between communities and the reserves” (vide para. 822.1).
The Applicants argue that the TDMP provided for the CUZs for
the resident communities in each settlement in the CKGR; and
also that one of the objectives of the TDMP was that the communities inside the Reserve would participate in and benefit from the future development of the Reserve which objective in their submission would be rendered meaningless if the communities ceased to exist in the CKGR as a result of the termination of the provisions of services to the Applicants therein by the Government.
22. The concept or principle or doctrine of legitimate expectation
has been accepted as part of our law. In MOKOKONYANE v. COMMANDER OF BOTSWANA DEFENCE FORCE AND ANOTHER [2000] 2BLR 102, the Appellant was, in terms of Regulation 4(5)(b) of the Defence Force (Regular Force) (Officers) (Amendment) Regulations 1996, given three months’ notice in writing that he was being compulsorily retired on the ground that there were no future prospects for his promotion in the force. Regulation 4(4) of the said Regulations gives the Commander of BDF a discretion to require any officer below the rank of Lieutenant – Colonel who has attained the age of 45 years to retire from the force. The compulsory retirement age in the BDF is 55 years. When the Appellant was given notice, he was 47 years and was not given prior notice of the decision to retire him nor was he given the opportunity to contest the decision. The Appellant applied to the High Court for an order to set aside the decision of the Commander of the BDF to retire him but the application was dismissed. He appealed to the Court of Appeal where it was argued on his behalf that he had a legitimate expectation that he would not be compulsorily retired until he reached 55 years and that if his retirement at an early age was being considered he would be advised of this and be given the right to be heard before the decision to compulsorily retire him could be made. It was further contended on his behalf that as he was not afforded such right, the decision to retire him was invalid and had to be set aside. It was held by Zietsman, J.A., dismissing the appeal, at page 107 F-G that:
“As was pointed out by Amissah, J.P. in his judgment in the MOTHUSI case, the claim of legitimate expectation and the claim of a right to be heard fall to be considered in relation to each other as the claim of legitimate expectation is the basis which gives standing to the claim of the right to be heard. His judgment deals fully with the legitimate expectation principle which has been accepted as being part of the law of this country,”
and further on same page at letters G-H that:
“The essence of the principle (of legitimate expectation) is the duty to act fairly, and to give a person the right to be heard before a decision is made by a public official which decision may prejudicially affect the person in his liberty, his property, or his rights, unless the statute empowering the public official expressly or by implication indicates to the contrary” (my emphasis).
The principle of legitimate expectation, I should stress, is founded on fairness in that public authorities or officials are expected to act fairly when they make decisions which are likely to affect or prejudice the interests of other people. In MOTHUSI v. THE ATTORNEY GENERAL [1994] B.L.R 246 Amissah, J.P. (as he then was) at page 260 A-C described the principle of legitimate expectation thus –
“The concept of legitimate expectation has developed in administrative procedures to protect those who have been led either by contract or practice to expect a certain course of action in cases where the expected course of action has been altered without giving them the right to make representations. Starting from a procedural concept by which the requirement of natural justice could be brought into operation, it has been in some cases ….. not merely to cover the procedural concept, but to require the fulfillment of a promise made by authority.”
23. In BOTSWANA RAILWAYS WORKERS UNION v. BOTSWANA
RAILWAYS ORGANISATION [1991] B.L.R. 113 Howitz, Ag.J, as
he then was, had occasion to deal with the concept or principle
of legitimate expectation and said at page 121 B -
“The concept of a legitimate expectation has its origins in a determination to control and bring within judicial review arbitrary and unfair decisions of administrative public authorities. This (concept of legitimate expectation) has resulted in an extension of the doctrine of audi alteram partem which is an important aspect of the duty to act fairly,”
and the learned judge went on to state at page 122 B that –
“A person whose claim falls short of a legal right may nevertheless be entitled to some kind of hearing if the interest at stake rises to the level of a “legitimate expectation” of which it would not be fair to deprive him without hearing what he has to say. Put another way, it is one aspect of the duty to act fairly.”
He further quoted what Lord Fraser said in COUNCIL OF CIVIL SERVICE UNIONS AND OTHERS v. MINISTER FOR THE CIVIL SERVICE [1984] 3 ALL E.R. 935 at page 944 A-B when discussing the circumstances or situations under which the doctrine may become applicable that -
“Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue”
and further referred to the caution by the same judge that –
“The limits of the doctrine of legitimate expectation ….. must be clearly understood as there is a tendency to elevate mere expectation into a right.”
24. In my view, the issue of termination of services is the most important of them all because it triggered all the other issues or events that followed; its importance is borne out by the fact it is issue number one in both the Applicants’ notice of motion and the order of the Court of Appeal. The thread running through all the Applicants’ contentions that the termination of services was unlawful and unconstitutional is that they were not consulted before the decision to terminate the services provided to them in their settlements in the CKGR was made notwithstanding that they had a legitimate expectation that the government would consult them before making such a decision which was likely to adversely affect them or their interests or to prejudice them. The Respondent maintains that the residents of the settlements in the CKGR were consulted before the services were terminated and has adduced or placed evidence before the Court in an endeavour to show that consultations took place over a number of years before the provision of services to the residents in the CKGR was finally terminated in early 2002.
25. The burden of proof is on the Applicants to prove that the
government did not consult them before the services were
terminated; that burden of proof in our civil proceedings is required to be discharged by the Applicants on a balance of probabilities. The basic principle in civil proceedings on the onus or in regard to the burden of proof is that he who alleges must prove (my emphasis). The Respondent, it must be stressed, bears no burden to prove that the government consulted the Applicants before terminating the services in the absence of any evidence by the Applicants showing that they were not consulted before the services were terminated. It is only when the Applicants have placed evidence before the Court showing that they were not consulted that it becomes necessary for the Respondent to adduce evidence in rebuttal to prove that the government consulted the Applicants before terminating the services. The standard of proof required of the Respondent in that rebuttal evidence is also on a balance of probabilities.
26. As I have already stated, a strong and consistent thread
running through the Applicants’ submissions in support of their
contention that the termination of services was unlawful and unconstitutional is that they had a legitimate expectation that the government would consult them before the decision to terminate the provision of basic and essential services provided to them in their settlements in the CKGR was made, which consultation they maintain was not done. I pause here and observe that in their founding affidavit, the Applicants allege an ulterior motive on the part of the government as the reason for terminating the services, and that allegation is foreshadowed in paragraphs 79 to 85 of the First Applicant’s founding affidavit wherein he alleges, inter alia, as follows:
“ ULTERIOR MOTIVE
79. (a) I am advised that the decision by the Government to cut all services to the residents of the CKGR is motivated by an ulterior motive. The Government engaged the representatives of the residents in the negotiations for the implementation of the community based natural resource management programme over a period of ten months.
(b) These negotiations led to the conclusion of an agreement on the extent of community use zones boundaries within which the residents of the CKGR might utilize its natural resources.
The Government was clearly angered by the campaign waged by Survival International. As its response to this campaign, the Government has decided to violate the most basic human rights of the residents (and the Applicants) of the CKGR. It intends to deprive the Applicants, who intend to claim their land and residence rights within the CKGR, of their rights to be provided with water, food rations, basic health care and access to education. These services are provided to other citizens of the Republic of Botswana irrespective of whether they exercise rights of ownership to land.” (my emphasis)
At the trial, however, no evidence was adduced by the Applicants to support these allegations of ulterior motive on the part of the Government for terminating the services with the result that they remain bald allegations as they are unproven. Further, no explanation has been proffered by the Applicants as to why they have not led evidence to prove these allegations of ulterior motive as a reason for terminating the services in the CKGR on the part of the Government.
27. The Applicants’ contention that they had a legitimate expectation that they would be consulted before the services were terminated but were not is foreshadowed in paragraphs 90 to 92 of First Applicant’s founding affidavit in the following terms:
“LEGITIMATE EXPECTATION
90. I am advised that not only do the Applicants have a constitutional right to be provided with the services referred to ….. above, which we have always been provided with, but the Government has created a legitimate expectation in the minds of the Applicants that it would continue to provide these services.
91. The Government has not informed the Negotiating Team that it intended to terminate the services ….. The Government only sought to communicate its decision to the Applicants during the week commencing Monday, 21 January 2002. The only other manner in which the Government has attempted to communicate this decision, was by making announcements in the press and by announcing the decision at the opening of Parliament in October 2001.
92. Accordingly, as the Government had created a legitimate expectation in the minds of the Applicants that it would continue to provide the services to them, the Government had a duty to consult properly with the Negotiating Team and Applicants before taking its decision to terminate the provision of these services. By its failure to do so, I am advised that the Government has acted unlawfully and that its decision to terminate the above services is invalid” (my emphasis).
28. I am persuaded by the argument and accept that the Applicants had a legitimate expectation that the government would consult them before the decision to terminate the provision of services in their settlements in the CKGR was made. The Applicants have, however, argued strongly that they were not consulted before the decision to terminate the provision of services in the CKGR was made by the government; hence their contention that the termination was unlawful and unconstitutional and should be quashed by this Court. I have already set out above what in my view is the law governing the concept or doctrine of legitimate expectation or what I believe are the circumstances under which such a principle or doctrine or concept may arise or become applicable by referring to the case law where our Courts have described or defined what the doctrine of legitimate expectation is or what it entails. I shall now proceed to examine whether the Applicants’ contention that they were not consulted before the termination of services is supported by the evidence which has been placed before this Court, always bearing in mind that the burden of proof is on the Applicants to prove, not beyond a reasonable doubt but on a balance of probabilities, their allegation that they were not consulted before the decision to terminate the provision of services in the CKGR was made by the government.
29. I must point out and state that none of the witnesses of fact who gave evidence for the Applicants testified that the government did not consult the residents or Applicants before the decision to terminate the provision of services to the Applicants was made and no explanation was put forward by the Applicants to the Court why this was so, especially when regard is had to the fact that the Applicants had pleaded that allegation and that it was denied by the Respondent. Given this denial in the pleadings by the Respondent which the Applicants were very much aware of, one would have expected that the Applicants would lead and place direct evidence before the Court to prove that the government did not consult them before it made the decision to terminate the provision of services in the CKGR. What comes out clearly is that their contention that they were not consulted before the decision to terminate the services was made is not supported by the evidence before this Court. The evidence of the Applicants and the government shows that they were as a matter of fact consulted before the decision to terminate the services was made, and further that as a fact the Applicants were aware that the provision of services would be stopped or cut at some date or time in future.
30. In terms of Government Circular No. 1 of 1986 (Exhibit “P22”) issued through the Ministry of Commerce and Industry, the Government took a policy decision that social and economic development of human settlements should be frozen or stopped within or inside the CKGR. It was in that policy that the Ministry of Local Government and Lands was directed to identify viable sites outside the CKGR for economic and social development to which the residents of the CKGR were to be encouraged but not forced to relocate. My understanding is that the Applicants are not challenging the 1986 Government Policy in these proceedings that there should be no economic and social development in the settlements inside the CKGR. Indeed, if they were challenging that policy and wanted the Court to review the decision of the Executive arm of Government to adopt that policy they would have to prove that that policy was unreasonable or irrational in a constitutional democracy where the Constitution provides for separation of powers between the three arms of government and where the formulation of policy is a function of the Executive arm of government, and where the policy adopted by the Executive may only be reviewed by the Courts generally where it can be shown that the policy in question is unreasonable or irrational.
31. My position or view that the government consulted the Applicants before it made the decision to terminate the provision of services in the CKGR is supported by the evidence of some of the Applicants’ witnesses in the following respects -
(a) Tshokodiso Bosiilwane, who testified as PW3 and was one
of the Applicants states that:
“The government has been talking to us for about 15 years. The government has been consulting us for 15 years and we have never come into agreement with government but now we are given six months” (vide page 451 to top page 452 in Vol. 2 of record of proceedings)
and further at page 453 that –
“Without depending on government we can
continue to live the way we used to live (on) the food that God provided us with. We would depend on cucumber, moretlwa, and all other fruits that we have been depending on” (my emphasis).
Further, when PW3 was asked how he felt when he learnt
that the government would terminate the provision of services within six months he replied –
“I just said whatever government wants to take away it is their property, they can take it away and I will give up as I have already given up.” (vide page 453 Vol. 2 of the Record of Proceedings)
At page 526 he states that he was not complaining about the government taking away the services. Finally, PW3 told the Court at page 539 of the record that it was during the consultations that he told the government that they (the residents) did not accept to be relocated outside the Reserve and preferred to be relocated within the Reserve nearer to Metsiamanong.
(b) Motsoko Ramahoko (PW4) was asked when he gave evidence-in-chief what his response was when Assistant Minister Kokorwe told the residents at Metsiamanong that the provision of services would be stopped in six months and his answer was:-
“I said if you do cut your services, we do not care and we are not moving from our land.” (vide page 637 Vol. 2 of Record of Proceedings) (my emphasis)
Furthermore, at pages 693 to 694 of the record of the proceedings (Vol.2) PW4 after having earlier accepted that since the 1980s parties of people had been coming to Gope urging residents to relocate was asked and answered under cross-examination as follows:-
“Q: They had been told many times before that at a certain date the services would cease. So they had plenty of warning?
A: Yes, we know that the government had been telling us that we should relocate and at times they would take away their services, but what we said was that they can go away with their services and water and leave us alone on our land because we had been surviving in that land without government providing services.” (my emphasis)
32. In some of their formal admissions, the Applicants have unreservedly admitted that they were consulted by the government before the 2002 relocations after being called upon by the Respondent to make admissions. I should in fairness to the Applicants point out that some of their admissions were made with reservations. However, the following are examples of admissions made by the Applicants without any reservations:
(a) The witness statement (Exhibit “D157”) of Gasehete
Leatswe, appearing at pages 718 to 719 in Bundle 3B, which is as follows:
“1. She is an adult female, currently a Councillor of Karakubis in Gantsi District.
2. From 1999 to 2001, she was the Ghanzi District Council Chairperson and was, in that capacity, involved in consultations in respect of relocations which included advising residents that the provision of services within the Central Kalahari Game Reserve would eventually be stopped as it was unsustainable. Her involvement included frequent visits to and addressing residents of settlements within and outside the Reserve.
3. Consulting residents on the above matters was the main purpose of the visits into the Reserve. She had been involved with the consultations both before she became and after she ceased to be Council Chairperson.
4. While some residents were opposed to relocating, most were keen on doing so as they come to realize that life in the Reserve had no future. She interacted with many residents at a personal level” (my emphasis).
(b) Ghanzi District Council Relocation Task Force Inquiry Report dated 9th December 2002 (Exhibit “P93”) appearing at pages 83 to 91 in Bundle 2B. This Report has been admitted by the Applicants in their “Admission of Facts” Notice filed on 27th February 2006. It is common cause that the Report was produced by a Task Force set up by the Ghanzi District Council to investigate why the residents who previously relocated from the CKGR to the settlements outside the Reserve were going back to the Reserve. At page 87 of the Report under the heading “Findings” it is stated, inter alia, that -
“From the data analysis, it was clear that some people never relocated and they are still not prepared to relocate. They stated the following reasons for their resistance:
- They confirmed that intensive consultation was done through all possible modes, but they did not and do not understand why wild animals should prevail over human beings …..” (my emphasis).
(c) Witness’ statement (Exhibit “D156”) of Walter Mathuukwane which appears in Bundle 3B at pages 716 to 717. The Applicants have unequivocally admitted the following from his statement -
“1. He is an adult male and currently a Councillor at the Ghanzi Township West. He has been a Councillor since 1989, and Council Chairman from 1995 until 1999.
2. From 1983 – 1989 he was a member of
the Ghanzi Land Board and at one time he held the Chairmanship of the Land Board.
4. By virtue of his position as a Land Board Chairman and Council Chairman, he was personally involved in a series of consultations with residents of the CKGR whose purpose was to persuade them to relocate to places outside the Reserve. The consultations took the form of holding meetings with the CKGR residents at some and sometimes all their settlements within the Reserve.
5. In some of these meetings, the witness accompanied Government Ministers, including Minister Ngwako about 1986/87 who went to the CKGR to hold consultations with the residents.
6. On another occasion he accompanied Honourable Patrick Balopi, then Minister of Local Government and Housing, on a consultative meeting with the residents of the CKGR. The witness will confirm that various other meetings were held with residents of the CKGR for the purpose of encouraging residents to relocate …..., and advising them that the provision of services was not sustainable and could not be a permanent feature.
7. …..
8. Following series of consultations, some residents voluntarily relocated while others remained in the CKGR. The first relocations started in 1996. The consultations and effort to persuade continued in regard to those who refused to move out of the CKGR” (my emphasis).
They have admitted a portion of Statement (Exhibit “D159”) of Lewis Malikongwa, D.C. for Kweneng District, that his task force addressed a series of meetings of the residents of Mothomelo, Kikao and Gugamma at which “….. residents (who attended such meetings) were advised of the Government’s decision to terminate the services in the near future” (my emphasis).
Part of the Statement (Exhibit “D143”) of Assistant Minister Kokorwe relating to consultations with the residents of the CKGR has been unequivocally admitted by the Applicants and she states that -
“5. The residents of the Central Kalahari Game Reserve were consulted extensively since the early mid 1980s. The consultations pointed out the advantages and benefits of relocating, and the fact that the provision of services within the Reserve could not go on indefinitely and would have to be stopped at some stage …..” (my emphasis).
In her kgotla meetings at Metsiamanong and Mothomelo in August 2001, the recordings of which have been admitted without reservation by the Applicants at paragraph 16.5 of their admissions filed on 27th February 2006, Assistant Minister Kokorwe states that the government had been discussing the issue of relocation of the residents of the CKGR outside the Reserve for 15 years and that consultation had been going on since 1986. At page 996 in Bundle 3B (Vol.2) she enumerates the services that the Ghanzi District Council had been providing to the residents of Metsiamanong and then proceeds to state, inter alia, that:
“At the end of each month, expenditure in these services, which the District Council brings to you, amounts to P55,000.00. Expenditure exceeds this figure, taking into account the fact that the vehicles break down and have to be repaired. In view of this therefore, it is necessary that consultation which has been going on since 1986 should not continue indefinitely; there has to come a stage whereby people say, we have consulted enough, we now agree to stop. It is in the view of this ….. that I have come to tell you that we request you to make a decision within six months from August to the end of January next year. This means you have six months to yourselves to decide ….. All we have come to tell you is that consultation has been going on for a long time and that, the District Council’s assessment of expenditure, which they incur every month, is such that it retards developments in other parts of the district, therefore, from January next year they will stop bringing water and other services; you should understand me in the proper context that these services will continue to be available, except that they will be provided at New Xade and Kaudwane” (my emphasis).
The admitted tape recordings of Assistant Minister Kokorwe’s meetings at Mothomelo in August 2001 also show that at that settlement she repeated similar statements to the residents that consultation had been taking place since 1986. She told the residents at Mothomelo that they were being given six months’ notice that the delivery of services to them inside the Reserve would be stopped and all this has been admitted by the Applicants.
33. In my judgment, the examples I have cited above show and demonstrate that the government consulted the Applicants and residents of the settlements inside the CKGR extensively before it made the decision to terminate the provision of services to the Applicants. It has been argued that the termination of services was unlawful or wrongful as it was preceded by the Government’s prevarication in that the Government had consistently given assurances prior to the announcement in August 2001 that the services would not be withdrawn as long as some people continued to live in the settlements in the CKGR. It is argued on behalf of the Applicants for example that on 22nd – 23rd May 1996 the Government representatives assured the Ambassadors of Sweden, The United States, Britain, Norway and an official of the European Community that “social services to people who wish to stay in the Reserve will not be discontinued” (vide Exhibit P23); that on the 4th June 1996 the Minister of Local Government repeated that “Services presently provided to the settlements will not be discontinued” (vide Exhibit P23); that on the 18th July 1996 the Acting Permanent Secretary in the Ministry of Local Government circulated a paper to other government departments stating that “The current residents of the CKGR will be allowed to remain in the Reserve and the current Government services will be maintained, though no new services will be provided” (vide Exhibit D193); that on the 16th September 1997 the District Commissioner, Ghanzi and Ghanzi Council Secretary wrote a letter (Exhibit D64) to the Botswana Guardian Newspaper stating that “The Government’s position is that services will continue being provided for as long as there shall be a human soul in the CKGR”; and lastly that in April 2001 Dr. Nasha was reported to have told Mmegi Newspaper that “She did not approve the Ghanzi District Council Motion calling for the cutting of essential services” and that the motion “served to circumvent her Ministry’s plans” (vide Exhibit P29). It is submitted very strongly that the decision of the Government to terminate the provision of services to the residents in the CKGR placed it in breach of these assurances, thus rendering that decision wrongful or unlawful.
I have noted that, save for what is attributed to Dr. Nasha in
April 2001 and to which I shall revert shortly, these assurances were made in 1996 and 1997, some four years before the decision to terminate the services was made in 2001 and most of them even before the first relocations in 1997. I do not understand the Applicants to be saying that the Government was not entitled to change its position or policy that services would continue being provided as long as there were some people living in the CKGR; indeed if that were so, it would run counter to their contention elsewhere that they had a legitimate expectation that before the services were withdrawn they would at least be given reasonable notice to make alternative arrangements for the supply of basic services to them; further they have stated at paragraph 815 of their submissions that they do not submit for the present purposes that it was not open to the Government to depart from its policy, although there they were referring to the 1998 Policy, but that they had a legitimate expectation that before the Government decided to deviate or depart from its policy it would genuinely consult them. There is no doubt that in the words quoted from the Mmegi Newspaper above, Dr. Nasha was reacting to the resolution of the Ghanzi District Council but in my view it will be a mistake to read those words in isolation, instead the article should be read as a whole to appreciate the true import of what the Minister is reported to have said because in the same article she is also reported to have said that she did not understand what the article was about as she was on leave and that the issue (of termination of services) had long been settled and “Basarwa had moved to New Xade and Kaudwane.” In my view, if there was any doubt that the Government was not equivocating on the issue of termination of services that doubt was put beyond doubt by the President at the opening of Parliament in October 2001 when he confirmed the Government decision to terminate the provision of services to the residents of the settlements in the CKGR with effect from the 31st January 2002, and in the letter (Exhibit P32) Dr. Nasha wrote to Ditshwanelo on the 7th January 2002 after the latter had written in December 2001 requesting an extension of the deadline to terminate the provision of services. In her letter (Exhibit P32) Dr. Nasha states in no uncertain terms at paragraph 3 thereof that:
“I am to inform you that the decision to terminate services to the CKGR will not be reversed.”
In my view, it is clear that once the Government took the decision and then announced in August 2001 that the provision of services to the Applicants in the CKGR would be terminated in six months there is no evidence that after that announcement it gave any assurances to anyone, let alone to the Applicants, that such services would continue to be provided to the Applicants after the cut off date, or that the services would continue to be provided as long as there were some people in the settlements. Further, it is important to note that none of the Applicants or their witnesses has testified that he or she believed that as a result of the assurances which were made in 1996 and 1997 the Applicants would always be provided with services. There is no evidence from the Applicants that they had always been under the belief, or for that matter even the impression, that the provision of services to the settlements in the CKGR would not be terminated as a result of assurances that were given by government officials in 1996 and 1997 that services would be provided as long as there were some people in the CKGR. Instead, those who testified at all on the issue told the Court that the residents had been told over a period of time that the services would be terminated in future and that they had not opposed the termination of services and had responded by saying they did not care if the services were terminated as they could live in the CKGR without those services. That the Applicants can live in the CKGR without the services is, in my view, true because some of the Applicants or residents never relocated while others who relocated in 2002 have since returned to and live in the settlements in the CKGR even though the services have not been restored. I therefore find as a fact that the government consulted the Applicants before it made the decision to terminate the provision of services inside the CKGR. In the premises, the contention of the Applicants that the termination by the Government of the provision of the basic and essential services to them in the CKGR was unlawful and unconstitutional has no merit and I reject it.
34. B. Issue Number 1(B) - Whether the Government is
Obliged to Restore the Provision of Services to the Applicants in the Central Kalahari Game Reserve?
In their original notice of motion, the Applicants sought a
declaratory order that the Government was obliged, first, to
restore to them the basic and essential services that it terminated from the 31st January 2002; and, secondly, to continue to provide them with the basic and essential services that it had been providing immediately prior to the termination of the provision of those services. The consent order on this issue however, only directs the Court to establish after hearing evidence whether the Government is obliged to restore the provision of services to the Applicants in the CKGR. In my view, if the Court were to find on the first issue that the termination of the provision of services to the Applicants in the CKGR was unlawful, it would have to decree that the Government is obliged to restore the provision of those services to the Applicants in the CKGR, otherwise the finding that the termination of services was unlawful would be hollow and meaningless. I have already found on the first issue that the termination of the provision of services to the Applicants by the Government was neither lawful nor unconstitutional because I am satisfied on the evidence that the decision to terminate the provision of services to the Applicants was made after the Government had consulted the Applicants, who I am also satisfied knew and were aware from those consultations that the provision of such services would be terminated at some point in the future. For the reasons stated in support of those findings, therefore, it follows that the Government is not obliged to restore the provision of services to the Applicants in
the CKGR.
35. There is, however, further evidence before the Court by the Applicants on the basis of which it cannot be concluded that the Government is obliged to restore the provision of services to the Applicants in the CKGR. Only Amogelang Segootsane (PW2), who never relocated testified that he had a constitutional right to be provided with services by the government at a place of his own choosing within the CKGR. This witness moved permanently to the Gugamma in the CKGR in 1986 and he falsely testified that his parents were born in the CKGR while he was born at Salajwe in 1962 outside the CKGR where he said his parents were visiting; and, astonishingly, he also said even in 2004 when he gave evidence his parents were still on a visit to Salajwe. However, during his cross-examination, he was confronted with evidence which showed that his parents were in fact born in Salajwe where they lived. When he was confronted with this evidence, all he could afford to do was to mumble that his father must have lied
to him.
.RTF of original document