Some four hundred and twelve residents of Gaphatshwa village will become the latest casualty in the land crisis bedeviling the country, as the Kweneng District Council plans to demolish 54 households at the village, soon to be renamed Metsimotlhabe Block 4.
WeekendPost has established that some residents in the area have already been served with letters this week by Kweneng Land Board summoning them to have vacated their long time households in 30 days while others who resisted the evacuation have been subpoenaed to appear before court.
This publication has gathered that the residents have been instructed to move so as to make way for impeding developments.
According to confidential minutes between the Landboard members and some Gaphatshwa residents seen by this publication, the inhabitants – who are not even squatters -are being pushed out as there is new layout that has to be put up in the area (to be named Metsimotlhabe Block 4) and all properties in that area will have to be relocated.
The Landboard is believed to have initially thought that some properties could be realigned to the new layout, but that thinking has since been abandoned and KDC now wants the residents to evacuate.
“Experts have advised that the existing structures may not meet the current development standards, the structures may be affected during construction by vibrations caused by construction machinery, safety and health issues and the whole environment of the residents will be affected during construction by noise pollution, dust hence the need for relocation,” Landboard officials stated as per the minutes of a meeting held on 9 February and on 21, 27, 28 April 2016.
According to the minutes some residents who were told to evacuate and resisted were informed that the layout is not yet serviced and there is no way they can remain within the plots in question. The landboard officials stated that “land right holders were consulted at kgotla meetings after that there were individual consultations. They were informed that their mokgoro will be assessed and compensated for in monetary terms for the developments made and be allocated an alternative standard size residential plot and be compensated for loss of right if any in monetary terms. They were also informed that the ploughing field and mokgoro has been assessed and cheques prepared.”
For their part, some residents indicated in the meeting that they were willing to give their ploughing fields and mokgoro to the Landboard but they have some demands as they had been using that land for their livelihood for a very long time. The residents argued that they were never consulted and only met with the assessment team who assessed their properties. They further posited that the value of a residential plot in that area is over P 200 000.00.
Furthermore, they stated that the money stated as compensation was not enough for them to develop the new plots. They insisted they “will want to be compensated with land for their ploughing fields instead of monetary terms”. They also state that they want reasonable hectares as compensation for the ploughing fields and therefore won’t relocate if their demands are not met.
The other alternative, they maintained, is that they can be given the number of residential plots that can be accommodated within their mokgoro, and also want to be compensated with land just like other land right holders who have been compensated with land recently.
Some area dwellers were however informed that they had been granted the right to use the land in question which is tribal and was not the right one. Landboard officials explained that “when tribal land is acquired, compensation is done in monetary terms as per compensation guidelines for acquiring tribal land. Practice of mpeelabana was long brought to an end in 2005. If there was an agreement with landboard before the practice was brought to an end that ploughing field owner will be allocated residential plots as part of compensation and that agreement has to be honoured.
The minutes indicate that the board resolved to apply for compulsory acquisition of the ploughing fields and the mokgoro in question as the allottee’s representative demands to be compensated in land is not in line with compensation guidelines for acquiring tribal land as per the Tribal Land Act.
According to the minutes, Land board Chairman M. Babitseng and his Vice J.O Matlhabaphiri together with six other board members being S.O Otukile, E. Kepaletswe, K. Mosinkie, O. Dube, D. Molatlhegi, U. Obotseng were present at the meeting. In addition Kweneng Landboard attorney A. Baikakedi, Principal Land Registration officer D. Rabai, Land adjudication officer I. Ditlogolo and board clerk M. Godirilwe also graced the meeting that was between landboard officials and some residents.
The Gaphatshwa residents also had a succeeding kgotla meeting on Wednesday this week addressed by the area Member of Parliament Pius Mokgware – during which they aired their land grievances, fears and qualms. Their worst fear, they revealed is seeing the yellow monster ravaging their buildings. Some even vowed they would rather die than see their structures being demolished.
The residents further told the MP that they will only surrender the land provided they are properly re-allocated plots, along with their children. Also, they highlighted, they don’t agree with the government/landboard compensation which is not in the form of adequate land.
According to the area dwellers the landboard wants to give some P25 000 for a few hectares which they protest is very low. Some were promised P9 600 for 3 hectares – which they out rightly rejected. For 10 hectares of land they insisted they want 4 hectares and for 4 hectares they argued 1 hectare would be sufficient in the compensation.
For his part, the Mmankgodi/Manyana law maker stressed that government has spelled out its intention to eradicate poverty and therefore its actions should speak out for that stance and not against it. Mokgware submitted that in an ideal world the developments should go to the people and not the people moving out for developments. “The tradition and land policy from way back is that if there are developments anywhere, people’s structures found there should be left alone and developments should find them there.”
He said he will establish a committee comprising of some residents that will meet Minister of Lands and Housing Prince Maele in a span of time. The committee will request the minister to intervene and order the landboard to refrain from writing area dwellers letters instructing them to vacate the area until they resolve the agreeable compensation.
They also want Maele to order the landboard to recognize the existing residents’ structures and not demolish them but instead incorporate them into future plans for the new Metsimotlhabe Block 4.
It is understood that the residents particularly in Gaphatshwa have been having unsettled land issues as far back as 2001, and some even applied to the land tribunal but still could not be assisted satisfactorily.
WeekendPost made efforts to contact Mogoditshane Sub landboard Secretary Anthony Bashingi, in which the area falls under, and he said he was not invited to the MP’s kgotla meeting and he further referred this publication to his superiors at Kweneng Landboard. Acting Kweneng Landboard Secretary Vincent Sekano was said to be out of the office on an official assignment.
However Principal Public Relations Officer Prudence Lekhupile said in terms of compensation which the residents strongly dispute, there is a standard reward put forth by the Ministry of Lands and Housing.
“If they disagree they are allowed to go back to the drawing board to negotiate the compensation fee. There is an established complaint procedure to follow,” she pointed out.She also said there is a certain percentage of land to be given to children whose parents’ land is being possessed.
According to the spokesperson they also compensate in monetary terms commensurate with the materials used at the ploughing field or land being possessed.
In June 2019, a case involving the Attorney General was brought before the High Court, in which the applicant Letsweletse Motshidiemang challenged Sections 164 (a) and 167 of the Penal Code. The applicant contended that these sections are unconstitutional because they violate the fundamental rights of liberty and privacy.
The applicant argued that these sections violated his right and freedom to liberty as he was subject to abject ignominy. These laws subjected the LGBTIQ community to brutal and debasing treatment through social control and public morality. On the 1st of November 2017, the Botswana High Court further allowed Lesbians, Gays and Bisexuals of Botswana (LEGABIBO) to join the case as amicus curiae.
However, in July 2019, the respondents, in this case, i.e. the Government, filed an appeal against this iconic High Court ruling seeking re-criminalization of homosexuality. Human Rights Group has criticized this move of the Government all over the world. The appeal was heard before five judges at the Court of Appeal on Tuesday. The State was represented by Advocate Sidney Pilane, while LEGABIBO and Letsweletse Motshidiemang were represented by Tshiamo Rantao and Gosego Rockfall Lekgowe, respectively.
Non-Governmental Organizations advocating for the LGBTIQ+ community joined the two parties at the Court of Appeal during this case. They argue that the minority group should enjoy their rights, especially the right to privacy and health. Botswana Network on Ethics, Law and HIV/AIDS (BONELA) Chief Executive Officer, Cindy Kelemi says the issues being raised by LEGABIBO are that as individuals belonging to the LGBTIQ community, they have and must share equal rights, including the right to privacy, which also speaks to being able to involve in sexual activities, including anal sex.
“Those rights are framed within the constitution, and therefore a violation of any of those rights allow them to approach the courts and seek for redress. We do not need the law to be regulating what we do in the privacy of our homes. The law cannot determine how and when we can have sex and with who, so the law does not have any business in that context. What we are saying is that the law is violating the right to privacy,” she said on the sidelines of the decriminalization case in Gaborone on Tuesday.
The first case involving the homosexual act was the Utjiwa Kanane vs the State in 2003. Contrary to section 164(c) of the Penal Code, Kanane was charged with committing an unnatural offence and engaging in indecent practices between males, contrary to section 167. The conduct at issue involved Graham Norrie, a British tourist, and occurred in December 1994. (Norrie pleaded guilty, paid a fine, and left the country.)
Kanane pleaded not guilty, alleging that sections 164(c) and 167 both violated the constitution. The High Court ruled that these sections of the Penal Code did not violate the constitution. Kanane then appealed to the Court of Appeal. BONELA CEO recalls that in its judgment then, the High Court indicated, Batswana were not ready for homosexual acts. Twenty years later, the same courts are saying that Batswana are ready, she says.
“They gave the explicit example that shows that indeed Batswana are ready. There are policies and documents in place that accommodate people from marginalized communities and minority populations. The question now is that why is it hard now to recognize the full rights of an individual who is of the LGBTI community?” She further says intimacy is only an expression. The law that restricts homosexuality makes it hard for LGBTIQ members to express themselves in a way that affirms who they are.
“We want a situation where the law facilitates for the LGBTIQ community to be free and express themselves. The stigma that they face in communities is way too punitive. They are called names; some have been physically violated and raped at times. It shows that the law doesn’t not only prevent them from expressing themselves, it also exposes them to violence.” The law on its own, Kelemi submits, cannot change the status quo, adding that there is a need for more awareness and education on human rights and what it means for an individual to have rights.
“As it is now, it is very tough for some to do that because of a legal environment that is not enabling. We also want to see a situation where LGBTIQ+ people can access services and be confident that they are provided with non-discriminatory services. It is challenging now because health care providers, social workers and law enforcement officers believe that it is illegal to be homosexual. What we are saying is that if you have an enabling law, then that will facilitate for people to be able to express themselves, including accessing health services,” Kelemi said.
“As we are doing this advocacy work, one of the issues that we picked up is that there is lack of capacity, especially on the part of healthcare workers. We noted that when we provide services or mobilize Men who have sex with other men (MSM) to access health facilities, health care workers are not welcoming, forcing them to hideaway. We must put an end to this to allow these people the freedom that they equally deserve.”
The President, Dr Mokgweetsi Masisi, has declared as an act of corruption the attitude and practice by government officials and contractors to deliver projects outside time and budget, adding that such a practice should end as it eats away from the public coffers.
For a very long time, management problems and vast cost overruns have been the order of the day in Botswana, resulting in public frustrations. Speaking at the commissioning of the Masama/Mmamashia 100 Kilometres project this week, Masisi said: “There is a tendency in government to leave projects to drag outside their allocated completion time and budget. I want to stress that this will not be tolerated. It is an act of corruption, and I will be engaging offices on this issue,” Masisi said.
In an interview with this publication over the issue, the Director-General of the Directorate on Corruption and Economic Crime (DCEC), Tymon Katholo, says, “any project that goes beyond its scope and budget raises red flags.” He continued that: “Corruption on these issues can be administrative and criminal. It may be because government officials have been negligent or been paid to be negligent by ignoring certain obligations or procedures. “This, as you may be aware has serious implications on not only of the economy but even the citizens who use these facilities or projects,” Katlholo said, adding that his agency is equally concerned.
According to the DCEC director, the selection, planning and delivery of infrastructure or projects is critical. In most cases, this is where the corruption would have occurred, leading to a troubled project. A public finance expert at the University of Botswana (UB), Emmanuel Botlhale, attributes poor project implementation to declining public accountability, lack of commitment to reforming the public sector, a decline in the commitment by state authorities and lack of a culture of professional project management.
In his research paper titled, ‘Enhancing public project implementation in Botswana during the NDP 11 period,’ Botlhale stated that successful implementation is critical in development planning. If there is poor project implementation, economic development will be stalled. Corruption is particularly relevant for large and uncommon projects where the public sector acts as a client, and experts say Megaprojects are very likely to be affected by corruption. Corruption worsens both cost and time performance and the benefits expected from such projects.
Speaking during this week’s Masama/Mmamashia pipeline commissioning, Khato Civils chairman said Africans deserve a chance because they are capable, further adding that the Africans do not have to think that only Whites and Chinese people can do mega projects. During his rule, former president Ian Khama went public to attack Chinese contractors for costing the government a move that ended up fuelling tensions between China and Botswana after Khama dispatched the then Minister of Foreign Affairs, Pelonomi Venson Moitoi, to China to register Botswana’s complaints with Chinese government-owned construction companies. Botswana had approached the Chinese government for help in its marathon battle with Chinese companies contracted to build, among others, the failed controversial Morupule B power plant and refurbishment of Sir Seretse Khama International Airport (SSIK).
A legal battle between former Botswana Democratic Party (BDP) legislator Samson Moyo Guma and First National Bank (FNB) over a multimillion oil refinery project intensified this week with Justice Zein Kebonang referring the matter to Court of Appeal for determination. The project belongs to Moyo Guma’s company called United Refineries which he has since placed under judicial management.
The war of words between Moyo Guma and FNB escalated after the company’s property worth millions of Pula were put up for sale in execution by the bank and scheduled to take place on 8th October. It emerges from Court papers that the bank had secured an order from the High Court to place the company’s property under the hammer.
Moyo Guma then also approached the High Court seeking among others that the public auction scheduled for 8th October 2021 be stayed. He contended that the assets that were to be sold belonged in reality to United Refineries and that as the company had been under judicial management at the time of the attachment, the intended sale in execution was unlawful.
He also sought the Court to declare that the writs of execution against the properties of guarantors and sureties of United Refineries Botswana Holdings Propriety Limited (the company) are unlawful. Moyo Guma also sought a stay of the execution against the property known as Plot 43556 in Francistown, that is, the land buildings, plant and machinery which make up the property and any all immovable or movable property belonging to the guarantors and sureties of the company pending finalization of the winding up of United Refineries.
But FNB disputed Moyo Guma’s assertions and submitted that the properties in question belonged to TEC (Pty) Ltd and not United Refiners. TEC Pty Ltd which is one of the shareholders in United Refineries is one of the sureties and co-principal debtors of a debt amounting to P24 million owed by United Refineries to FNB. FNB argued in papers that the properties belonged to TEC because it was TEC which had passed a covering mortgage bond in its favour over the property it now sought to execute.
Moyo Guma submitted that the covering mortgage bond passed in favour of FNB did not tell the full story as the property in question was in truth and fact owned by United Refineries and not TEC Pty Ltd. He maintained that the shares had been had been passed by the company in exchange for the properties in question and that the parties had always been guided by the spirt of the share agreement in dealing with each other despite delays in the change or transfer of ownership of plots 43556 and plot 43557 in Francistown.
Kebonang said it was clear to him that the two plots (43556 and 435570 belonged to United Refineries notwithstanding that TEC (Pty) Ltd had passed a mortgage bond over them in favour of FNB. “For this reason the properties were immune from attachment or sale in execution so long as the judicial management order was in place,” he said.
The background of the case is that Moyo Guma together with five other investors, namely Elffel Flats (Pty) Ltd; Mmoloki Tibe; TEC (Pty) Ltd; Profidensico (Pty) Ltd and Tiedze Bob Chapi, each bound themselves as sureties and co-principal debtors in respect of a debt owed by a company called United Refineries Botswana Holdings (Proprietary) Limited (the Company), to First National Bank Botswana (FNBB) (1st Respondent).
FNB had extended banking facilities to the company in the amount of P24 million which was then secured through the suretyship of Moyo Guma and other shareholders. Court records show that Moyo had on the 11th February obtained a temporary order for the appointment of a provisional judicial manager in respect of United Refineries and it was confirmed by the High Court on 24th September 2019.
In terms of the final court order by the High Court issued by Justice Tshepho Motswagole all judicial proceedings against the company, execution of all writs, summons and process were stayed and could only proceed with leave of Court. Court documents also show that First National Bank had sued the company and the sureties for the recovery of the debt owed to it and through a consent order, the bank withdrew its lawsuit against the company.
But FNB later instituted fresh proceedings against Moyo Guma and did not cite the company in its proceedings. “There is no explanation in the record as to why the Applicant was now reflected as the 1st Defendant and why the company had suddenly been removed as the 1st Defendant. There was no application either for amendment or substitution by the bank,” said Justice Kebonang.
FNB had also argued that it sought to proceed to execute against Moyo Guma and other sureties on the basis of the suretyship they signed and that by signing the suretyship agreement, Moyo and other sureties had renounced all defence available to them and could therefore be sued without first proceedings against the principal debtor (United Refineries). The question, Kebonang said, was that can FNB proceed to execute against Moyo Guma and other sureties on the basis of the suretyship contracts they signed?
“The starting point is that the Applicant (Moyo Guma) and others by binding themselves as sureties became liable for debts of the principal debtor and such liability is joint and several. He said the consequences of placing the company under judicial management means that every benefit extended to it should also extend to sureties.
“If the company is afforded more time to pay or its debt is discharged, reduced or compromised or suspended the obligation of sureties is to be likewise treated. It follows in my view that where judicial proceedings are suspended or stayed against the company, then any recourse against the sureties is similarly stayed or suspended,’ said Kebonang.
He added that “In the circumstances of this case, it seems to me that so long as the company is under judicial management, the moratorium that applies to it must also apply to its sureties/guarantors and no execution of the writs should be permitted against them. Any execution would be invalid.”
“Mindful that there is judicial precedent on this point in Botswana, at least none that I am aware of, and given its significance, I consider it prudent that the Court of Appeal must provide a determinative answer to the question whether a creditor can proceed against sureties where a company is under judicial management,” said Kebonang.
Pending the determination of the Court of Appeal, he issued the following order; the execution of writs issued in favour of FNB against Moyo and other sureties/guarantors of United Refinery are hereby stayed pending the determination of the legal question referred to the Court of Appeal.