The land tribunal has ruled against former Member of Parliament, Robert Masitara and his Wife, Poloko in a case in which they had taken the South East District Council to the Land Tribunal appealing a decision by the Council to demolish some of the structures he had built in his Tlokweng Forensic Investigation and residence multimillion yard.
The Council had ordered Masitara to clean up the mess in 2011 when conducting a familiarisation tour in Tlokweng for new members after learning that the structures, paving, car pots-overhanging car shades, steel support structure and nets as well as Chains mounted on pillars were constructed without permission.
The Council said that no planning permission was ever granted to Masitara nor was it ever requested for by him for the said developments.Masitara said that he understood that they ought to have obtained permission to construct the structures adding that they recieved a letter instructing them to remove the developments whilst he was in the process of applying for permission to regularise the developments.
Masitara further pleaded that he be allowed to keep the strucures whilst he applies for permission to regularise the structures. He further pleaded that the structures be left intact and if Council wants to undertake any developments in the area, he would remove them.
Masitara rubbished the Council’s suggestions that the structures were obstructing or posing any form of threat to other road users further adding that the has removed some which were said to be obstructing people.He continued that some people actualy utilise the shades for shelter from the sun and rain.
The Council however argued that Masitara ‘s constructions were illegal and that they were dangerously in a road reserve in front of his plot, this being an area where Masitara had no land rights. They said the developments compromised the safety and visibility of motorists. They further argued that during the day, pedestrians are forced onto the tarmac further saying that Masitara ‘s plot is located where visibility is compromised as it is a curved area.
The Council further argued that government has introduced guidelines for small and medium enterprises which provide for activities that can be carried out within residential plots without licencing. The condition,they said, is that the activity should not lead to change of land use and that the land should remain dorminantly used for residential purpose.The South East Council further accused Masitara of using a residential plot for business,an accusation Masitara refuted saying the only house used as an office was the house in front.
In handing down the judgement, Sampa Kaisara, the tribunal president, said it is common cause that Tlokweng has been declared a Planning Area in terms of the Town and Country Planning Act which means that the provisions of the Act apply in the area.
“In terms of the Act the Council is empowered to undertake duties in furtherance of the objectives of the Act.The main objective is to make provision for the orderly development of land in both urban and rural areas and to preserve and improve the amenities thereof,” he said.
He said in accordance with the Act,no development will be permitted in the area without planning permission having been granted.He ruled that the developments were illegal as they were constrcuted contrary to the provisions of the said Act.
“In addition,the developmets in questions lie within a road reserve of tarred public road in front of Masitara’s plot.A road reserve is an area which provides for facilities like pedestrian ways, as well as lines for water, power, telecommunications, sewer or storm water,” he said, further adding that no private or individual developments are allowed within the road reserve.
“Accordingly, the court finds that it would be improper to allow Masitara’s developments in the road reserve as it would obstruct pedestrians and provision of utilities,” said the president in handing down the judgement. The court ruled that Masitara’s developments are illegal and ordered him to remove the develoments within 30 days from yesterday (Friday).
The court however saved Masitara’s pavements, allowing him 60 days to obtain planning permission to regularise the paving developments in the disputed area.The court further ruled that should Masitara fail to remove the disputed developments,the Council should remove them and claim the costs of doing so from Masitara.
Former High Court Judge Professor Key Dingake has made his opinion known about gay rights in a glowing tribute to his retired former colleague Justice Ian Kirby.
Late last month a panel of Court of Appeal (CoA) led by Judge Kirby upheld a 2019 High Court ruling that decriminalised same-sex relations and stroke down two sections in the penal code. In his seminal judgment, Justice Kirby said these sections served only to incentivize law enforcement agents to become keyhole peepers and intruders into the private space of citizens.
In this case one Letsweletse Motshidiemang, a homosexual had instituted an application in the High Court challenging the constitutionality of Sections 164 (a) and 164 (c).
Paying tribute to Justice Kirby, Justice Dingake said overall the Kirby court was restrained and brilliant in its genre of conservatism. Judge Dingake said the case of Motshidiemang is evidence of the latter. “In a stroke of a pen, he ended the long and tortuous road to equality of gay people.
I was reminded of this long and tortuous road by a piece written by, Zackie Achmat, that indefatigable human right defender, recently, when he reflected on a union of gay men, one Khoi and the other a Dutch sailor, way back in 1735, who for their love for each other were brutally murdered,” Justice Dingake said.
He said in truth Botswana’s Constitution never denied the right to equality for gay men. It was society and the judges who did – some arguing that the time is not right to extend equality rights to gay persons – forgetting the self-evident truth that we are all born equal and that rights are not negotiable – not even with Judges.
“It ought to be remembered that the Motshidiemang case was similar to the case of Kanani that preceded it. Justice Kirby was part of the panel that sat in Kanani. In Kanani he agreed with the other Justices and refused to strike down the offensive legislation. The same legislation he struck down in Motshidiemang.
There is no doubt in my mind that Kanani was wrongly decided at the time, as several of my writings thereafter contended, having regard to the legal injunction to always interpret constitutional rights liberally and to treat the constitution as a living organism,” Justice Dingake wrote.
He added that in Kanani the Court of Appeal held back “our march to freedom for more than a decade – and perpetuated the suffering of gay persons as their being was criminalized based on an inaccurate and narrow reading of the Constitution”.
The truth of the matter is that, he said, our Constitution never denied gay persons the rights to equality and the right not to be discriminated against. “Some sections of society (may be the majority) and the bench did so. The bench did so because of the choices they exercised.
They chose to interpret the constitution restrictively, which is not permissible; they chose to be blown away by ‘public opinion’, which was not right, and they chose not read: ‘sexual orientation’, into section 15 of the constitution, which they could have done.”
Botswana’s Constitution he said commands that it be interpreted in a manner that saves humanity from the scourge of indignity – and with a sense of the future – and to secure the rights of generations yet to be born. It is always the duty of Judges to breathe life into the Constitution – and to effect the promise of the Constitution – by among other things rejecting the tyranny of the majority.
“Section 3, the principal section conferring fundamental human rights in Botswana has always been there. It was ignored in Kanani, and thankfully given effect to in Motshidiemang. A big lesson here is the often overlooked fact: Judges matter! Who the Judge is may be life changing in any given matter.
When one considers the decision in Kanani and Motshidiemang, based on similar facts and the diametrically opposed conclusions, one may be given to think that may be: ‘the constitution is what the Judges say it is’, at any given time, as that brilliant luminary judge and scholar, Charles Evans Hughes (1862 -1948) LLD, once ruminated.”
Interestingly, Judge Dingake wrote about homosexuality more than 12 years ago in his book ‘Key Aspects of the Constitutional Law of Botswana’. Justice Dingake expressed his views on what was said then to what was said in the recent judgment.
In that book, he began the debate by stating that homosexual issues are not frequently debate in Botswana. “Empirically, the extent of homosexual tendencies is not known. In any event the phenomenon does not appear to be widespread,” the Judge wrote.
He said serious debate however cropped up sometime around August 1995, after president Robert Mugabe’s much publicized anti homosexuals speech at the Harare International Book Show. Even then, he said, the debate was only confined to a small circle of intellectuals, with the broader community generally contemptuous and not willing to engage in serious debate about the issue.
“Although the intellectual community is by no means unanimous, there are some voices, particularly emanating from the University of Botswana, that are calling for equal treatment for homosexuals. Despite the enormous capacity of such arguments to court controversy general response of the public was one of cynicism. This general lack of interest among the general populace contrasts sharply with the enthusiasm and interest on the issue, just across the border, in South Africa, where there are numerous homosexual associations,” he said.
He explained that the South African Constitution prohibits discrimination on the basis of sexual orientation, which has paved the way for homosexuals to be employed in the army, an advance that is unparalleled in modern democracies. He also explained that Botswana’s criminal law prohibits consenting adults of the same sex from having a sexual relationship, because that is said to be unnatural.
“Within the framework of Botswana’s Constitution there can be no doubt that the prohibition of sexual relationships between consenting male adults of the same sex is unconstitutional. No free society can, in this era, afford to treat its citizens differently on the basis that is patently irrational.
Every individual, is in terms of the Constitution equal before law and has the right of equal benefit of the law without discrimination. The legal recognition of homosexuals will confirm Botswana as a democratic country that is advancing with time.”
He added that it needs to be said that it is however fruitless to bury “our heads in the sand and hope the issue will disappear for good”. He concluded: “In time we will have to confront the issue head on. In time blind prejudice that stigmatizes homosexual relationships will have to stand up to rational scrutiny. It is advisable not too turn a blind eye to the pain of discrimination suffered by few of our fellow countrymen and women. In a democracy it is unacceptable that the majority should oppress the minority”.
Consumers could pay more for electricity this year, as the government owned power producer, Botswana Power Corporation (BPC) plans to increase prices for electricity by 5% with effect from the 1st of April 2022.
BPC recent statement on tariff adjustment shows that with the planned 5% increase in electricity tariffs, electricity prices per kWh could increase by 111 thebe for household users, 226 thebe for government, 148 thebe for commercial businesses and 111 thebe for the mining sector.
Botswana economy is registering growth as the country emerges from one of its worsts economic recessions since independence, following the outbreak of COVID-19 pandemic.
In late December 2021 Statistics Botswana released the country’s Gross Domestic Product (GDP) figures for the third quarter of 2021.
The nominal GDP for the third quarter of 2021 was P49, 260.5 million compared to P48, 684.0 million registered during the previous quarter. This represents a quarterly increase of 1.2 percent in nominal terms between the two periods.