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Batlokwa burial style, Kamanakao & El Negro haunt Gov’t

High Court

The High Court has been criticized for the manner in which it arrived at its decision in a case in which it barred Pitseng family from burying their father in the Central Kalahari Game Reserve (CKGR).

The government was also not spared from the blame as it was accused of being hypocritical as it had allowed a number of prominent figures to be buried in protected areas such as reserves and national parks but now is refusing the Pitseng family to do so in CKGR.

In their appeal papers before the Court of Appeal, lawyers representing Lesiame Pitseng who is fighting tooth and nail to ensure that his late father is buried in the CKGR reminded the government of this reality. The Court of Appeal is their last hope as his family is still struggling to find closure.

The judgement is yet to be delivered by the court of appeal and Gaoberekwe Pitseng’s body is still lying in a morgue in Gantsi, after he died on Christmas eve last year. Gaoberekwe’s lawyers stated in their papers that the High Court erred in stating that the deceased’s son’s Lesiame failed to indicate customary or common law authority that entitles him to be buried in the CKGR yet he cited Kamanakao El Negro Tlokweng custom and culture of burying their deceased in their homestead.

The government had argued that no one in Botswana should be buried in a reserve or national park or where he does not originate. Lesiame countered this arguing that he be allowed to bury his father in the CKGR where he originates citing Bayeyi chief Calvin Kamanakao and El Negro who were reportedly buried in parks and Batlokwa who continue to bury their kinsmen in their yards.

The lawyers want the Court of Appeal to declare that Lesiame’s father was a litigant in Roy Sesana case and constituted part of the 29 unrepresented litigants.  They also want the apex court to declare that the deceased who was born and grew up in in the CKGR was a lawful resident and occupant thereat; therefore, he is entitled to be buried in the CKGR at Metsimanong settlement.

The lawyers also said learned judge of the court below erred in holding that the deceased was not part of the 29 unrepresented applicants in Roy Sesana case hearing. “The learned judge erred in holding that the applicant’s father cannot benefit from Roy Sesana judgement as a litigant and lawful occupant of the CKGR from birth till death,” the lawyers said.

They further noted that the learned judge failed in applying his mind to the import of section 14 (1) of the Constitution which protects fundamental human rights of Lesiame and his father to reside in any part of Botswana including CKGR.

In their grounds of appeal, the lawyers noted that the High Court erred in stating that the deceased was not a litigant in Roy Sesana case, which dealt with forced removals from Central Kalahari game Reserve (CKGR).

“The High Court also erred in stating that unrepresented litigants in the Roy Sesana case were not bound or cannot be benefit from the said judgement as residents and lawful occupants of CKGR,” the lawyers said. They also indicated that the High Court also erred in stating that only 189 applicants in Roy Sesana cannot be buried in CKGR whilst those other 291 lawful residents or lawful occupants are prohibited to be buried in the CKGR.

The lawyers also indicated that the High Court judgement was inconsistent with the Constitution of Botswana which provides that every citizen can reside in any part of Botswana and that it was inapplicable to protect lawful residents or occupants of CKGR to be buried in their ancestral land.

They also argued that the High Court erred in stating that Lesiame acted willfully and with mala fide (in bad faith) in not burying his father in seven days despite all efforts tried but in vain.

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