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CoA extends refusal to bury CKGR resident’s corpse

Lesiame Gaoberekwe

The corpse of a Central Kalahari Game Reserve (CKGR) resident who the government says cannot be buried in the reserve is expected to lie at Gantsi mortuary for quite some time.

According to a letter from Deputy Registrar of the Court of Appeal Tselapedi, Pitseng family’s appeal application cannot be enrolled in the July session 2022 appeal roll as we have already completed the roll for the session and already advertised.”

“As your matter was not brought before the Court of Appeal on urgency, we have to schedule you on the next available date for settle of record so we pave way forward for the appeal.”  Meanwhile the High Court has finally delivered a judgement in which it dismissed an application in which Gaoberekwe Pitseng’s family had applied to the Court to have his corpse buried in the Central Kalahari Game Reserve (CKGR).

In his judgement, Justice Itumeleng Segopolo found that the deceased’s national identity card reflects that he was born in 1947 at Metsimanong, a settlement in what is now the CKGR. He also found that Pitseng’s corpse has been languishing at a mortuary in Gantsi since December last year.

Segopolo found that that matter was objectively urgent, even if Lesiame may had failed to act promptly; after all, it is impractical to continue keeping a corpse in the morgue, given that there is a limit to how long a corpse can be kept from decomposing and given that financial costs are necessarily incurred.

In the end, the judge said, the case boiled down to the question where the deceased’s right, if any, emanated from to be buried in the place where his family proposed to bury his remains. Segopolo also found that the Court in Sesana’s case was careful to restrict the intended effect of its judgement to those specific applicants who had come before it to claim a right of residence with the environment from which, before declaration of the reserve, they and their forebearers had been drawing their livelihood in a manner harmonious with the objectives for which the reserved was declared.

The judge said it was apparent to the Court that the people occupying the settlements within the Reserve had become increasingly sedentary and less nomadic. “This was a change from the age-old way of life where small communities moved from place to place in pursuit of wildlife to hunt, veld produce to gather and water to drink,” said the judge. Segopolo said being aware of the special dispensation granted only to the applicants in the Sesana case, Lesiame sought to bring the deceased within the ambit of the decision in the Sesana case.

“He asserted that the deceased was one of the unrepresented applicants that the decision in that case, and therefore a beneficiary of the special dispensation that the decision afforded to those applicants,” said the Judge.

He added that in order to decide whether or not to grant the first relief sought (to have the corpse buried in the reserve) it is thus necessary to examine whether indeed the deceased was an applicant in that case.

“To be counted a litigant in any suit, a person in general and a natural person in particular, must make registered appearance before the court,” said Segopolo. The judge found that “on the papers before me there is no evidence or suggestion that the deceased did any of the abovementioned things in the Sesana case.” The judge also added that “He is listed by the First Applicant (Mr. Sesana) in that case as being amongst the residents of the Metsimanong settlement in the CKGR.”

Segopolo also indicated that former Judge Unity Dow alone amongst the judges in the Sesana case recognized 29 unnamed persons as being “litigants on paper only.”  According to Dow’s judgement. “The remaining 29 applicants were not represented and they remain litigants on paper only. Notwithstanding, having launched the case, they remain parties to the case and a bound, for better or worse, the decision of this court.”

Segopolo said Lesiame’s lawyer, Nelson Ramaotwana argued that, by process of elimination and derivation, these “litigants on paper” must have included Pitseng. “However, in her reference to these persons, the learned Judge did not elucidate how she had concluded that the unnamed 29 had launched proceedings in the first place. Had they simply been captioned or listed as co-applicants to Mr. Sesana, or had they signed or cognizably marked the originating process?” Segopolo said.

He added that “The record before me discloses nothing in this regard.” The judge also added that “The onus to bring cogent evidence of some alleged facts rests upon the party alleging that fact. The Applicant did not discharge that onus.”

Om the other hand, Segopolo said, by reckoning of for Chief Justice Maruping Dibotelo, the applicants in the Sesana case were limited to a list of 189 persons, from which list the deceased’s name was albescent. In his judgement Dibotelo said: “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 were not substituted, while others did not come forward.” Dibotelo also indicated that: “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 judgment who are parties to this action.”

Therefore, Segopolo said one’s status as a litigant recognized by law is as objective a matter as locus standi (right to bring a lawsuit); it cannot be conferred by consent, nor by obiter recognition by the minority opinion of a court.” He added that “an omission to demonstrate locus standi cannot be condoned by a court.” Therefore, the judge dismissed the application by Pitseng family.

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