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Citation: 2007 (2) BLR 886 (CA)

Court: Court of Appeal, Lobatse

Case No: Civ App 32 of 2007

Judge: Zietsman, McNally and Twum JJA

Judgment Date: July 26, 2007

Counsel:

S Siziba for the appellant. B D Leburu for the respondent.

Flynote

Land – Tribal land – Exclusive rights of occupation – Claim to – Whether applicant having valid claim.

Headnote

The appellant claimed to have exclusive rights of occupation of a large block of tribal grazing land. The respondent disputed the appellant’s claim and eventually obtained an order in the High Court evicting the appellant from the land. The appellant appealed against the order of eviction. In the trial court, the appellant claimed to have been granted a written lease in respect of the land by a subordinate land board acting as agent of the respondent; alternatively, to have been granted an oral lease in respect of the land by the respondent. On appeal, the respondent, inter alia, raised a new ground of appeal, namely, that the respondent, by its conduct, had ‘tolerated’ the appellant’s occupation of the land, that is, the High Court ought to have considered whether the par delictum rule applied to save him from eviction. Held: (1) The appellant’s contention had to be dismissed because, in terms of s 19 of the Tribal Land Act (Cap 32:02) (Sub Leg), a subordinate land board had no authority to grant such a lease either in its own capacity or as agent of the respondent.

(2) The appellant’s contention likewise had to be dismissed because, first, there was no evidence of such an agreement and, second, such an agreement was invalid in terms of the proviso to s 7(1) and ss 24(3) and 39(1) of the Tribal Land Act (Cap 32:02).

(3) The appellant’s contention had to be dismissed as there was no evidence to support the allegation of either an oral lease or of an extended period of toleration amounting to some sort of tacit lease. Even if there were such evidence, the appellant could not invoke the par delictum rule to save him from eviction.

(4) The reasoning and conclusion of the court a quo were entirely correct.

Case Information

Cases referred to:

Gradam Holdings (Pty) Ltd v Spur Group (Pty) Ltd and Others [2004] 2 B.L.R. 11, CA Jajbhay v Cassim 1939 AD 545

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)

APPEAL from a decision of the High Court. The facts are sufficiently stated in the judgment.

2007 (2) BLR p887

S Siziba for the appellant. B D Leburu for the respondent.

Judgment

McNALLY JA:

The appellant sought to claim exclusive rights of occupation of a large block of Tribal grazing land at Makomoto Lands in the Tonota District of the Bamangwato Tribal Territory. The respondent disputed this claim and eventually succeeded in the High Court in obtaining an eviction order. The appellant now appeals against that order.

The history of the dispute is very briefly as follows:

In 1991 the appellant applied to the land board for an 80 hectare plot in the communal grazing area and was granted a common law lease for dairy and ostrich farming over an area of 49.1931 hectares. The application was accompanied by a sketch plan of the plot. It was common cause that this was approved on 27 June 2001. A written lease is among the papers before us.
He then applied in 1998 for a much larger plot of 693 hectares. This application was received by the Tonota Subordinate Land Board (TSLB) on 20 October 1998. It was for a 50 year common law lease. There are various indications (I put them no higher than that) that the TSLB approved and was prepared to recommend this proposed lease to the respondent, who alone had the authority to grant such a lease.

But, as the appellant accepts unequivocally in his heads of argument in this court: ‘It was common cause (in the court a quo) that there was no written lease agreement, written resolution or certificate of grant whatsoever wherein appellant had been granted a lease by the respondent, at least as envisaged in the Tribal Land Act.’

I may say, in passing, that it is not entirely clear that that was common cause in the court a quo. From Mr Ndlovu’s answering affidavit it appears that he was contending that the TSLB, acting as the agent of the Ngwato Land Board, had in writing granted the ‘extension’, and had ‘allocated’ the land. Elsewhere he stated that when he checked for his lease he was told it was still being prepared. In other words, he was running two defences in the alternative. The first was that he had a written lease, granted by the TSLB, acting as agent for the respondent. Alternatively he had an oral contract with the respondent which was to be confirmed in writing.

A reference to the Tribal Land Act (Cap 32:02), disposes of both these arguments, as the learned judge a quo demonstrated very effectively. A subordinate land board is not the agent of a land board in the granting of common law leases of Tribal Land. The Establishment of Subordinate Land Boards Order (Cap 32:02) (Sub Leg) made under s 19 of the Act, provides in para 4(4) that: ‘(4) Subordinate land boards shall receive and make recommendations to the tribal land board in respect of applications for common law grants of land.’

It follows that the TSLB had no authority to grant such leases, whether in its own capacity or as agent of the Ngwato Land Board. The documents produced are confusing and confused. They establish only that an application for the 693 hectares (it was described as 3.5 km x 2km) was made to the TSLB and that it was (considerably later) followed by a sketch plan. There is a letter from the TSLB, dated 4 July 2001, stating that the respondent had approved ‘Mr Androcles Ndlovu’s plot’ but it is quite clear this refers to the smaller 49.1931 hectare plot. This is confirmed in the minutes of the respondent’s meeting of 27 June 2001 and specifically in the schedule annexed to the minutes.

As to the allegation that there was some sort of oral agreement, there is absolutely no evidence of such an agreement. Moreover the Act itself makes it clear that such an agreement would be invalid. Section 24(3) provides: ‘(3) A grant under this section shall be in the form of a written agreement executed on behalf of the land board by the chairman or secretary thereof, duly authorized thereto by resolution of the board.’

The proviso to s 7(1) reads: ‘(1) Provided that no grant of land shall be of any effect unless the land board by resolution approves such grant and a record of such resolution is recorded in the minutes of the meeting at which the resolution was passed.’
And finally s 39(1) provides that: ‘Any person who –

(a) acquires or takes occupation of any tribal land without having an appropriate lease or a certificate issued by the land board concerned … shall be guilty of an offence and shall be liable to a fine of P10 000 and to imprisonment for one year…’ It follows that without a written lease from the Ngwato Land Board, the appellant does not have a leg to stand on.

Before this court the appellant raised two more, equally forlorn, defences. First, he says the court should have referred the matter for oral evidence. Second, he says that the respondent ‘tolerated’ the appellant’s occupation of the land by its conduct. As to oral evidence, the short answer is that oral evidence is not going to produce a written lease. It would be a waste of time and money to prolong these hearings because there is no ‘real, genuine or bona fide’ (or, I might add, ‘relevant’) dispute of fact – see the well known remarks of Corbett JA (as he then was) in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at pp 634I to 635C, and Gradam Holdings (Pty) Ltd v Spur Group (Pty) Ltd and Others [2004] 2 B.L.R. 11, CA at p 47.

Counsel’s second submission was, as I understand it, to this effect. If the respondent had indeed entered into an illegal oral lease with the appellant, and if it had then sought to terminate it by recourse to the very law which it had already flouted, the court should have considered whether to apply the maxims ex turpi causa non oritur actio and in pari delicto potior est conditio defendentis. This submission falls at the first hurdle, because there is not a tittle of evidence to support the allegation either of an oral lease or of an extended period of toleration amounting to some sort of tacit lease.

Far from any question of toleration, the papers reveal that from an early stage the respondent was, with increasing irritation, querying the appellant’s right to occupy the extended area of communal land which he was fencing in. His application in 1998 had been deferred pending receipt of a sketch plan of the area in respect of which the application had been made. The earlier of the two sketch plans in the record is at p 120, and is dated 26 August 2002. Yet in that very same month the respondent board passed a resolution threatening to evict him if he could not within seven days produce evidence that he had been granted 693.53 hectares as he was alleging.

Even assuming that there had been in existence some sort of illegal oral or tacit lease, I am satisfied that the par delictum rule could not have been invoked to prevent the respondent from evicting the appellant. The appellant’s reliance on Jajbhay v Cassim 1939 AD 545 is misplaced. The judgment of Stratford CJ, to which he refers, and specifically at pp 544-5, makes it clear that the overriding consideration in applying the maxim is that of public policy. He says that ‘the rule expressed in the maxim … is not one that can or ought to be applied in all cases, that it is subject to exceptions which in each case must be found to exist only by regard to the principle of public policy’.

In the present case the maxim could not have been applied because:

1. In terms of s 10 of the Tribal Land Act the land under the jurisdiction of a land board vests in that board ‘in trust for the benefit and advantage of the citizens of Botswana’. It must therefore be contrary to public policy to condone illegal leasing of such land.

2. It is a criminal offence to occupy such land without a valid certificate supported by a land board resolution.

3. It cannot be in the interest of the local tribesmen that their grazing land be taken from them illegally.

Therefore I am satisfied that there was no oral or tacit lease agreement, and that, even if there had been, there was no reason for the application of the par delictum rule. In my view, the reasoning and the conclusion of Kirby J in the court a quo were entirely correct.

The appeal is dismissed with costs.

Zietsman and Twum JJA concurred.

Appeal dismissed.

2007 (2) BLR p890

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