Ditshwanelo

PRESS RELEASE IX OF THE NEGOTIATING TEAM, THE MANDATED REPRESENTATIVES OF THE RESIDENTS OF THE CENTRAL KALAHARI GAME RESERVE (CKGR)

JUDGEMENT BY CONSENT

Today, the Court of Appeal at Lobatse, made an order in the case against the decision in January 2002 of the Government of Botswana, to cut basic and essential services to the Residents of the CKGR. This led to their effective forced relocation to the settlements of Kaudwane and New Xade which are outside the CKGR. The order of the Court of Appeal instructed the High Court to make a decision concerning issues which were mutually agreed upon by the representatives of the Government and of the Residents. The Government was represented by Mr Nchunga Nchunga and Mrs Matthews of the Attorney General's Chambers while the Residents were represented by Advocate John Whitehead and Mr Eddie Bayford of Chris du Plessis Attorneys.

On 10 April 2002, the Residents of the CKGR brought an application to the Lobatse High Court. They asked the court to declare that the government's decision to terminate the basic and essential services to them was wrongful. The Government had terminated the delivery of the services on 31 January 2002. The application also asked to have the court declare that those who had been effectively forced to move due to the termination of services, should be returned to the CKGR.

On 19 April 2002, Judge Dibotelo dismissed the application filed by the Residents based on the technical objections raised by the Government. The Residents appealed this decision. The appeal was heard on 11 July 2002. The Court of Appeal Judges, Mr Justice P.H. Tebbutt, Lord R.I Sutherland and Mr Justice A.M. Akiwumi, suggested to both the lawyers representing the Residents and the Government, that they consider agreeing to an order that the application of the Residents be urgently referred back to the High Court, for witnesses to give verbal evidence. Both the Residents and the Attorney General agreed to this referral. The Court of Appeal commented that such an order would allow the case to begin without it becoming delayed by technical issues. The Residents of the CKGR had appealed in July 2002, precisely because the April ruling of Judge Dibotelo, based on technical issues, had prevented them from presenting their case.

Mr Nchunga Nchunga of the Attorney General's Chamber objected to a draft order drawn up by the representatives of the Residents. Failing to reach a consensus, the Residents had no alternative but to go back to the Court of Appeal today. Judge President Tebbutt expressed his disappointment at the further delay of the case by what he deemed to be additional technical objections by the Attorney General. He adjourned the hearing for two hours with a strong recommendation that the two sides reach an agreement. He urged the Attorney General to abandon the technical issues in the interest of the Residents who were being prejudiced by the undue delay in the hearing of their case.

When the Case resumed at 12.30pm, the two parties had agreed on the following, amongst other issues:

that the case will be referred to the High Court where verbal evidence will be given by witnesses both in Gaborone and Gantsi
that the High Court would make a decision on these substantial issues:
a. whether it was unlawful for the Government of Botswana to terminate basic and essential services to the Residents of the CKGR in January 2002
b. whether the Government has an obligation to restore the services to the Residents
c. whether the Residents were in possession of their land and were deprived of such possession forcibly, wrongly and without their consent
d. whether the Government's refusal to issue Game Licenses to the Residents and to allow them to enter the CKGR is unlawful and unconstitutional.

Further, the Judge ordered that the Government cover the costs of the Court of Appeal hearing due to the wasted time. The agreement was based on issues which the Residents representatives had initially proposed in August 2002, with three minor changes. The Judge was therefore of the opinion that the agreement could have been reached without the necessity of re-appearing before the Court.

The Residents of the CKGR welcome the assistance given to them by the Court of Appeal, in presenting their case on the merits without having to contend with the numerous technicalities raised by the Attorney General. The Negotiating Team, which comprises representatives of the Residents of the CKGR, First People of the Kalahari (FPK), the Working Group for Indigenous Minorities in Southern Africa (WIMSA), DITSHWANELO - The Botswana Centre for Human Rights and the Botswana Council of Churches (BCC), continues with the case which will now be heard at the High Court sitting in Gantsi and Lobatse.

Released by DITSHWANELO - The Botswana Centre for Human Rights on behalf of the Negotiating Team