Rights of the Basarwas in the CKGR recognized
Since time immemorial, Bushmen, who are also known as Basarwas in Botswana, lived in the area which came to be known as the Central Kalahari Game Reserve. Their rights were not extinguished by the colonial British. The British recognised the exclusive rights of particular bands to particular territories under a system of traditional land usage. Their rights were further strengthened under Article 14(3) of the Constitution of Botswana.
In February 2002, the government of Botswana displaced the Basarwas under the National Parks and Game Reserve Regulation on frivolous grounds such as protection of the wildlife population in the Reserve. As the government promoted the law of the jungle, the Basarwas sought a negotiated solution for a Management Plan for the Reserve. As negotiation failed and government made conditions of the Basarwas untenable, the Bushmen had no other option but to file a case in April 2002.
On 13 December 2006, the High Court of Botswana delivered its historic judgment upholding the rights of the Basarwas. The issues were framed by and judgement delivered on specific issues. Excerpts from the historic judgement are given below.
IN THE HIGH COURT OF BOTSWANA HELD AT LOBATSE
Misca. No. 52 of 2002
In the matter between:
ROY SESANA KEIWA
SETLHOBOGWA AND OTHERS
2nd & further Applicants
THE ATTORNEY GENERAL
(in his capacity as Recognized agent
of the . Government of the Republic
Mr. G. Bennett for the Applicants
Mr. S.T.Pilane with him Mr. L. D. Molodi for the Respondent;
Hon. Mr. Justice M. Dibotelo
Hon. Justice U. Dow
Hon. Mr. Justice M. P. Phumaphi
M. DIBOTELO. J.:
Issue No. 1. Was the termination of the provision of basic and essential services to the Applicants the Central Kalahari Game Reserve unlawful and unconstitutional?
Rulings: Para. 33 of the judgment
In my judgment, the examples I have cited above show and demonstrate that the government consulted the Applicants and residents of the settlements inside the CKGR extensively before it made the decision to terminate the provision of services to the Applicants. It has been argued that the termination of services was unlawful or wrongful as it was preceded by the Government's prevarication in that the Government had consistently given assurances prior to the announcement in August 2001 that the services would not be withdrawn as long as some people continued to live in the settlements in the CKGR. It is argued on behalf of the Applicants for example that on 22nd - 23rd May 1996 the Government representatives assured the Ambassadors of Sweden, The United States, Britain, Norway and an official of the European Community that “social services to people who wish to stay in the Reserve will not be discontinued” (vide Exhibit P23); that on the 4th June 1996 the Minister of Local Government repeated that “Services presently provided to the settlements will not be discontinued” (vide Exhibit P23); that on the 18th July 1996 the Acting Permanent Secretary in the Ministry of Local Government circulated a paper to other government departments stating that “The current residents of the CKGR will be allowed to remain in the Reserve and the current Government services will be maintained, though no new services will be provided” (vide Exhibit D193); that on the 16th September 1997 the District Commissioner, Ghanzi and Ghanzi Council Secretary wrote a letter (Exhibit D64) to the Botswana Guardian Newspaper stating that “The Government's position is that services will continue being provided for as long as there shall be a human soul in the CKGR”; and lastly that in April 2001 Dr. Nasha was reported to have told Mmegi Newspaper that “She did not approve the Ghanzi District Council Motion calling for the cutting of essential services” and that the motion “served to circumvent her Ministry's plans” (vide Exhibit P29). It is submitted very strongly that the decision of the Government to terminate the provision of services to the residents in the CKGR placed it in breach of these assurances, thus rendering that decision wrongful or unlawful.
I have noted that, save for what is attributed to Dr. Nasha in April 2001 and to which I hall revert shortly, these assurances were made in 1996 and 1997, some four years before the decision to terminate the services was made in 2001 and most of them even before the first relocations in 1997. I do not understand the Applicants to be saying that the Government was not entitled to change its position or policy that services would continue being provided as long as there were some people living in the CKGR; indeed if that were so, it would run counter to their contention elsewhere that they had a legitimate expectation that before the services were withdrawn they would at least be given reasonable notice to make alternative arrangements for the supply of basic services to them; further they have stated at paragraph 815 of their submissions that they do not submit for the present purposes that it was not open to the Government to depart from its policy, although there they were referring to the 1998 Policy, but that they had a legitimate expectation that before the Government decided to deviate or depart from its policy it would genuinely consult them. There is no doubt that in the words quoted from the Mmegi Newspaper above, Dr. Nasha was reacting to the resolution of the Ghanzi District Council but in my view it will be a mistake to read those words in isolation, instead the article should be read as a whole to appreciate the true import of what the Minister is reported to have said because in the same article she is also reported to have said that she did not understand what the article was about as she was on leave and that the issue (of termination of services) had long been settled and “Basarwa had moved to New Xade and Kaudwane.” In my view, if there was any doubt that the Government was not equivocating on the issue of termination of services that doubt was put beyond doubt by the President at the opening of Parliament in October 2001 when he confirmed the government decision to terminate the provision of services to the residents of the segments in the CKGR with effect from the 31st January 2002, and in the letter (Exhibit P32) Dr. Nasha wrote to Ditshwanelo on the 7th January 2002 after the latter had written in December 2001 requesting an extension of the deadline to terminate the provision of services. In her letter (Exhibit P32) Dr. Nasha states in no uncertain terms at Paragraph 3 thereof that:
“I am to inform you that the decision to terminate services in the CKGR will not be reversed.”
In my view, it is clear that once the Government took the decision and then announced in August 2001 that the provision of services to the Applicants in the CKGR would be terminated in six months there is no evidence that after that announcement it gave any assurances to anyone, let alone to the Applicants, that such services would continue to be provided to the Applicants after the cut off date, or that the services would continue to be provided as long as there were some people in the settlements. Further, it is important to note that none of the Applicants or their witnesses has testified that he or she believed that as a result of the assurances which were made in 1996 and 1997 the Applicants would always be provided with services. There is no evidence from the Applicants that they had always been under the belief, or for that matter even the impression, that the provision of services to the settlements in the CKGR would not be terminated as a result of assurances that were given by government officials in 1996 and 1997 that services would be provided as long as there were some people in the CKGR. Instead, those who testified at all on the issue told the Court that the residents had been told over a period of time that the services would be terminated in future and that they had not opposed the termination of services and had responded by saying they did not care if the services were terminated as they could live in the CKGR without those services. That the Applicants can live in the CKGR without the services is, in my view, true because some of the Applicants or residents never relocated while others who relocated in 2002 have since returned to and live in the settlements in the CKGR even though the services have not been restored. I therefore find as a fact that the government consulted the Applicants before it made the decision to terminate the provision of services inside the CKGR. In the premises, the contention of the Applicants that the termination by the Government of the provision of the basic and essential services to them in the CKGR was unlawful and unconstitutional has no merit and I reject it.
Paragraph 53 of the judgement
I have found that the termination of the provision of services to the Applicants by the Government in the CKGR was not unlawful. I have also found that the Government did not forcibly or wrongly deprive the Applicants of the possession of the land they occupied in the settlements in the CKGR. When the Applicants relinquished possession of the land they occupied in the settlements in the CKGR and relocated to the new settlements of Kaudwane and New Xade outside the CKGR, they were allocated plots in the new settlements.
Furthermore, the Applicants were compensated for the structures they had erected on the land they occupied in the CKGR. They were then allowed to dismantle those structures and the material they had used to construct those structures was transported to the new settlements where the Applicants used it to build their dwellings on their new plots. The Applicants are not challenging the adequacy of the compensation they received for the structures they had built in their settlements in the CKGR. It has been suggested in evidence by PW5 that she did not know what they were being compensated for on the ground that it was not explained to her what the compensation was for. However, I have no doubt that the Applicants knew and understood that the land they were allocated in the new settlements was in replacement of the land whose possession they had relinquished in the CKGR and further that the money they were paid was for the materials they had used to build their structures, including dwelling huts, in the CKGR. The evidence of the Respondent that since 1997 the relocation was a continuous process has not been disputed by the Applicants. After the first relocations in 1997 up to before the 2002 relocations, some residents relocated outside the CKGR from the settlements where the Applicants resided and those relocatees were paid compensation. I therefore find it improbable that the Applicants would not have known what those other residents who previously relocated were paid compensation for. The law accords equal treatment to all in that every person who desires to enter the Reserve must have a permit. In my view, therefore, there is nothing offensive in requiring the Applicants who relocated to obtain permits like everybody else in order to enter the CKGR. Further, “The New Shorter Oxford English Dictionary” defines the word “compensate” inter alia as to “make amends to, recompense” which last word it defines as to “make amends (to a person for loss, injury”). “The Concise Oxford Dictionary” defines the word “compensation” as “2 something, esp. money, given as recompense” while recompense is defined therein as “1 to make amends (to a person) or for (a loss etc.).” From these definitions, I have no doubt that the Applicants were paid the money they received and given plots they built their residences on at Kaudwane and New Xade for the loss of the sites or plots they occupied in the CKGR before the relocation. The receipt of compensation in the form of money as well as new plots in the settlements outside the CKGR was in replacement of the rights of the Applicants to occupy and possess land in the settlements inside the Reserve. I therefore do not agree that the Government's refusal to allow the Applicants to enter the CKGR unless they have been issued with a permit is unlawful and unconstitutional.
Issue No. 2. Whether the Government is obliged to restore the Provision of Services to the Applicants in the Central Kalahari Game Reserve?
Rulings: Paragraph 34 of the Judgement
In their original notice of motion, the Applicants sought a declaratory order that the Government was obliged, first, to restore to them the basic and essential services that it terminated from the 31st January 2002; and, seco ndly, to continue to provide them with the basic and essential services that it had been providing immediately prior to the termination of the provision of those services. The consent order on this issue however, only directs the Court to establish after hearing evidence whether the Government is obliged to restore the provision of services to the Applicants in the CKGR. In my view, if the Court were to find on the first issue that the termination of the provision of services to the Applicants in the CKGR was unlawful, it would have to decree that the Government is obliged to restore the provision of those services to the Applicants in the CKGR, otherwise the finding that the termination of services was unlawful would be hollow and meaningless. I have already found on the first issue that the termination of the provision of services to the Applicants by the Government was neither lawful nor unconstitutional because I am satisfied on the evidence that the decision to terminate the provision of services to the Applicants was made after the Government had consulted the Applicants, who I am also satisfied knew and were aware from those consultations that the provision of such services would be terminated at some point in the future. For the reasons stated in support of those findings, therefore, it follows that the Government is not obliged to restore the provision of services to the Applicants in the CKGR.
In the premises, I have come to the conclusion that the Government is not obliged to restore the provision of services to the Applicants in the Central Kalahari Game Reserve.
Issue No. 3. Whether Subsequent to 31st January 2002 the Applicants Were:
(i) In Possession of the Land Which They Lawfully Occupied in Their Settlements in CKGR
Rulings: Paragraph 40 of the judgement
I do not agree that the occupation of land in the settlements in the CKGR by the Applicants was unlawful even though the CKGR is state land and is owned by the government, the fact of it being state land having been conceded by the Applicants as I stated earlier. I take the view that the occupation of this state land by the Applicants was lawful for the simple reason that their occupation had not been lawfully terminated by the Government; and until such occupation was lawfully terminated by the owner of the CKGR, it could not be successfully contended in my view that the Applicants occupied the land in their settlements unlawfully. As this was state land, the Applicants occupied it at the sufferance or passive consent of the Government but that did not and could not mean in my judgment that their occupation of that land was unlawful, especially when regard is had to the fact that both the British Government and its successor in title, i.e. the Botswana Government, allowed or permitted the Applicants to remain on and use that land over many years. For the avoidance of doubt, therefore, I find as a fact that the occupation of the land in the settlements by the Applicants in the CKGR was lawful.
Issue No. 3 (ii) Deprived of Such Possession by the Government Forcibly or Wrongly and Without Their Consent.
Rulings: Paragraph 46 of the judgement
The evidence before this Court shows that some of the residents or Applicants never relocated from the CKGR notwithstanding that the provision of services to the residents was terminated by the Government at the latest at the beginning of March 2002; for instance, it is common cause that PW2, PW3 and the former Councillor, Mr. Moeti Gaborekwe, who the Court met at Metsiamanong during the inspection of the settlements in July 2004, did not relocate. Furthermore, when the Court conducted an inspection of the settlements in the CKGR before the trial started, there were visible signs that some of the residents who had previously relocated had returned or were returning to Metsiamanong and Molapo because at that time some people had recently completed building new huts while others were in the process of constructing new huts in those settlements; this was so notwithstanding that the provision of services inside the CKGR had been terminated by the Government some two years back. It will be recalled that in early November 2002 the Ghanzi District Council appointed a Task Force to carry out an inquiry” to find out why people were returning to the CKGR,” I have already referred to the Report of that Task Force which is Exhibit “P93”. The establishment of this task force in November 2002 demonstrates that former residents of the CKGR were returning to the Reserve notwithstanding that the provision of services in the CKGR had been terminated by the Government some nine or ten months back and had not been restored to the settlements. The Applicants have not even attempted to explain why, if their allegation that the termination of the provision of services to the settlements in the CKGR forced them to relocate is to be believed, some of them and other former residents of the CKGR who relocated have now returned to the settlements in the CKGR where they have settled notwithstanding that the provision of services has been terminated and that those services have not been restored to the settlements in the CKGR. This has been pointed out by Counsel for the Respondent in his written submissions who has further correctly submitted, in my view, that part of the evidence of Mr. Albertson (PW9) shows that before the 2002 relocations some of the residents in the settlements inside the CKGR left the Reserve permanently almost every year to leave outside the Reserve and that this was demonstrated by the reduction of the populations in the settlements notwithstanding that the services were being provided inside the Reserve which supports the contention of the Respondent that in 2002 the residents did not necessarily relocate as a direct consequence or result of the termination of the provision of services in the CKGR by the Government.
It will be recalled that one of the contentions of the Applicants is that the termination of the provision of services by the Government was unlawful because they were not consulted before the decision to terminate the services was made by the Government notwithstanding that the Applicants had a legitimate expectation that they would be consulted before the decision to terminate the services, which was likely to adversely affect them or their interests, was made. It will further be recalled that, except for one witness, the witnesses called by the Applicants testified that they did not need the services in any event. I have already found in deciding issue number one that there is ample evidence from both the Applicants and Respondent which proves that the Applicants were consulted and even told that the provision of services to them in their settlements was temporary before the decision to terminate the provision of those services was made by the Government, and that as a result, the termination of the provision of those services by the Government was lawful. Arising from those findings it cannot, in my view, be successfully contended that the Applicants were forcibly or wrongly deprived of possession of the land they occupied in their settlements in the CKGR by the Government. In my judgment, the contention of the Applicants that the Government forcibly or wrongly deprived them of possession of the land they lawfully occupied in their settlements in the CKGR has no merit and must fail.
Issue No. 4. (a) issue special game licences to the Applicants is unlawful and unconstitutional
Rulings: Paragraph 49 of the judgement
The CKGR was established by the High Commissioner's Notice No. 33 of 1961 (Exhibit “P43”) dated 14th February 1961 pursuant to the provisions of Section 5(1) of the Game Proclamation (Chapter 114 of the Laws of the Bechuanaland Protectorate, 1948 - Exhibit “D42”) which provided that the High Commissioner may from time to time by Notice in the Gazette declare any territory to be a Game Reserve. The High Commissioner's Notice establishing the CKGR did not establish the reserve for anything else other than a game reserve; in other words, that notice did not state that in addition to the CKGR being a Game Reserve it was also a Reserve for the Basarwa. It is contended on behalf of the Applicants that the Reserve was established not only as a sanctuary for wildlife but also as a reserve or homeland for the Basarwa, and this contention is predicated on the arguments or proposals that were advanced at about the time the CKGR was established. One such proposal was that the game reserve should not only be established to conserve game but should also be established “to protect the food supplies of the existing Bushmen in the area from the activities of the European farming community at Ghanzi and visitors to the territory who were entering the area in increasingly large numbers either to poach game for biltong or to shoot predatory animals such as lion and leopard for their skins” (vide Exhibit P64 dated 9th February 1961 at page 36 in Bundle 2B). It was argued at the time the CKGR was established, as it is being argued now, that the intention in establishing the reserve was to establish a game reserve as well as a place where Basarwa may reside and hunt freely. At one stage after its establishment, it was even proposed that the CKGR should be changed to a Bushmen Reserve. For example, some three years after its establishment it was proposed that:
“The Reserve should be established as a reserve for Bushmen, rather than remain a Game Reserve, as their hunting is presently quite illegal and there would appear to be political advantage in making it clear that the Reserve is primarily for Bushmen and secondarily a game reserve” (vide Exhibit P76 dated 10th April 1964 at page 49 in Bundle 2B).
Although these proposals were advanced at and after the establishment of the CKGR it is very important and significant that when the CKGR was finally established there was no doubt or ambiguity as to the purpose for which it was established; namely, a game reserve. The High Commissioner's Notice No. 33 of 1961 dated 14th February 1961 (Exhibit P43) which established the CKGR states:
“It is hereby notified for general information that His Excellency the High Commissioner has been pleased to declare part of the Ghanzi District which lies to the east of meridian of longitude which passes through the highest point of the hills known as Great Tsau shall be a Game Reserve, to be known as The Central Kalahari Game Reserve.”
I have already stated that this Notice was made pursuant to the provisions of section 5(1) of the Game Proclamation, Chapter 114 of the Laws of Bechuanaland, 1948. The wording of this Notice is clear and unambiguous that by law the CKGR was established as a game reserve and for no other purpose; and it was established for that purpose only in spite of the several proposals that it was also to be a reserve for the Basarwa. In my view, if the High Commissioner or British Government at that time had wanted or intended the CKGR to be a game reserve as well as a Bushmen Reserve that would have been provided for or spelt out in clear terms in the High Commissioner's Notice No. 33 of 1961 that established the CKGR. The arguments that this Court should find that the CKGR was established as a sanctuary for wildlife as well as a reserve for the Basarwa are not new; they were advanced and rejected at the time of the establishment of the CKGR. I therefore see no justification to read into this Notice, as the Court has been urged to do, that which was never intended to be implied as forming part of the High Commissioner's Notice No. 33 of 1961 whose wording is patently clear as to the purpose of establishing the CKGR; namely, a game reserve and nothing more and nothing less. As the wording of the notice establishing the CKGR is clear and unambiguous, I take the view that it should not be interpreted by having regard to the arguments that were advanced and rejected before or at the time the Reserve was established. Section 5(2) of the Game Proclamation outlawed hunting in a Game Reserve but Section 14(2) thereof gave the Resident Commissioner discretion to grant any person a special permit to hunt in a Game Reserve for specific purposes. Before the British Government established the CKGR in 1961, the residents of Central Kgalagadi, who included the Basarwa, hunted game in that part of the country and the establishment of the CKGR therefore rendered unlawful their hunting of wildlife in the CKGR That the establishment of the CKGR had the effect of rendering unlawful hunting by the Basarwa in that Reserve was acknowledged in the statement quoted above from Exhibit P76 that “their hunting is presently quite illegal” and also by Dr. Silberbauer, (PW1), who was the Bushmen Survey Officer in 1961 and was also one of the people who were instrumental in the establishment of the CKGR. He testified that while the British Government knew that it was illegal to hunt game in the CKGR following its establishment, they looked at the illegal hunting by the Basarwa in the CKGR with what he termed “Nelson's Eye”; which he explained to mean that when faced with such illegal hunting the authorities looked the other way round or pretended that hunting by the Basarwa in the CKGR was legal when as a matter of law the reverse position was the case.
Para.graph 50 of the judgement- Section 12(3) of the Wildlife Conservation and National Parks Act, Cap 38:01, outlaws hunting in a game reserve except only in accordance with the terms and conditions of a permit issued under Section 39. Section 39(1) (b) of the same Act gives the Director of Wildlife and National Parks (the Director) a discretion to grant permits authorising –
“(b) the killing or capturing of animals in the interests of conservation, management, control orutilization of wildlife.”
What is clear from the legislation at the time of the establishment of the CKGR and from the successive pieces of legislation since then is that hunting in the CKGR by the Basarwa has never been a matter of right but has always been at the discretion of those under whom the responsibility for the CKGR falls. Section 92 of the Act gives the Minister power to make regulations to give force and effect to the provisions and for the better administration of the Act. Regulation 45(1) of the Wildlife Conservation and National Parks Regulations 2000 made by the Minister pursuant to the provisions of Section 92 of the Act provides that –
“45(1) Persons resident in the Central Kalahari Game Reserve at the time of the establishment of the Central Kalahari Game Reserve, or persons who can rightly lay claim to hunting rights in the Central Kalahari Game Reserve, may be permitted in writing by the Director to hunt specified animal species and collect veldt products in the game reserve and subject to any terms and conditions and in such areas as the Director may determine,” (my emphasis).
Again, what is clear from the provisions of sub-regulation 45(1) is that it is within the discretion of the Director to grant or not to grant permission in writing to hunt to persons who were either resident in the CKGR when it was established in 1961 or who can rightly lay claim to hunting rights in the CKGR; in other words, the provisions of this sub-regulation are not peremptory but permissive in regard to the Director's power to grant permission to persons mentioned therein to hunt in the CKGR. Regulation 3(1) of the Wildlife Conservation (Hunting and Licensing) Regulations 2001 also made by the Minister pursuant to the provisions of Section 92 of the Act outlaws the hunting of a game animal by any person whatsoever unless such person has been issued with a licence to do so and under sub- regulation (2)(d) thereof one such licence which may be issued is a special game licence. It is provided in regulation 9(1) to (3) of these 2001 Regulations that –
“9. (1) A special game licence shall be issued free of charge. The special game licence shall be valid for a period of one year. The special game licence may only be issued to citizens who are principally dependent on hunting and gathering of wild products for their food and such other criteria as may be determined by the Director” (my emphasis).
Pararaph 51 of the Judgement
The Applicants have led no evidence in these proceedings to show that they are principally dependent on hunting for their food notwithstanding that the burden of proof was on them to do so. In fact, the evidence before the Court shows that the Applicants are not principally dependent on hunting for their food because that evidence shows that their life in the CKGR had increasingly become sedentary in their settlements from which game had moved further and further away, making the ability to find such game difficult unless one used horses to travel long distances. Evidence before the court also shows that the Applicants did not principally depend on hunting for their food because they cultivated crops such as maize, beans and melons and kept domestic animals like goats and chickens as a source for their food. For instance, PW6 told the Court that when Assistant Minister Kokorwe addressed a meeting of the residents at Molapo in August 2001 on the withdrawal of services, they told her that she could take away her services and they would live on their crops. As the issuing of special game licences to the Applicants on a yearly basis was at the discretion of the Director of Wildlife and National Parks, it follows that special game licences were not issued as a matter of legal right to the Applicants; in terms of the law, the Director may refuse to issue special game licences. This is, however, not the end of the matter because the discretion conferred by statute on the Director of Wildlife and National Parks to issue special game licences to the Applicants in the CKGR has to be exercised judicially by him. The Applicants and residents of the KGR have over some years been issued with special game licences on stated conditions, and there is no doubt that the decision to stop the issuing of special game licences was altering a practice which the Applicants had come to expect from the Government. This decision was therefore bound to affect the Applicants or their interests adversely in that they would no longer be able to hunt game in the CKGR but there is no evidence or suggestion that the Applicants were given the opportunity to make representations before the decision to stop the issuing of special game licences was made. In our law it is accepted that a public authority may under certain circumstances be bound to give a person who is affected by its decision an opportunity of making representations if that person has an interest of which it would not be fair to deprive him without first giving him a hearing. As the Director of Wildlife and National Parks “did not give the Applicants an opportunity to make representations before he made the decision to stop the issuing of special game licences to them which decision was likely to affect the Applicants or their interests adversely that decision was invalid and falls to be set aside. The constitutionality of the action of the Director of Wildlife in refusing to issue special game licences does not arise in this instance because the enabling legislation gives him the discretion when it comes to issuing special game licences to the Applicants, all that is required is that the Director should exercise the discretion conferred upon him judicially.
In the premises, the Government's refusal issue special game licences to the Applicants was unlawful and is set aside.
Issue No. 4 (b). allow the Applicants to enter the CKGR unless they have been issued with a permit is unlawful and unconstitutional.
Rulings: Paragraph 52 of the judgement
Although the Applicants argue that the Government's refusal to allow them to enter the CKGR unless they have been issued with a permit is unlawful and unconstitutional, the difficulty “in deciding this issue is again caused by the fact that none of the Applicants has come forward to give evidence in regard to how and when he or she was denied entry into the CKGR; what is before the Court are the allegations by the First Applicant on this issue who has elected not to give evidence so that his allegations may be tested in open Court; and who notwithstanding his allegation that he was denied entry into the Reserve did enter the Reserve in any event without a permit. It is one of the Respondent's witnesses who gave evidence which was not refuted by the Applicants and which I therefore believe that it was only when some of the former residents tried to enter the Reserve at an ungazetted point that they were prevented from doing so. It will be recalled that the Applicants have conceded, and it is now common cause, that the CKGR is state land. This means that ownership of the CKGR is vested in the Government. It follows therefore that as owner of the CKGR, the Government can exercise all rights of ownership in respect of the CKGR, including the right to determine who may come into the CKGR and under what terms and conditions, and the right to decide who may or may not go into the CKGR. Based upon the Applicants' admission that the CKGR is owned by the Government, it follows that the Government has the right to impose conditions as to how any person, including the Applicants, may enter the CKGR. The position now is that the Government as owner of the CKGR wants the Applicants to obtain permits before they can enter the CKGR, and this is a proper exercise of one of the rights of ownership on the part of Government which the Government is entitled to do.
Final Order of the High Court
Paragraph 55 of the Judgement
Finally, in view of the decisions reached by each of us, the court makes the following Order:
1. The termination in 2002 by the Government of the provision of basic and essential services to theApplicants in the CKGR was neither unlawful nor unconstitutional. (Dow J dissenting).
2. The Government is not obliged to restore the provision of such services to the Applicants in the CKGR. (Dow J dissenting)
3. Prior to 31 Jan 2002, the Applicants were in possession of the land, which they lawfully occupied in their settlements in the CKGR. (unanimous decision)
4. The Applicants were deprived of such possession by the Government forcibly or wrongly and without their consent. (Dibotelo J dissenting)
5. The Government refusal to issue special game licenses to the Appellants is unlawful (unanimous decision)
6. The Government refusal to issue special game licenses to the Applicants is unconstitutional (Dibotelo dissenting)
7. The Government refusal to allow the Applicants to enter the CKGR unless they are issued with permits is unlawful and unconstitutional. (Dibotelo dissenting)
8. Each party shall pay their own costs. (Dow dissenting)
Delivered in open court at Lobatse this 13th day of December 2006.