in the high court of the republic of botswana held … · in the high court of the republic of...
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IN THE HIGH COURT OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE CVHLB-000774-07
In the matter between: GAREBANTSI H. SEJABODILE 1ST PLAINTIFF
ELIAS M. RAMOSU 2ND PLAINTIFF
and CUSEN MESOTLHO 1ST DEFENDANT
KWENENG LAND BOARD 2ND DEFENDANT Mr Attorney T.S. Chilume for the 1st Plaintiff Mr Attorney B.D. Leburu (with Ms K.M. Bagwasi) for the 2nd Plaintiff Adv. S.T. Pilane (with Ms K. Raletsatsi) for the 1st Defendant
J U D G M E N T
KIRBY J:
1. In this action the first plaintiff, Garebantsi H. Sejabodile (“Sejabodile”) and
the second plaintiff Elias M. Ramosu (“Ramosu”) seek the eviction of the
first defendant Cuzen Mesotlho (“Mesotlho”) from the Farm G5, Kweneng
District, generally known as ‘Rebakwena’. No relief is sought against the
second defendant, the Kweneng Land Board, which has played no part in
the case.
2. Litigation between the parties began several years ago, although it
changed its character as time went by.
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3. In June 2002 Sejabodile launched an application against Mesotlho and
Ramosu in Case No. MISCA 303/2002 seeking similar relief against
Mesotlho but claiming joint costs against Ramosu as well. Affidavits were
filed in which Sejabodile claimed that Mesotlho was an unlawful trespasser
on Rebakwena, of which he (Sejabodile) and Ramosu were the joint long-
lessees under a written “Grant of the Tribal Grazing Land Policy Lease”
dated 26th February 1982 (“the TGLP Lease”). Affidavits were filed by
both Mesotlho and Ramosu. Ramosu claimed that Sejabodile had
deserted the farm for ten years (until 2002). Mesotlho was lawfully there
at his (Ramosu’s) invitation in terms of an understanding that either of the
co-lessees could allow family members or close friends to graze on the
farm. He was paying no rental for grazing his cattle, but helped with
diesel and maintenance. Mesotlho’s affidavit was to like effect, claiming
that Ramosu had permitted him to graze his cattle there while he was
looking for suitable grazing land elsewhere. Sejabodile replied that he
had not consented to any such arrangement and persisted with his claim.
He denied deserting the farm, but said he had removed his cattle out of
necessity when Ramosu destroyed their borehole.
4. On 19th May 2003 Chatikobo J. found that the disputes between the
parties could not be resolved on paper and referred the matter to trial.
Sejabodile was to file a declaration within 21 days. This was never done,
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and the case remained dormant for four years until, in June 2007,
Ramosu issued a fresh summons out of the High Court in CVHLB-000774-
07 against Mesotlho, also claiming the eviction of Mesotlho from
Rebakwena. His case was (and is) that he had allowed Mesotlho to graze
and water his cattle on Rebakwena only while he was looking for suitable
grazing land for himself. In return he would assist with fencing and the
purchase of diesel. Four years had now elapsed, which was more than
enough time to find alternative grazing and the parties had fallen out. He
had therefore withdrawn his permission to graze, and Mesotlho should be
evicted.
5. Mesotlho’s plea and counterclaim traversed new ground. He now denied
that Ramosu was a co-lessee, in that Ramosu had sold his rights to the
farm to Mesotlho on 22nd February 2002, and he was thus in lawful
occupation in his own right. He counterclaimed for the eviction of
Ramosu, together with damages.
6. At about the same time an application for summary judgment was filed,
and certain affidavits were also filed both in support of and in opposition
thereto. These included a sworn police statement and a lengthy sworn
‘trial deposition’ from two of Ramosu’s sons, supporting Mesotlho’s version
of events. I shall return to these later.
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7. On 6th October 2008 a consent order was made in terms of which the
summary judgment application was withdrawn and cases numbers MISCA
303/02 and CVHLB-000774-07 were consolidated as a single action. Fresh
pleadings were filed, which crystallized the issues for trial.
8. In their consolidated particulars the plaintiffs described themselves as co-
lessees of Farm G5. Sejabodile sought the ejectment of Mesotlho on the
grounds that no permission was sought from him or from the Land Board
before Mesotlho took occupation and, as the owner of an undivided share
in the farm, he objected to his presence. As fate would have it the trial
endured for well over a year. Sejabodile testified, but he was elderly and
unwell and he passed away before the conclusion of the trial. No
application was made for the substitution of his deceased estate or any
representative, thereof as a party in the case. His counsel, Mr Chilume,
informed the court that the estate was to be administered according to
customary law, and that no application for substitution would be made.
He and counsel for the other parties agreed that his claim would fall away,
and the trial should continue as between Ramosu as the sole plaintiff and
the defendants. Any related or other claims involving the estate would be
dealt with later, either as claims against the estate or as claims by the
estate. Accordingly no further consideration need be given to Sejabodile’s
case for the eviction of Mesotlho.
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9. For his part, Ramosu sought the eviction of Mesotlho on his original
grounds as set out above, save that he now averred that six years had
elapsed which was a more than reasonable period within which to look for
suitable alternative grazing land. Despite being given notice to vacate,
Mesotlho had failed to do so. His continued occupation was thus unlawful
as it was without the consent of either Sejabodile or Ramosu.
10. In his plea to the consolidated particulars Mesotlho denied that Ramosu
was any longer a co-lessee of Rebakwena, since he had sold his rights to
Mesotlho on 22nd February 2002. His occupation was of Ramosu’s former
share of the farm, which was lawful, since in terms of the TGLP Lease no
Land Board permission was required by Ramosu in order to cede his rights
to Mesotlho. He denied any verbal agreement, as contended for by
Ramosu, to graze and water his cattle as a favour until he found another
place.
11. Mesotlho also filed his own claim in reconvention, which, since the late
Sejabodile is no longer a party, can only avail him for relief against
Ramosu, if the counterclaim is proved. The Kweneng Land Board has
expressed no interest either in the claim or the counterclaim, and thus
abides the decision of the court. It raises no question of any illegality in
the deed of cession relied upon.
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12. The counterclaim, in concise form, runs as follows:
(a) Ramosu was an equal joint lessee and co-owner of real rights in Farm G5.
(b) In terms of Clause 9 (a) of the TGLP Lease Ramosu, as grantee, was authorized to cede his rights in the farm to third parties without the consent of the Kweneng Land Board.
(c) Ramosu and his co-lessee Sejabodile had no relationship other than
that of co-owners of the leasehold rights to Rebakwena.
(d) On 22nd February 2002 Ramosu and Mesotlho entered into a
written agreement of cession in terms of which Ramosu sold to Mesotlho all his right and title in and to the farm for P330,000.
(e) Mesotlho paid the price in full and took occupation of his portion of
the farm in April 2002. (f) Ramosu has breached the agreement by:
(i) Failing to facilitate the formal registration of the cession of his rights with the Land Board;
(ii) Disturbing Mesotlho’s possession, by disconnecting the water
supply to his cattle, and by introducing hundreds of his own cattle onto Mesotlho’s portion; and
(iii) By instituting the present eviction proceedings.
(g) Mesotlho has suffered damages of P45,000 arising from these breaches.
Accordingly he seeks, as against Ramosu:
(i) A declaritur of his rights under the cession agreement, namely that
he is a co-owner of the leasehold rights to the farm;
(ii) Specific performance by Ramosu of his obligations thereunder, namely to sign all documents necessary to register the transfer of rights;
(iii) The eviction of Ramosu from the farm; and
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(iv) Damages of P45,000. ALTERNATIVELY, Should the court find that the cession was not lawful, then
(a) Ramosu negligently or fraudulently represented to Mesotlho that he
had the right to sell his rights;
(b) He has suffered damages calculated at P344,000 for developments
made by him on the farm and P350,000 being the cost of relocating to another grazing facility.
In that event, he claims: (a) Refund of the purchase price of P330,000;
(b) Damages of P694,000.
In either case, he seeks an order for costs.
13. Ramosu’s replication and plea to the counterclaim reflect his position in
the declaration, and may be summarized as follows:
(a) He denies that Ramosu and Sejabodile are co-owners of Rebakwena, rather they are co-lessees in undivided shares, with no
subdivisions effected for their individual use, each having a say in what happens on the farm.
(b) The agreement of cession and the payment of P330,000 by
Mesotlho are both denied.
(c) In 2002 the sum of P116,900 was advanced by Mesotlho to
Ramosu as a loan to settle a pressing debt owed by him to Metsi
Drilling (Pty) Ltd. (d) Ramosu cannot read or write English, and he was fraudulently
induced by Mesotlho to sign the cession agreement on the representation that it related only to the loan of P116,900.
(e) There was neither a sale by Ramosu of his rights in the farm nor
any mention of such.
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(f) An acknowledgment of receipt apparently signed by Ramosu for P330,000 is a forgery.
(g) ALTERNATIVELY, the rights to the lease were indivisible and could
not in law be ceded as alleged.
(h) FURTHER ALTERNATIVELY, such an agreement could not lawfully
be entered into without the consent of Ramosu’s wife and of
Sejabodile.
(i) Developments by Mesotlho and the amounts claimed therefor are denied save that Mesotlho replaced an existing reservoir with a bigger one, which was more than compensated for by the free
grazing he had enjoyed for six years; and (j) The counterclaim should accordingly be dismissed with costs.
14. I note that both Ramosu and Sejabodile sued as individuals and not as a
partnership, and that nowhere in the pleadings was a formal partnership
between them alleged by either side. This is of relevance because
extended argument was later presented on this issue, although it was not
one of those listed for determination in the pretrial order of 8th June 2009.
15. For the plaintiffs, Sejabodile and Ramosu both testified, and Ramosu
called one additional witness, his son Phemelo to the stand. On the
defendant’s side, Mesotlho gave evidence and called six further witnesses
to support his case.
16. Garebantsi Sejabodile told the court he was a farmer, aged 80 years. He
did his best, but it was clear that he could not remember years properly
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and could not describe relative numbers of cattle kept on Rebakwena by
the parties, saying only that he did not count cattle. He was allocated
Farm No. G5 by the Land Board in 1981. His nephew Elias Ramosu
requested to join him and they agreed to be partners, forming the
Success Syndicate (I note for the record that neither the TGLP Lease not
any other documents refer to this syndicate, nor is there any suggestion
that it had a constitution or other founding document).
17. The TGLP Lease was produced, and the following were some of its
relevant features:
(1) It was a renewable 50 year lease of Farm G5 in extent 5,700 hectares commencing on 1st January 2001 at a rental of P0.04 per ha per annum (P228 p.a).
(2) It was granted by the Land Board to “S.G. Sejabodile/E.M.
Ramosu” as “the grantee”.
(3) It was signed on 3rd December 1981 by Sejabodile (but not by
Ramosu), approved on 26th February 1982 by the Minister, and finally signed off by the Land Board on 3rd December 1982.
(4) Certain permissions were granted in Clause 9 (a), namely
“The Grantee may cede, assign, make over, mortgage, hypothecate or pledge directly or indirectly any of the rights in the lease.
Provided that the Grantee may not sublet the leased land without the prior written consent of the Grantor which consent shall not be unreasonably withheld.”
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(By this clause the Land Board consented in writing to the listed transactions, including cession of rights, but required an additional prior written consent, which would not normally be refused, for subletting).
(5) Additional requirements of registration and endorsement were imposed in respect of mortgage, hypothecation or pledge, but these did not apply to cessions.
18. Sejabodile told the court he agreed with Ramosu to subdivide the farm
into seven paddocks and to graze their cattle together. There was no
agreement to allow third parties to graze on the farm. Ramosu was not
telling the truth in this regard. Mesotlho, he did not know at all, and had
never met him, although on May 3rd 2000 he found Mesotlho’s people
building on the farm. He then instructed lawyers to evict him. (On the
year, he was clearly wrong, as the lawyer’s letter is dated 2002, and that
is when the motion proceedings commenced). Mesotlho claimed he was
legally there, allowed by Ramosu, and Ramosu confirmed that. He said
he first met Mesotlho on 9th September 2008, at the farm (this date also
seems unlikely as litigation had by then been in progress for six years).
Mesotlho told him that when he heard he was not wanted by Sejabodile
he approached Ramosu, who said he, Sejabodile, was insane and in the
mental hospital. He did not want Mesotlho there and wanted him out.
19. Cross-examined, he said the reason why he sued Ramosu as well was
because Ramosu had originally indicated that he would leave the farm,
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but he did not do so. They had had a valuation done and Ramosu wanted
to be paid to leave. Then he changed his mind. He agreed that at that
stage he had left the farm because Ramosu destroyed his borehole, his
cattle disappeared, and he had nowhere to water them. In effect, he was
driven out. He could not get on with Ramosu as they were on bad terms,
but now they got on well again. He was hazy as to when he left, but
denied that this was in 1992. It appears likely that he returned, at least
to visit, in 2002, because that is when he would have found Mesotlho
there with his cattle. When he tried to redrill his borehole, Ramosu made
off with the pipes. Now, he did use Ramosu’s borehole. As to
developments, he claimed to have done all these himself – drilling three
blank boreholes and one good one, and fencing and paddocking the farm.
Ramosu was lying to claim that it was he who did the developments. He
conceded that the fencing had been redone with treated poles, which
were not his. It was only when led in re-examination that he changed to
concede that the initial developments – fencing and drilling – were done
with an NDB loan raised by him and Ramosu together. He also admitted
that Ramosu drilled his own boreholes and built his own house on the
farm.
20. Questioned on the number of paddocks on the farm, Sejabodile was
confused, and the numbers he gave did not tally in any way with the
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other evidence (including that of a valuer, who in September 2007 found
the farm well fenced into 13 paddocks). It is likely that having been
absent for many years, he was not aware of the numbers of paddocks.
He did concede though, that his and Ramosu’s main herds occupied
separate paddocks, with heifers and calves using shared paddocks. For
himself, he only had a few cattle left. He denied that Mesotlho had made
any improvements, and now claimed that Ramosu told him he had rented
out his portion of the farm to Mesotlho for three years, but the rent had
not been paid. On this he was not challenged by Ramosu’s counsel.
21. Generally, I found Sejabodile to be a straightforward person, but through
age and memory loss he was not clear on events at all. He had certainly
been away from the farm for a considerable period, and during his
absence he was unaware of what Ramosu, and later Mesotlho, were up to
on the farm. He always regarded himself as one of the co-owners of the
farm, although he overstated his own contribution to the developments
thereon, and he remained a co-owner of the leasehold rights in the farm
until his passing.
22. Elias Ramosu, a 61 year old farmer, differed significantly in his evidence
from the version of Sejabodile. According to him, he and Sejabodile
applied jointly for the farm, although he did not sign. The pair sold cattle
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to pay for the borehole, and raised a National Development Bank loan to
pay for fencing (boundary + 7 paddocks). They built kraals, reservoirs
and a cattle crush, and drilled two more blank boreholes. Then he
subdivided one paddock into four and another into two, to make 13
paddocks, and he alone led water to all these camps. He also added
another reservoir and built an 8 roomed dwelling house on his own.
Other boreholes too, he drilled alone.
23. As for Mesotlho, he had known him for a long time. In 2002 he was
under pressure as his machinery and cattle were attached to recover a
debt due to Metsi Drilling. Mesotlho came to his rescue by making him a
loan of P116,900 which was paid to Kgafela Attorneys to cover his debt.
He also helped Mesotlho out by giving him a place to graze his cattle for
three years.
24. On the third day after paying over the loan, Mesotlho called him to his
office where he asked him to sign an agreement, “so that if anything
happened to him his wife and children would repay the loan.” Since he
could not read English Cuzen Mesotlho translated for him. The loan was
only made so that he need not sell cattle under pressure. He owned over
900 head, including pedigree Charolais, pedigree Brown Swiss and
pedigree Simmentalers. He also ploughed over 1,200 hectares of land as
14
an arable farmer. Mesotlho gave him no other money, nor had he repaid
any part of the loan right up to the present (8 years later). He claimed
that after paying over the loan Cuzen requested the TGLP Lease to ‘prove’
that he owned it jointly with Sejabodile, and he gave this to him.
25. As for Sejabodile, he had moved to Seletso Borehole and had been out of
the farm for ten years by 2002, although he left a few cattle there. He
drilled four boreholes in Sejabodile’s absence, and did not inform him of
Mesotlho’s presence as he was not on the farm. Mesotlho moved in in
early 2002 and they had shared the farm right up to the present.
Mesotlho never paid any rent, but said he was still looking for suitable
grazing land. That is what he said too in his affidavit commissioned in
September 2002, when they both resisted the application by Sejabodile to
have Cuzen evicted (one of the proceedings consolidated in the present
case). That affidavit was filed of record, and in it Mesotlho claimed that in
April 2002 Ramosu approached him like a brother and informed him that
he could graze and water his cattle at Ramosu’s farm while he was looking
for grazing land. He explained that Sejabodile would have no problem as
both could allow relatives and close friends to graze there. In exchange
he helped with a drum of diesel from time to time.
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26. I note that Ramosu himself filed an affidavit in the same proceedings in
which he claimed, inter alia, that although the old man was his co-lessee
on the farm, Sejabodile had been away from the farm for 10 years from
1992 – 2002 because they could not co-exist peacefully.
27. He went on to say:
“Applicant (Sejabodile) has absolutely no interest in the farm and
merely wishes to bully me around. To show that he has no interest in the farm, he deserted the farm for ten years and I am the sole person who have carried out all developments on the farm, now worth over P722,506-45.”
In neither affidavit was the payment of P116,900 by Mesotlho mentioned
at all, nor was any cession or sale.
28. On the question of developments, Ramosu said Mesotlho only replaced
with a bigger one an existing reservoir, which he demolished, and helped
repair fences. He replaced the bush poles on the kraals with treated gum
poles “to impress his visitors.” After upgrading the fence, he destroyed it
by removing poles, and then overgrazed the area. He did also replace the
borehole engine when the original one broke down. It was on his arrival
in 2002 that he demolished the old reservoir and built a new one. All his
developments were done in 2002 – since then he only caused destruction.
This had a negative value far higher than his developments.
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29. Ramosu produced the bank statements of his limited liability company,
EMR & Sons (Pty) Ltd, to demonstrate that he had not received any
further payments from Mesotlho to make up the total of P330,000
referred to in the exhibited agreement.
30. This agreement, which Ramosu said he believed to be a loan agreement,
was produced. It is a six page professionally drawn document headed
“Agreement of Cession,” signed by Mesotlho and Ramosu, and witnessed
by Ramosu’s son Nelson Happy Ramosu, on 22nd February 2002. It is
nothing like a loan agreement at all. It deals in great detail with the sale
by cession to Mesotlho of all Ramosu’s right and title (namely a 50%
share) in the farm G5. It annexes the TGLP Lease, and describes the
improvements being sold as:
“2.1 Water Reticulation System 10 km 2.2 Water Reservoir 16 m diameters x 3 m high
2.3 10 kraals 2.4 2 garages 2.5 8 paddocks 2.6 Fire breaks 2.7 2 x 2 roomed cottages
2.8 3 boreholes with water 2.9 3 blank boreholes”
31. The price was set at half the value of the farm, that is P660,000 divided
by two or P330,000, payable as to P116,900 on signature, and the
balance of P213,100 within seven days thereafter.
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32. Ramosu admitted also taking a short loan of P50,000 from Mesotlho in
2002 but claimed to have repaid this. (I note that this sum too does not
appear in his exhibited bank statements). Shown a document headed
“Confirmation of Receipt of Full and Final Payment” apparently signed by
him, and dated 2nd May 2002, he denied knowledge of this. His signature
on it was, he said, a forgery. He was shown this at the police station,
where Mesotlho claimed it was written by the lawyer Collin Duncan in his
presence. The document purported to confirm receipt by him of P330,000
in full and final settlement of sums due under the Deed of Cession. It also
bore Collin Duncan’s FAX number at the top, with the date of dispatch
recorded as 18th July 2002. This document was the subject of forensic
examination, and I shall refer to it further below. Ramosu denied outright
ever selling his share of the farm to Mesotlho at all. For that to happen,
he said, he would have needed to consult Sejabodile. Mesotlho had over
500 head of cattle on the farm, and the going rate for the lease of grazing
was P30 per head per month. He referred the court to a letter dated 21st
May 2007 (which I note was written after he launched these eviction
proceedings) in which he informed Mesotlho that thenceforth he intended
charging grazing fees in that sum. However, Mesotlho had never paid a
thebe. He himself had 440 head of cattle on the farm, and Sejabodile less
than 100 head.
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33. Also filed was an agreement of sale, couched in the language of a cession,
and dated 16th January 2004. It was signed by Ramosu and his wife as
cedents, and by Mesotlho as cessionary, with Mesotlho’s sister Hilda as a
witness. By this it was said that Ramosu sold his right and title to the 8
roomed farm house on the Farm G5 to Mesotlho for P70,000 (the original
price of P75,000 being amended in hand script and signed by the parties).
In its preamble it referred back to the cession agreement of 22/2/2002.
Ramosu denied ever agreeing to sell the house, only to rent it out to
Mesotlho, at his request. However, the idea was abandoned and the
agreement was never implemented. The rental was P70,000 because the
lease was to have been for some years. Again it was Mesotlho who
interpreted the agreement to him, and it was Collin Duncan who prepared
it. He was misled into believing it was a lease.
34. In 2006 he asked Mesotlho to move out, because he had cut fences and
was destroying the farm. They could no longer get along together and
Mesotlho publicly insulted him. The farm, he said, belonging to him and
Sejabodile as co-owners and relatives. It was not partitioned, and they
shared all of it.
35. Shown a lengthy trial deposition sworn by his son Nametso Steve
Ramosu, which supported Mesotlho, he said that that was all a pack of
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lies. He denied that he regularly consulted the family on family issues, or
that he had told Steve and the family that he had sold his portion of the
farm to Mesotlho for P330,000. Various other aspects of this deposition
were also put to him, which he said were all lies. The deposition was
sworn to after he and Nametso had a misunderstanding and Nametso left
home. Nametso subsequently confessed to the family that he had been
promised a reward of money by a rich person if he made that untruthful
affidavit. I will deal further with that trial deposition later.
36. Shown a police statement, apparently made by his other son Phemelo
George Ramosu, and sworn to on 5th January 2008 in Mogoditshane,
which also confirmed the sale of the farm, he said Phemelo told him he
never made a statement at all. It was Nametso who had signed that
which was exhibited. Another earlier statement of Phemelo’s was then
shown to him, and he blandly told the court that Phemelo had “retracted”
that.
37. Ramosu was grilled for several days in cross-examination by counsel for
Mesotlho, Mr S.T. Pilane. He did not fare well, and numerous
inconsistencies and improbabilities in his evidence were brought to light.
Having initially insisted that the whole of Nametso’s trial deposition was a
pack of lies, he was forced to concede that almost all of it was true. It
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was only in reference to the purported sale of his share of the farm that
Nametso lied. Improbably, he suggested that it was in the offices of
Kgafela Attorneys that Nametso was offered P150,000 to commit perjury.
Most of the intimate family details it contained, including his own previous
brushes with the law, were correct.
38. On the question of developments he added that he and Sejabodile had
each built their own houses on the farm. After Sejabodile left, he alone
was responsible for developments – more boreholes, a reservoir, water
reticulation, and subdivision into 13 camps. He denied driving Sejabodile
out by sabotaging his borehole (as Sejabodile alleged), but said Sejabodile
left of his own accord when the borehole collapsed, in 1992. He only
returned with his cattle in 2008, sixteen years later, and these were less
than 100. Even then he did not contribute diesel. As for Mesotlho, the
only development he did was in 2002, whereafter it was all destruction by
him. In describing his own developments, he repeated almost verbatim
the list of developments said to have been sold in the agreement of
cession including 10 km of water reticulation. This was a fact peculiarly
within his own knowledge. Mesotlho, he said, destroyed the internal
fencing in 2004/5 so that six internal camps were no longer operational.
This contrasted with a professional valuation which Ramosu himself
tendered. This showed that in September 2007 the farm was still divided
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into 13 paddocks fenced with 8 strand wire and gum pole fencing. It
described the farm as “well serviced, with good improvements, and very
well maintained.”
39. Questioned about the signatures on the documents tendered, Ramosu
became hopelessly entangled. He admitted initialing each page of the
cession agreement, but denied outright signing the final page. This was
forged, he said, by the same person who forged his signature on the
acknowledgment of payment – a statement which was patently untrue,
since his signature on the cession had been admitted throughout, his plea
being that this was misrepresented as a loan agreement.
40. Two copies of his affidavit in the initial case, with identical content had
been commissioned on different dates by different police officers. He
claimed that the police had forged his signature on one for some
unfathomable reason – there could have been no possible motive for
doing so. He alleged that the police, with criminal intent, had caused his
son Nametso Steve to sign an adverse statement purportedly made by
Phemelo George, when in fact Phemelo had made no statement at all. In
this too he was wrong. Phemelo had in fact made an earlier statement,
but copies of the final pages of his and Phemelo’s statements had been
22
transposed in error after photocopying. It was his case that the police,
Mesotlho and his two sons had all made false statements against him.
41. On the crucial issues of his understanding of the cession agreement and,
to a lesser extent, of the house sale agreement, Ramosu’s answers were
also unsatisfactory. He based his whole case on his ignorance of English,
which enabled Mesotlho to cheat him in both instances. It became
apparent that in fact his knowledge of English, was quite good. On a
number of occasions he answered questions before they were interpreted
into Setswana. More than once he corrected the interpreter’s English, and
before answering questions on affidavits and other documents written in
English, he took time to peruse the other pages as well. Finally he had to
admit that he could read names and numbers in English, and could speak
a little English too. He could also read and write Setswana.
42. It emerged also that he ran a limited liability company, had negotiated
and signed bank loans, was a breeder of pedigree cattle, a grower of seed
for the Government, and had signed several short loan agreements
(where only he signed) after getting loans from Mesotlho too. In short,
he was a seasoned businessman, and it defies reason that he could
confuse a long and complex cession agreement, by which he sold rights to
a farm, containing a detailed list of improvements (which only he would
23
know), with a simple loan contract; or that he and his wife mistook an
agreement for the sale of a house for a lease. The farm cession was
drawn by a lawyer and witnessed by his own son.
43. In dealing with the contents of the farm cession, he also stumbled.
Although he admitted initialling the pages, he said the agreement he
signed contained, only the numbers 116,900 and no others. Shown a
page, initialed by him, which contained not only the P116,900 initial
payment, but also the purchase price of P330,000 and the balance of
P213,100, he claimed, absurdly, that the latter numbers were not there
when he signed – the page must have “given birth.” All in all, Ramosu’s
evidence as to his lack of understanding of the agreement he signed is
incapable of belief, and must be rejected on his own showing.
44. His evidence was also full of improbabilities. It is most improbable that as
an experienced and successful businessman, Mesotlho would lend him the
large sum of P116,900 out of largesse, with no terms of repayment and
interest free, of which, without protest, not one thebe was repaid in the
ensuing eight years. (Ramosu’s claim to the court that he was willing to
repay this rang hollow). It is also improbable that having not sold his
rights to the farm, (as he alleged) and Mesotlho having only a very
temporary right to graze his cattle, he would sell (or Mesotlho would buy)
24
his dwelling house on the farm; or alternatively (as he belatedly claimed)
that in those circumstances he would lease it at P1000 per month (or
Mesotlho would so hire it) for a period of nearly six years. Either scenario
would only make sense if Mesotlho had acquired long term grazing rights
on the farm. Ramosu’s claim that he could never sell his share of the
farm for P330,000 when it was worth millions also did not ring true. The
cession agreement was based on the value of improvements, since the
Land Board owned the land, and this was reflected in his earlier affidavit,
where he valued the improvements at P722,506 some months later. The
new professional valuation added a value for the long leasehold rights as
well, but even that adjudged the fair replacement value of the farm, in the
event of total destruction by fire, to be only P450,000.
45. Generally, I found Ramosu to be an intelligent witness, but dishonest, and
ready to resort to untruths on oath when he perceived this to be to his
advantage. His evidence will only be of value in those respects where it is
properly corroborated by other reliable testimony or documents.
46. The second witness for the plaintiff was his eldest son Phemelo George,
born in 1976, whose evidence of substance was brief. He told the court
that in 2002 a family meeting was held to discuss the pressing debt to
Metsi Drilling. The possible sale of cattle, and also of the fields and
25
homestead were discussed, but not selling the farm. Later his father
informed the family that Cuzen Mesotlho had assisted with a loan whose
terms he did not reveal. In 2005 their father reported that Mesotlho was
claiming to have bought the farm. He and his late brother Nelson Happy
Ramosu were shown the agreement, said to record the loan and they read
it page by page. Both had done Form V and knew English. They advised
him to see his lawyers, which he did.
[I pause to note that this agreement was not new to Nelson Happy, who
had signed it contemporaneously as a witness. I note too that in his
witness summary Phemelo told of a subsequent family meeting, where the
family was angry at Ramosu for signing that agreement. This was not
repeated in Phemelo’s evidence].
47. There followed a lengthy diversion touching on statements made or not
made by Phemelo to the police. This again centred on the filed statement
signed by Nametso Steve Ramosu, but authored in the name of Phemelo,
dated 5th January 2008 at Mogoditshane. This was, Phemelo said, a
forgery. His brother and/or the police had made a false statement in his
name alleging that his father sold the farm to Mesotlho. He went into
graphic detail, claiming that two police officers, Letsholathebe and Muzola,
had offered him money to make such a statement, but he refused. When
26
taxed on why this was not alleged either in his witness summary or in his
subsequent statement of 13th March 2008 made to the Serious Crimes
Squad, he blustered, saying that he was waiting for them to bring the
money, so that he would have something tangible to report. He denied
having made any prior statement to the police at all. Later it emerged
that the so-called “forgery” in fact arose from the photocopying and
compilation error referred to above.
48. Under intense cross-examination, Phemelo was forced to admit that this
was so. He also admitted that in September 2007 he had in fact made a
statement to the police. Now, however, he claimed that the police had
manufactured its contents. It was produced, and in it he stated that his
father had agreed to sell “part of his share of Rebakwena” to settle the
Metsi Drilling debt, and that it was Mesotlho who had bought those rights
to the farm. This statement was taken because the police wished to close
a malicious injury to property case brought by Ramosu against Mesotlho.
In court he claimed to have told the police that Mesotlho had merely
made a loan to his father. He also, improbably, said the police told him
they had thrown away that statement because it did not help Mesotlho’s
case.
27
49. Phemelo was an unsatisfactory witness, and in my view he was prepared
to lie whenever he thought this might assist his father. No reliance can be
placed upon his evidence. I shall, however, consider the probabilities
surrounding what was said in his first statement when assessing the
evidence of the police witnesses. Its contents were repudiated in his
March 2008 statement made at Serious Crimes Squad when reporting the
so-called “forgery.”
That concluded the case for the plaintiffs.
50. For various reasons the defence witnesses were called in random order,
but I will deal with the evidence of Mesotlho first.
51. Cuzen Mesotlho aged 63, told the court he was a farmer and a
businessman, carrying on business together with his two sisters. He had
studied up to Cambridge School Certificate level, and subsequently
attended management courses. He now owned Glazing Botswana (Pty)
Ltd, Auto Screen Centre (Pty) Ltd, Tyre Fix (Pty) Ltd, and CC Projects
(Pty) Ltd, as well as a herd of some five hundred cattle. He originated
from Thamaga, and knew Elias Ramosu and his family, who were also
from there. They were friends and in about 1997/8 he bought cattle from
Ramosu, which he added to his herd at Tshwabe Cattlepost in the
28
Kweneng District. He had no farm, but was looking for one. In December
2001 Ramosu visited him at Tshwabe and found his cattle scattered. He
saw the problem and offered to consult his family about giving him
grazing on his farm Rebakwena. At that stage he did not know of
Sejabodile’s interest in that farm. In January 2002 he returned to say the
family had agreed, provided that he helped with diesel, and by repairing
fences and paddocks. In February 2002 he moved his herd of cattle, then
numbering 825, onto Rebakwena.
52. About two weeks later Ramosu came to him in the company of his son
Nelson Happy Ramosu. He said his properties had been attached over a
debt and the family had decided to sell his share of the farm. At that
stage no price was mentioned, but he insisted they go back for further
consultation, and he would consult with his sisters too. After two days,
Ramosu was back, and both sides had consulted. This time price was
discussed. Ramosu valued the farm at P660,000, and wanted P360,000
for his share, as he had done all the improvements. This was bargained
down to P330,000, to be paid after the agreement was signed. An
auction sale was to be held that Saturday to satisfy his debt of P116,900
to Metsi Drilling, so Ramosu was in a hurry. He assisted by interceding
with Kgafela Attorneys to stop the sale, and they then went to their mutial
lawyer, Collin Duncan, to draw the agreement of sale. They issued the
29
instructions jointly and were given the draft agreement to take away and
study. Next Monday, on 22nd February 2002, the cession agreement was
signed by himself and Ramosu, with Nelson Happy Ramosu and Collin
Duncan signing as witnesses. This was done in Collen Duncan’s office.
Each page was also initialed by the parties and their witnesses, all being
together. Collin Duncan explained the agreement to them and they also
took it home to their families before signing. Duncan could speak
Setswana, and Ramosu could speak and read English, but not write it. No
objections were raised.
53. Of the purchase price, P116,900 was to be paid immediately to Kgafela
Attorneys, to settle the Metsi Drilling debt, and the balance was to be paid
within seven days. This was to be raised from the bank, but the bank
required a certificate from the Land Board that his share had been
transferred. Ramosu had a difficulty with this because he wished to claim
from Sejabodile for the developments, which he had done alone. If
Sejabodile knew he had sold his rights the claim might be frustrated.
Under the agreement Ramosu was to facilitate the transfer, and had not
mentioned any problem before. They both understood that Ramosu
would remain grazing his cattle on Sejabodile’s half, as Sejabodile had
long left the farm. This would continue until Sejabodile compensated
Ramosu for his developments.
30
54. That is why it was verbally agreed that Mesotlho could pay the balance
over time. By the time Sejabodile launched his eviction case, after finding
out about Mesotlho’s presence on the farm, the total balance had been
paid. As for himself, he could see no problem because Ramosu said
Sejabodile had been off the farm for ten years, and had made no
developments. The rule with tribal land was that the land could be taken
away if it was abandoned for five years. Ramosu had already built a
house on the farm, which was not included on the list of improvements
sold, and believed he would remain with Sejabodile’s share for good.
55. By late 2004 Ramosu and Mesotlho were at loggerheads, and in 2005 they
were fighting through lawyers, as Mesotlho sought transfer of his half of
the farm. He found out that Ramosu had written a letter to the Land
Board to block the transfer. He had also cut the water pipes taking water
to Mesotlho’s portion, and these were only restored following legal
intervention.
56. In September 2005 Ramosu denied knowledge of the cession agreement,
and Mesotlho responded by sending him a copy and also one of the 2002
document acknowledging receipt of the full purchase price. He confirmed
the correctness of a lawyer’s letter of 3rd February 2006 which referred to
direct payments totalling P281,844 and set off of P53,286-64 being
31
Ramosu’s share of improvements he had made up to November 2002.
Their agreement was that he would effect improvements (by replacing the
reservoir, and buying a new engine, borehole pipes and fencing materials)
and they would share the cost, with Ramosu to reclaim his share later
from Sejabodile, if he returned. Ramosu did not have the money, and
agreed to a se-off against the farm price.
57. The acknowledgement of receipt was prepared by Collin Duncan on their
joint instructions. It was faxed to Glazing Botswana, still unsigned. He
gave it to Ramosu, who later signed it, but not in his presence. He did
not notice the date written in, but two members of his staff witnessed the
signature. He firmly denied forging Ramosu’s signature on that
document. Asked about his affidavit in the Sejabodile eviction case, he
told the court that the mention of April as the month when he occupied
the farm was a mistake – actually he moved on in February 2002. He had
failed to mention his purchase of rights in the farm at Ramosu’s request,
since Ramosu did not wish to prejudice his claim against Sejabodile for
payment for developments.
58. Next he dealt with Nametso’s trial deposition, sworn on 11th January 2008.
Nametso had come to his office to tell him that there was a malicious
injury to property case against him, and that he (Nametso) had given a
32
statement to the police confirming that his father had sold his share of the
farm to Mesotlho. He expressed willingness to make a statement to
Mesotlho’s lawyers in the present case, as he “felt pity” for the wrong his
father was committing. He took Nametso to Attorney Kgafela’s office,
where Kgafela interviewed him and took notes. He (Mesotlho) did not
contribute. A draft deposition was typed up, which Nametso collected.
He later returned and signed the deposition. During the interview
Nametso revealed that Phemelo had also given a police statement
confirming the sale. Mesotlho denied ever inducing Nametso to make the
affidavit, or offering him a combi, cattle and money, as alleged. He never
paid him P3000, nor did he bribe or attempt to bribe the two police
officers who recorded Nametso’s and Phemelo’s statements. He did give
Nametso P60 for food and transport when he arrived from Maun to testify,
as he thought, on his behalf. He had no inkling that Nametso was going
to turn in court to disown his deposition and his two police statements.
59. In his counterclaim, the statement that he took occupation of the farm in
April 2002 was also an error. In fact it was in February 2002. He
estimated the costs of the developments he made at P344,000, including
rehabilitating the whole perimeter fence and repairs of paddock fences, as
well as those already mentioned. As for the acknowledgement of receipt
of full payment, there was confusion about dates, but for certain he had
33
paid in full by the time it was signed. He denied any fraud or pretence
that the cession was a loan agreement. When Sejabodile launched his
case in September 2002, he had still not returned to Rebakwena. He,
Mesotlho, was occupying six of the thirteen camps, while Ramosu
occupied the other seven – Sejabodile’s half of the farm.
60. As for the agreement to sell Ramosu’s dwelling house, this Ramosu
brought to him. He wanted Mesotlho to buy as he had already bought his
farm share. They all signed on 16th January 2004. It referred back
specifically to the cession of 22nd February 2002, but he did not know by
whom it was drafted. The price was negotiated down to P70,000, but
Ramosu and his wife argued over sharing this, and the sale was
eventually abandoned. There was also a recent development whereby
Ramosu had leased one of the camps to a certain Lesego for small stock,
again without Sejabodile’s knowledge. He had also allowed his cattle into
all the camps occupied by Mesotlho. Neither Ramosu nor Sejabodile had
made any further developments at all since he purchased. So the recent
valuation put in which showed Rebakwena now to be worth P2,850,000
could not be attributed to any efforts of theirs. He (Mesotlho) had bought
improvements on both halves of the farm (known as Palamaokue and
Three-Three). Ramosu had, however, drilled and equipped another
producing borehole at Three-Three. His dwelling house was at
34
Palamaokue. It is plain that the two had shared out the farm among
themselves to the exclusion of Sejabodile.
61. It was when Ramosu put 600 head of cattle into his area that he was
forced to open two paddock fences to gain access to more grazing. Now,
he said, it was war, and the malicious injury to property charges followed
later. Mesotlho agreed that on occasions he had made loans to Ramosu
of as much as P50,000, which had been repaid. That was the nature of
their relationship. He insisted however that he had paid in full for the
farm share. Finally, he admitted, against his interests, that he had indeed
been fined at the kgotla for insulting Ramosu.
62. Mesotlho was also subjected to searching cross-examination, and he too
did not do well. He claimed that the eviction case brought by Sejabodile
against him was Ramosu’s problem, not his. He denied conspiring with
Ramosu to swindle Sejabodile out of his share of the farm. He had merely
bought Ramosu’s share, and it was up to Ramosu to sort out his problems
with Sejabodile, if he wished to remain on the farm. He conceded that
pending transfer by the Land Board, Ramosu and Sejabodile remained co-
owners of the farm in undivided shares. He admitted that his affidavit in
the earlier case was dishonest, as it was only a half-truth, concealing the
fact that he had bought Ramosu’s share of Rebakwena. This was at
35
Ramosu’s request. In effect, he lied to the court for Ramosu’s sake. This
was a serious error on his part. However, it was true that he first
occupied Rebakwena as an invitee rather than a purchaser. His lawyers,
Motumise and Moeletsi were mistaken to say otherwise in one of their
letters. Mr Sejabodile’s rights were not affected by his presence because
Sejabodile was not there at all, nor were his cattle, at first. Ramosu told
him that Sejabodile was forced to move when he (Ramosu) destroyed the
borehole from which his cattle watered. It was only in March 2009 that
Ramosu informed him that Sejabodile was back on the farm with his
cattle.
63. Questioned further, he said Ramosu’s plan was to get Sejabodile’s half on
the basis that he did not develop Rebakwena, and could not compensate
Ramosu for what he had done. He could not transfer to Mesotlho early
because his name would no longer be on the lease, and his claim would
disappear. He went along with that to help Ramosu, but later, when the
‘war’ began, he pressed for transfer. He had paid in full by cheques, cash,
and set-off, and this was never disputed, by Ramosu until they fell out.
Some cheques might have been open, which would explain their non-
appearance on Ramosu’s bank statements. Mr Sejabodile’s portion too,
he had tried unsuccessfully to purchase, making an offer through
36
intermediaries, though he had never met Sejabodile. The offer was
declined. It was of P230,000 in 2002 or 2003.
64. Regarding the house, Ramosu had promised during the first sale to sell
this to him later. His wife also signed, as they were in dispute at the time.
She had also agreed to the earlier farm sale, and her son was a witness.
As far as Ramosu was concerned there were only two people on the farm,
himself and Mesotlho. Sejabodile had deserted for ten years, and they
both believed he was not coming back.
65. Pressed further on the acknowledgement or receipt document, Mesotlho
said that it was only when the forgery allegation was made at the Serious
Crime Squad that he noticed the error in the purported date of signature.
It was signed well after 2nd May 2002, since his last cheque was in
November 2002. He showed the cheques to the police, and the case went
no further. This was in 2008. He had sent a copy of it to Ramosu as far
back as 2005, when they first fell out, as reflected in a letter of his in the
bundle.
66. Mesotlho came across as an intelligent self-made man. He also came
across as a person with little respect for the oath. In tandem with
Ramosu he deliberately misled the court in Sejabodile’s eviction case, and
37
in my judgment he was prepared to opportunistically change his evidence
whenever he found it convenient to do so. I have little doubt that he was
well aware throughout of Sejabodile’s interest in the farm, because his
relationship with Ramosu was so close that he was invited onto the farm
to graze his cattle. His contradictions as to when he first came onto
Rebakwena are of lesser importance, since both the plaintiff and the
defendant agree that this was initially as an invitee, rather than as a
purchaser. Both agree too that their financial dealings were conducted
over a long period, and were loose with no records being kept normally.
For this reason I do not place much weight on Mesotlho’s contradictions
as to when and how payment was made for his share of the farm (and his
apparent overpayment in the final analysis), or whether or not part
payment was by set-off. What is clear is that it was only when the former
friends fell out many years later and the “war” began that Ramosu first
alleged both that Mesotlho had not bought his share, and that payment
had not been fully made. Certainly no suggestion of this was raised as
late as 2004 when the House Sale Agreement was signed. That would
have been a most improbable transaction if the earlier improvements had
still not been paid for. In my view, as in the case of Ramosu, Mesotlho
was not an honest witness, and I shall consider the evidence both in the
light of proper corroboration it may have received, on the probabilities of
the case, and on the findings of fact which I shall presently make.
38
67. Turning to the supporting defence witnesses, the first of these was
Nametso Steve Ramosu. His flight from Maun and his local expenses had
been paid for by the defence, but when he took the stand it was
immediately apparent that he had made a 360° turn. As predicted by his
father (who obviously knew in advance), he totally disavowed his trial
deposition, and his sworn statements to the police as being untrue, and
extracted from him by the promise of rewards from Mesotlho, negotiated
through a certain Tom Pitso. The promised payments had increased, as
the case came nearer, from P40 – 50,000 and some cattle, to P150,000 –
200,000 in cash plus a combi and cattle as well. All he received in
advance was a sum of P3000. His evidence came as a surprise to defence
counsel and he was successfully impeached as a hostile witness. Blood, in
the end, proved thicker than water. He explained that he made the
earlier depositions after he had fallen out with his father and left
Rebakwena. Later, after a family meeting, they reconciled, and he
changed sides. It is apparent that he flew from Maun, paid for by the
defence, when he already fully intended to testify on behalf of the plaintiff
instead.
68. Nametso was a thoroughly dishonest witness. He had no regard for the
oath, and was prepared to commit perjury at will. This he saw as
“withdrawing” one statement and replacing it with another to opposite
39
effect. The earlier statements were part of the “deal” with Mesotlho.
Regarding the wrongly stapled and mixed up pages, he falsely accused
the police of manufacturing a statement in Phemelo’s name and
misleading him into signing it. He first denied making any statement in
Mogoditshane, then conceded that he had indeed done so. He made two
sworn statements to the police confirming that Mesotlho had bought his
father’s share of the farm, and two contrary sworn statements to the
Serious Crimes Squad saying there was only a loan of P116,900 and no
sale. In the latter one, dated 1/4/2008, he claimed that the police had
told him what to write in his earlier statements. In fact he had been
taken to Serious Crimes by his father (as Ramosu testified), but he denied
this in evidence, thinking it would help his father. In my judgment little
reliance can be placed upon the evidence of Nametso either for or against
either party. I note, however, the intimate family details he revealed in
his lengthy trial deposition, many of which turned out to be true, although
initially denied by Ramosu.
69. Nametso gave lengthy evidence, and was cross-examined at length both
by Mr Pilane, during the impeachment process, and by Mr Leburu for
Ramosu. It is not necessary, in view of the findings I have made to
analyze his answers in any detail, save to state that even at the Serious
Crimes Squad, when he was retracting (or attempting to retract) his
40
earlier statements, he remained dishonest (on his own version). He
withheld from them the purported role of Tom Pitso and the details of the
bribes which he claimed to have been offered. He thought this
information unnecessary, he said, because he had merely gone there to
‘cancel’ his earlier statements. He agreed that he voluntarily gave the
statements of 2nd and 5th January 2008 to the police without revealing any
influence from Mesotlho. Later he changed once more and swore that he
had revealed all the purported bribery details to the Serious Crimes police,
but they failed to include them in his statement, and he did not query
that.
70. To crown his evidence, Nametso, after claiming that just before the trial
he had changed sides twice, told the court with a straight face that his
final volte face came about because “I did not want to lie to the court. I
am not a person who lies.” No more need be said concerning this
witness.
71. The two police officers involved in the malicious injury case lodged at
Jwaneng were called to testify, and were cross-examined at great length.
The evidence of Constable Muzola and of Inspector Letsholathebe was to
like effect. Both knew the Ramosu family well, since they farmed in the
41
area, and both only met Mesotlho as a result of the complaint against
him.
72. Inspector Letsholathebe, an officer of twenty years standing, told the
court that the case was lodged by Ramosu on 21st May 2007, and the
duty officer recorded his statement. [I note that the dispute between
Ramosu and Mesotlho over damage to fencing had by that time endured
for over two years, and that Ramosu’s eviction proceedings were
registered in the High Court three days earlier on 18th May 2007. It thus
appears that Ramosu was mounting a two-pronged attack, bolstering his
civil case with a criminal charge as well]. The case was allocated to
Letsholathebe and he worked on it with Constable Muzola. After visiting
the scene he went on leave. Statements were recorded from witnesses in
September 2007, and, in the case of Nametso, who was away, in January
2008. A short statement was taken from him on 2nd January 2008, when
he was called from his grandmother’s funeral, and this was expanded
upon in a second statement taken at Mogoditshane on 5th January 2008,
to deal with Mesotlho’s earlier court affidavit, and the house sale
agreement. Copies of the statements of Phemelo and Nametso were
sought from the police by Kgafela Attorneys later in January, for use by
Mesotlho in his case, and these were supplied. The pages were wrongly
clipped together, and this caused the so-called forgery controversy later.
42
73. During his investigations statements and documents were obtained from
both Mesotlho and Ramosu, each of whom was claiming to own the farm.
These included the cession agreement, house sale agreement,
confirmation of payment, and earlier affidavits. He took the decision not
to prosecute after two of Ramosu’s sons confirmed that he had sold his
share of the farm to Mesotlho. He had already established that there was
in fact damage to the fence, which had been laid down by Mesotlho so
that cattle could graze freely between two camps. He denied that he had
been influenced or induced in any way by Mesotlho, or that Ramosu’s
sons had been told what to say in their statements. He did not take a
statement from Sejabodile as Ramosu requested him not to do so, on the
ground that he had long left the farm.
74. Constable Muzola, who was also subjected to very lengthy cross-
examination, (and accused of being suborned by Mesotlho which he
denied), gave evidence which corresponded with that of Letsholathebe in
all material respects.
75. Both policemen gave evidence confidently, consistently, and without
hesitation. I formed the impression that they were telling the truth. What
they had before them was essentially a civil dispute dressed up as a
criminal charge. I did have some doubts over the timing of Nametso’s
43
statements in relation to progress in Mesotlho’s civil case, but no credible
evidence was placed before the court that any inducement was received
by either officer in order to assist Mesotlho. All statements were faithfully
recorded and filed in the docket. None were ‘thrown away’ or invented,
as suggested by Ramosu’s dishonest sons.
76. The defence concluded its case by calling three witness to testify to the
authenticity of the Acknowledgement of Receipt of Full Payment
document, and, in the case of Attorney Collin Duncan, to describe the
drafting of the key cession document.
77. Ms Gasethata Mpebe aged 45 and a debtors controller, told the court that
she used to work for Glazing Botswana up to November 2002. She knew
Ramosu as a friend of her employer, Mesotlho, who used to pop in to the
office from time to time. Shown the receipt document, she identified her
signature as one of the witnesses. The other was a manager in another
of Mesotlho’s businesses. She recalled that on a date uncertain before
she left Glazing Botswana she was called from her office by Ramosu, who
was in the corridor, and asked to sign that document by him. She did not
note if it was already signed or dated by Ramosu. She just signed as
requested, in the presence of both Mesotlho and Ramosu, who were
44
sitting on either side of Mesotlho’s table in his office. Ms Mpebe was not
seriously challenged in cross-examination.
78. Attorney Collin Duncan, who had been in practice for some twenty years,
testified that both Ramosu and Mesotlho were his clients. It was he who
drafted the cession agreement, acting on their joint instructions. One
witness was Ramosu’s son, who was fluent in English and Setswana, who
was there to explain, as Duncan’s Setswana was not strong, and nor was
Ramosu’s English. He signed himself as the second witness. Both
Mesotlho and Ramosu signed in his presence and in the presence of the
other witness. In the agreement Ramosu was selling his portion of the
farm to Mesotlho. It was his son who interpreted all the clauses to his
father, and he confirmed that they were all in accordance with Ramosu’s
instructions. There was no doubt that Ramosu fully understood all
aspects of the agreement. All present initialed each page as well. In his
view the Land Board’s consent was necessary before the transfer of rights
could be formalized, and he urged them to attend to this as soon as
possible. Later he became concerned when they did not go to the Land
Board, and he withdrew from representing them.
79. As to the Acknowledgement of Receipt document, he prepared this later
at the request of Mesotlho, when he was no longer a client. It related to
45
the cession agreement, which had been signed several months earlier. He
was not sure as to whether full payment had already been made or
whether it was imminent, and thereafter the document would be signed.
After he drafted it the document was faxed to Mesotlho’s office. He could
not be sure of the date, because at the time his fax machine (which was
second hand) could not be decoded, and was recording random dates of
dispatch. The facsimile date 18/7/2002 on the document was incorrect.
80. It was he who in September 2002 drafted the affidavits of Ramosu and
Mesotlho in the initial case, both of which failed to mention the cession
agreement. This he explained as follows:
His relationship with his two client extended over four phases. The first
was when Ramosu, out of friendship, allowed Mesotlho to graze his cattle
on Ramosu’s portion of the Farm G5, in terms of an agreement with
Sejabodile that either party could accommodate the stock of friends and
relatives on his portion.
The second phase was the sale by Ramosu to Mesotlho of his portion in
terms of the cession agreement. He was insisting that they approach the
Land Board so that Sejabodile would be involved, but they were reluctant
to do so.
46
The third phase was when they returned six or seven months later. They
had still not gone to the Land Board, and he was under the impression
that the agreement had thus fallen away. It was the pair of them who
gave him this impression. Ramosu had resisted going to the Land Board,
and he was unaware of the parties making payments behind his back.
That is when he drafted the trial affidavits, on their instructions and in
good faith.
The fourth phase was when he later met Mesotlho, who admitted that he
had been making payments and developing the farm, and that the
agreement was still in place. He was then uncomfortable at having
unwittingly misled the court, and he withdrew his services.
81. Questioned on the cession agreement, he said he was told that Sejabodile
long deserted the farm and Ramosu had done all the developments. He
was confident that Sejabodile would be called to the Land Board to
formalize the transfer, and that it was thus unnecessary to include him in
the agreement. The TGLP Lease was, however, annexed, which made his
participation clear. There was no question of Ramosu believing the
agreement referred to a loan and not to a sale of rights. Ramosu much
later claimed not to have been paid in terms of the agreement, although
47
there had been some payment in the form of improvements. They used
to communicate in English, and he never had any doubt that Ramosu
understood him.
82. Collin Duncan was also not seriously shaken in cross-examination and
since both antagonists were his clients, he had no axe to grind. He made
a favourable impression and subject to understandable lapses of memory,
I believe his evidence.
83. The final defence witness was Mr Cecil Greenfield, an expert who testified
to the authenticity of Ramosu’s signature on the acknowledgement of Full
Receipt Document. There was also on record a conflicting opinion from
another expert, a Mr James Cresswell, but he was not called, and both
counsel agreed that no weight could be given to his report.
84. Greenfield confirmed an impressive resume in his field. He attested to his
membership of the American Association of Handwriting Analysts, the
World Association of Document Examiners, the British Institute of
Graphologists, the Forensic Science Society of the U.K, the International
Association for Identification (USA), and the South African Association of
Forensic Document Examiners. He is the author of several articles on his
subject and has participated in some 2000 forensic handwriting
48
investigations since 1983, including giving expert testimony before the
courts of many countries. Mr Leburu, for the plaintiff tried valiantly to
challenge his expert status on the basis of one particular case where the
opinion of a competing expert was preferred over those of the witness
and another colleague. In Greenfield’s view there was a miscarriage of
justice in that case. In very many others his expert opinion was fully
accepted.
85. I am satisfied from his evidence that Cecil Greenfield fully qualifies as an
accomplished expert in his field and that he had at his disposal the most
modern equipment for use in his investigations. He conducted a careful
comparison of the disputed signature of Ramosu on the document entitled
“CONFIRMATION OF RECEIPT OF FULL AND FINAL PAYMENT” with those
on twelve documents containing acknowledged signatures of Ramosu
dated both before and after the disputed signature. These included the
cession agreement dated 22nd February 2002 and the House Sale
Agreement dated 16th January 2004.
86. Despite obvious dissimilarities, which he attributed to natural variation,
Greenfield noted seventeen corresponding features to be present on both
the disputed signature and the standards. Line quality and pressure
pattern were consistent, as was the proportional height of the letters.
49
Line direction, slope and alignment was also consistent and there was no
indication of inappropriate hesitation, pen-lifts or tracing residues. The
disputed writing was an original signature using a single ink. He
concluded that the disputed signature was in all probability authentic. He
found the disputed signature to be fluent, spontaneous, and exhibiting the
same writing skills as shown in the standards. He found nothing at all to
undermine his final opinion that the signature was almost certainly
genuine. This is a very strong opinion.
87. Greenfield was vigorously cross-examined, but was not, in my judgment
shaken either as to his expertise or as to the conclusion he reached. He
had no prior knowledge of the background to the investigation and no
preconceptions. I accept his expert opinion as being of assistance to the
court, and as being in line with the strong circumstantial evidence of
Mpebe and Mesotlho that it was Ramosu himself who signed the
acknowledgement. In appearance to the court too, the disputed signature
appeared fully consistent with Ramosu’s normal signature. Since it
referred directly to the P330,000 purchase price of the farm share, I have
no doubt that that was the sum of which he was acknowledging receipt,
no matter in what sums, and when, the payments were made, or whether
some of these were effected by set-off.
50
88. After fully considering the evidence led, the documents filed, and the
credibility of the witnesses, I find the following facts to have been proved
on a balance of probabilities:
(1) In terms of the TGLP Lease Mesotlho and Sejabodile in 1982 became the co-owners in undivided shares of the long-leasehold
rights to the farm Rebakwena, which is situated on tribal land.
(2) The two co-operated in re-fencing the farm, cutting it into seven paddocks, and drilling the initial borehole (plus some blanks).
(3) Each conducted his own ranching operations (though with some degree of co-operation), running his own herd for his individual profit, and constructing his own home and kraals.
(4) In or about 1992 Sejabodile left the farm, effectively driven out by
Ramosu, with his main herd of cattle (although some stragglers may have remained), and did not return with his cattle, then numbering about 100, until 2008 or 2009.
(5) In early 2002 Ramosu allowed Mesotlho, his long time friend, to
graze his substantial herd of cattle on Rebakwena, as these were being scattered under cattlepost conditions.
[Evidence of Ramosu and Mesotlho, corroborated by Collin Duncan].
(6) In February 2002 Ramosu’s property was to be sold in execution,
and he sought the assistance of Mesotlho. He needed P116,900 urgently to pay Metsi Drilling (Pty) Ltd.
(7) On 22nd February 2002, after negotiating, and obtaining legal assistance, Ramosu and Mesotlho signed the cession agreement in terms of which Ramosu knowingly sold to Mesotlho all his rights in
the farm Rebakwena, including his rights to a list of improvements which he claimed to have made alone to the farm, for a price of P330,000. [Evidence of Mesotlho, corroborated by Duncan, and documents, and by subsequent conduct of both Ramosu and Mesotlho, such as replacing reservoirs].
51
(8) At the time both parties believed that Sejabodile had abandoned his share of the farm for good, and that Ramosu would, because he had effected developments, be able to retain his cattle there permanently utilizing Sejabodile’s half share.
[Evidence of Mesotlho, confirmed by the actions of Ramosu and his statements in his court affidavit, and to Duncan; Ramosu’s new answer in cross-examination “We agreed in 2002 on three years. He could stay longer if we cooperated and Sejabodile did not return;” Nametso’s remark in his deposition “My father showed us the part of the farm which Mr Mesotlho would occupy. He told us that we as a family would move over to occupy the portion of the farm belonging to Mr Sejabodile. We did in fact move out to Mr Sejabodile’s portion of the farm to give way for Mr Mesotlho.” That this did happen was confirmed by the evidence].
(9) After verbally agreeing an extension of time Mesotlho paid the full
purchase price of P330,000. [The explanation that this was needed since the bank could not
make a loan without transfer, which Ramosu was reluctant to facilitate too soon, is credible. The cession agreement contained no clause requiring amendments to be in writing. The domicilium/Notices clause is inapplicable. The acknowledgement of receipt of full payment is clear in its terms and is evidence of payment. It is corroborated by the evidence of Mpebe, and supported by the evidence of Greenfield, that of Duncan, and the letter of Moeletsi and Motumise detailing payment. It was also prepared and signed in 2002 before the parties were at odds].
(10) Ramosu’s plans were thwarted, first by Sejabodile asserting his
rights in 2002 when he instituted eviction proceedings against Mesotlho, and more recently in 2008/2009 when Sejabodile
returned his cattle to the farm. (11) Ramosu breached the cession agreement first by delaying his
facilitation of the endorsement of the cession by the Land Board, and later, after he fell out with Mesotlho, by refusing to do so.
(12) After falling out with Mesotlho in or about 2005, Ramosu attempted
dishonestly to deny and repudiate the cession agreement, claiming to have been misled, as he had only been loaned P116,900 by Mesotlho.
52
(13) Ramosu attempted to drive Mesotlho out by cutting off his water supply and flooding his portion with livestock. When this failed he followed up by instituting civil proceedings for eviction and by laying a belated criminal charge against Mesotlho. He now reconciled with Sejabodile, who had only a few cattle, and they
made common cause against Mesotlho. (14) Ramosu and Mesotlho for all practical purposes shared the farm
and acted as co-owners until Sejabodile returned with his cattle in 2008/2009.
(15) Sejabodile at all times remained in law the undisputed owner of an
undivided half share of the long leasehold rights over Rebakwena
Farm. Following his passing, the undisputed rightful owner of those rights is his Estate.
[Clause 10 of the TGLP Lease provides that in event of the death of
the Grantee the lease shall not terminate unless no application is made by his heir or successor to be substituted as Grantee within a year from his death. There are other requirements, which are not relevant for the purposes of this judgment].
(16) There is no allegation that Ramosu has any right or claim to any
part of Sejabodile’s undivided half share of the farm, by agreement or otherwise.
(17) Ramosu presently has about 400 head of cattle on the farm, and
has allowed another person to occupy a camp for small stock,
which livestock interferes with the rights of Mesotlho in terms of the cession agreement.
THE RELATIONSHIP BETWEEN RAMOSU AND SEJABODILE, AS AT 2002
89. In the pleadings Ramosu contended, though in a somewhat confused
fashion, that Ramosu and Sejabodile owned and farmed Rebakwena as a
partnership. A partnership under the common law is generally defined as
a contract between persons in which the persons concerned agree to
contribute money, labour and skill to a common stock to carry on business
53
with the object of making profit for their joint benefit. See JOUBERT vs
TARRY & CO. 1916 TPD 277; RHODESIA RAILWAYS vs
COMMISSIONER OF TAXES 1925 AD 438. Mesotlho argued that they
enjoyed co-ownership per se of the leasehold rights to the land, but
farmed individually, each for his own profit, despite some practical
cooperation. Their respective positions became mixed up in argument,
with Mesotlho arguing in the alternative that a partnership of sorts was in
operation and that a partner could alienate certain partnership assets in
his capacity as an agent for the partnership.
90. The distinction between the two positions is important because the main
difference between a partnership and co-ownership per se is generally
recognized as being that a co-owner per se is entitled to dispose of his
share without reference to the other co-owner or co-owners, whereas a
partner cannot do so without the consent of his partner or partners, who
can interdict or invalidate such a transaction. So, in SILBERBERG AND
SCHOEMAN’s THE LAW OF PROPERTY (4th Ed.) it is said at page 129:
“Every co-owner has the right freely and without reference to other co-owners to alienate his or her share …” … “It is the right of
alienation which is probably the most important characteristic which distinguishes a co-ownership per se from all other forms of co-ownership such as partnerships and associations.”
See also EX PARTE MENZIES ET UXOR 1993 (3) SA 799 at 812.
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91. In the leading case of OBLOWITZ vs OBLOWITZ 1953 (4) SA 426
CPD De Villiers J.P. examined in detail the characteristics of co-ownership
and partnership, and concluded that:
“Speaking generally, and excluding all exceptional cases, the principal differences between co-ownership and partnership, inter alia, may be stated as follows:
1. Co-ownership is not necessarily the result of agreement, whereas partnership is.
2. Co-ownership does not necessarily involve community of profit and loss, while partnership does.
3. One co-owner can, without the consent of the others
alienate his interest in the property jointly owned, whereas a partner cannot.
4. One co-owner is not, as such, the agent of the others,
whereas a partner is.
5. Co-ownership need not exist for the sake of gain or profit, whereas that element is fundamental to the legal conception of a partnership.”
See also LINDLEY ON PARTNERSHIP 11th Ed. p34.
92. There is no suggestion that this is in any way an exceptional case, so I
shall examine the relationship between Ramosu and Sejabodile, having
regard to those principles.
93. First, as I have said, both Ramosu and Sejabodile sued as individuals, and
not as a partnership. No allegation has been made of any formal
55
partnership agreement between them. Although mention was made of
their styling their farming venture “Success Syndicate,” it is common
cause that that name does not appear in the TGLP Lease, nor was there
any constitution or other founding document for such a body. Success
Syndicate (if it ever existed in any form) was also not made a party to
these proceedings. It is conceded that no legal personality of any
syndicate of that nature has been shown.
94. That the TGLP Lease conferred on Ramosu and Sejabodile co-ownership
of the long leasehold rights to Rebakwena Farm in equal and undivided
shares cannot be doubted. They were jointly described as ‘the grantee,’
and it is upon the grantee that the rights were conferred. Obligations
were also imposed upon the grantee, and it was no doubt to share the
financial burden of those obligations, namely to demarcate and make
basic developments on the farm, and to enjoy the commercial benefits of
having a farm, that they came together in the first place, and why
Ramosu described the hiring of the property as a joint venture with
Sejabodile in the preamble to the cession agreement. In that preamble
he also stated that each of them was entitled to dispose of their separate
50% share of the rights and interests in the lease. In Clause 3 he
undertook to facilitate all necessary documents for formal registration of
his rights in the name of Mesotlho, and warranted that Mesotlho would
56
have undisturbed use and peaceful enjoyment of his acquired rights.
These included the use of the listed assets, including eight paddocks on
the farm.
95. Despite Ramosu’s and Sejabodile’s initial untruthfulness on this aspect
(each claiming to have developed alone), I am satisfied that both
contributed to the initial developments by raising a joint loan from the
NDB, and repaying this. To that extent it could be argued that they
entered into an informal agreement (or even partnership) for that limited
purpose, and that those early developments were shared for their farming
operations. What is equally clear is that in terms of their cattle rearing
operations each operated alone and for his own profit, even if they
cooperated, as farmers do, by sharing certain camps and water points.
Each built his own kraals and dwelling places, ad their main herds were
kept separate. There was no written partnership agreement, and no full
partnership for the sharing of profit and loss. Their cattle were never
pooled as partnership assets. To the extent that their joint venture may
have constituted initially an informal limited partnership for the
development and use of Rebakwena Farm, that partnership was, in my
judgment, dissolved when Sejabodile left the farm with his cattle, and
stayed away, whether he was forced to do so, or whether he went
willingly. A partnership verbally and informally constituted can equally be
57
informally dissolved, including by conduct evidencing repudiation thereof
by one of the partners, and acceptance of that repudiation by the other.
What remained was the bare bones of co-ownership of the farm per se,
including its immovable developments, subject to any claims inter se for
enrichment arising out of imbalances in expenditure on these. The true
nature of the rights sold by Ramosu was that these comprised his half of
the rights to the lease, and his half of the developments (including those
listed) together with any claims he might have had against Sejabodile
arising from imbalances in expenditure.
96. I hold that as the co-owner of an undivided share of the leasehold rights
to the farm Rebakwena, Ramosu was entitled in law to alienate and sell
his rights without reference to Sejabodile, and notwithstanding
Sejabodile’s objection or potential objection thereto, subject to any
contractual or statutory obstacles to such sale, or cession in this case, as
rights were involved.
97. That situation, and that relationship between them prevailed as at the
time of launching the present proceedings, in May 2007. At some time
thereafter, either in 2008 or 2009, it appears that Sejabodile and Ramosu
were reconciled, and Sejabodile returned to the farm with his cattle,
sharing a new borehole and other facilities with Ramosu. It may or may
58
not be that a new informal partnership for a limited purpose was
attempted then between the two (although I note that Sejabodile did not
contribute diesel for pumping water). In such an event that partnership
could only have related to Sejabodile’s half share, since Ramosu had sold
his own rights. Whether or not this was so is irrelevant for the purposes
of the present case. No amendment to the pleadings was sought, no such
arrangement was pleaded by Sejabodile, and Sejabodile passed away
before the case was concluded. His passing would in any case have had
the effect of dissolving any new partnership (or even an old one). What is
not in dispute is that his Estate remains the co-owner of an undivided half
share of the leasehold rights in the farm.
98. Should difficulties arise in the future, so that the co-owners (namely
Mesotlho after completion of any outstanding formalities, and Ramosu’s
Estate) cannot co-exist peacefully, because of difficulties in apportioning
or sharing improvements, or otherwise, that will be something to be
sorted out between the relevant parties in due course. I note that where
co-owners per se cannot co-exist or cannot agree on the manner in which
the property is to be divided among them, the court is empowered on
equitable principles on the application of either to make an appropriate
order or even to order the sale of the co-owned property, with the
proceeds to be divided between the co-owners. See: RADEMEYER vs
59
RADEMEYER 1968 (3) SA; BADENHORST vs MARKS 1911 TDP
144; SILBERBERG & SCHOEMAN LAW OF PROPERTY (SUPRA) at
p129.
99. In both the quoted cases, this situation had arisen in relation to co-owned
agricultural land. It is not, however, something that need concern this
court, since Sejabodile’s Estate or heirs are not before the court, and no
such controversy has arisen.
CONTRACTUAL OR STATUTORY RESTRAINTS
100. Ramosu raises a number of points whereby he asserts that the cession
agreement is unlawful, either in terms of the TGLP Lease or under the
Tribal Land Act Cap 32:02. His initial problem is that the cession
agreement created personal rights as between him and Mesotlho. To the
extent that the agreement may be voidable (but not void per se) for
statutory or contractual reasons, he is precluded from avoiding it himself
on such grounds because he was the instigator, or at the very least an
enthusiastic party to and beneficiary of that agreement. Sejabodile, who
might conceivably have argued for such avoidance is no longer a party to
the proceedings.
60
101. Ramosu’s second difficulty is that in terms of the agreement it is he who
was obliged to facilitate the completion of any formalities required in law
to have the name of Mesotlho substituted for his in the TGLP Lease. This
he has failed to do, and he cannot rely on this own default to avoid the
agreement for lack of statutory or Land Board compliance. See:
THANOLDA ESTATES (PTY) LTD vs BOULEIGH 145 (PTY) LTD
2001 (3) SA 196 at 204.
102. In that case, as in this one, a contract obliged one of the parties to take
the necessary steps to comply with statutory formalities (there to make
application for a subdivision). The party so obliged failed to do so, and
the other party sued for an order that he perform according to the
contract. The court held that the doctrine of fictional fulfillment of a
condition upon which performance by the defendant depends is an
equitable one, based on the rule that a party cannot take advantage of his
own default to the loss or injury of another. (See also SCOTT &
ANOTHER vs POUPARD & ANOTHER 1971 (2) SA 373 (AD)).
Accordingly an order was made directing the defendant to take immediate
steps to apply for the subdivision.
61
103. The applicable clauses in the cession agreement were:
“3. The cession herein shall be subject to the terms and conditions of the laws of Botswana and such terms as contained (sic) in the Agreement of Grant of the Tribal Land
Grazing Policy Lease” and
4. “Elias M. Ramosu undertakes to sign all the necessary
documents to facilitate the formal registration and safeguard all of the rights, title and interests acquired by Cuzen
Mesotlho.”
104. It is not disputed that to safeguard his rights it was necessary for the
name of Mesotlho to be substituted for that of Ramosu in the TGLP Lease,
and that this required a request or application to be made or supported by
Ramosu for it to be achieved. Whether it was a discretionary act or a
formality as far as the Land Board was concerned, I deal with below, but
the clause deals with the doubts expressed by the draftsman, Attorney
Duncan, as to whether Land Board consent was required for the
transaction. So far from facilitating the formal registration, Ramosu
actively tried to prevent it, as I have found, and also brought the present
proceedings, which constitute a formal attempt to repudiate and disown
the cession agreement. On a proper reading of Clauses 3 and 4 these
created conditions precedent (namely the fulfillment of all statutory and
contractual requirements for the transaction) to its formal conclusion, but
did not forestall the exercise of Mesotlho’s rights as between him and
Ramosu personally.
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105. I now turn to the grounds upon which Ramosu alleges that the cession
agreement is a nullity. This will be so if it was concluded in contravention
of a mandatory sine qua non provision of the law.
106. The first (and main) section of the Tribal Land Act upon which Ramosu
relies is erroneously referred to as section 26 (1). In fact, since the
passage of Act 14/1993, the applicable and equivalent section is section
38. Section 26 no longer exists. Section 38 provides that:
“(1) The rights conferred upon any person in respect of any grant or lease of any tribal land, whether made under or in accordance with Part III or Part IV, or made prior to the coming into operation of this Act, shall not be transferred, whether by sale or otherwise, to any other person without the consent of the Land Board concerned:
Provided that the provisions of this subsection shall not apply in the case of:-
(i) land which has been developed to the
satisfaction of the Land Board concerned;
(ii) a sale in execution to a citizen of Botswana; (iii) a hypothecation by a citizen of Botswana; or
(iv) the devoluation of such land on inheritance.
(2) The Registrar of Deeds shall not register any conveyance of
tribal land or rights to such land unless supported by a certificate issued by the appropriate Land Board or by written lease, and, where relevant, he is satisfied that one of the conditions set out in the proviso to subsection (1) applies.
63
(3) For the avoidance of doubt, it is hereby declared that the provisions of section 17 of the Deeds Registry Act shall have effect in relation to the transfer of real rights in land, under the provisions of this section as it has in relation to the transfer of any other real rights in land.” (my emphasis)
107. The TGLP Lease was granted in terms of Section 24 of the Act. This in
turn provides (in so far as it is here relevant) that:
“(1) Subject to the provisions of this section a land board may grant to any person land, by way of lease on terms and
conditions other than those imposed by or under Section 23, but may only grant land in ownership to the State.
(2) …. (3) …. (4) ….
(5) A grant under this section shall be registered by the grantee within six months of his being called upon to do so by the Land Board; should the grantee fail to so register, the grant shall terminate on the expiry of the six months notice.
Provided that nothing in this section shall prohibit the
grantee registering the grant at any time prior to such notice being given.”
108. The effect of this section is that registration in the Deeds Registry of a
TGLP Lease is at the discretion of the grantee unless the Land Board gives
six months notice requiring this, in which event it must be done, on pain
of termination. It is common cause that the TGLP Lease was not
registered, and there is no suggestion by the Land Board that any notice
was given. In my judgment the same requirement would apply by
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necessary implication to a subsequent transfer of rights in an unregistered
tribal lease or grant. For such to be registered, the initial lease or grant
would need to be registered first. It is common knowledge, and I take
judicial notice of the fact, that many common law tribal grants and leases
are held without registration in Botswana, registration normally being
sought for the purpose of registering mortgage bonds in order to secure
bank finance. I hold that the lack of registration of the TGLP Lease and of
the subsequent cession of rights has no effect on the lawfulness of these
instruments.
109. In so far as section 38 is concerned, except in the listed exceptional cases,
rights in tribal land are not to be transferred without the consent of the
Land Board. As I have said, the TGLP Lease, signed by the Land Board
and endorsed by the Minister, specifically permits the cession of rights
thereunder by the grantee, in Clause 9 (a), without any further written
consent being required (as it is for subleases). This satisfies the general
requirement of section 38. There is no suggestion by the Land Board or
anyone else that this was a drafting error. In fact many grants or leases
are made to syndicates with a number of members, whose membership
changes, often by cession, from time to time. This does not concern the
Land Board, save for record keeping purposes. There is also evidence
that the farm Rebakwena is fully developed, and the Land Board has not
65
suggested that such developments are not to its satisfaction, so the rights
under the TGLP Lease are also freely transferable, without Land Board
consent (insofar as the Tribal land Act is concerned), in terms of proviso
(i) to section 24(1) of the Act. That consent may be given as a term of
the lease is also demonstrated by section 24(2) which allows the Registrar
of Deeds to be informed by production of a lease rather than a certificate
from the Land Board.
110. I hold that necessary legal formalities for the validity of the cession both
by contract and under sections 24 and 38 of the Act were duly satisfied
and there is no illegality in that regard.
111. Ramosu’s next point is that by section 27 (1) of the Act:
“Where the grantee of any land under the provisions of this part desires to change the user of any land ….. he may make
application in writing to the Land Board.”
112. He suggests that the “user” has changed, or purports to have been
changed, by the cession from Ramosu to Mesotlho, and that that renders
the agreement void ab initio. The argument is ill-conceived. Even
assuming that the word “may” in the section is to be read as “must,”
which the argument implies, it is clear that the word “user” is used in its
customary meaning in land law, namely, the use to which the land is put
(see, for example, MOUNT MORELAND TOWN LANDS LTD vs GUY
66
1942 NDP 407), and not to the person holding the rights. The “user” in
the TGLP Lease is set out in Clauses 2 and 3. It is to be used for farming
purposes, with not more than 1% being used for arable farming.
113. Finally, and somewhat opportunistically, Ramosu sought to invalidate the
cession (in his pleadings) on the ground that his wife, to whom he was
married in community of property, had not consented to the transaction.
In his evidence he made no mention of that aspect at all, and nor did his
witnesses. His wife was not called, at whose instance that complaint
should, if valid, have been made in any event. Finally, Mesotlho testified
that Ramosu’s wife had in fact consented to the cession, and her son had
signed as a witness. He was not challenged on that. The point is without
merit.
114. In sum, there were, in my judgment, no legal or contractual obstacles to
the validity of the cession agreement. All that remains is for Ramosu to
notify the Land Board of the cession, and to request it, as a formality, to
substitute Mesotlho’s name for his own on the TGLP Lease.
115. In view of the findings I have made it is unnecessary to advert to
Mesotlho’s alternative claim for restitutionary damages, as his principal
claim in reconvention must succeed. He has also indicated that he does
67
not pursue his initial claim for P45,000 in damages for breach of contract
either.
116. It follows also that Ramosu’s action must fail.
I make the following order:
(1) The second plaintiff’s action is dismissed.
(2) The first defendant’s counterclaim succeeds.
(3) It is declared that the first defendant is the owner of an undivided
half share of the rights in the lease of the Farm G5 (Rebakwena),
the other half share being the property of the estate of the late
GAREBANTSI SEJABODILE.
(4) The second plaintiff is ordered to make a formal written notification
to the Land Board of the cession, and to request that the name of
Cuzen Mesotlho be substituted on the Agreement of Grant of the
Tribal Grazing Land Policy Lease of the Farm G5 dated 26th
February 1982, failing which the Deputy Sheriff is authorized to
make such notification and request on his behalf in terms of this
order.
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(5) The second plaintiff is to vacate the said farm, together with his
livestock, and the livestock of any third parties there at his
instance, within sixty days of the making of this order, without
prejudice to any unjust enrichment claim he may have against the
estate of the late Sejabodile or against the first defendant, or both,
in respect of the dwelling house or other uncompensated
improvements made by him alone thereon.
(6) The second plaintiff is to pay the costs of the first defendant arising
from the action and from the counterclaim, as taxed or agreed.
DELIVERED IN OPEN COURT AT LOBATSE THIS 10TH DAY OF SEPTEMBER 2010.
__________________ I.S. KIRBY [JUDGE]
Nnoi Chilume Attorneys for the 1st Plaintiff Monthe Marumo & Co. for the 2nd Plaintiff
Duma Boko & Co. for the 1st Defendant