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

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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

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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

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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.

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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].

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(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.

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(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

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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

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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

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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

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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

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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

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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.

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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.

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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.

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(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

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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