January 28, 2011

Victory for Kalahari San as court grants right to water

Botswana's Court of Appeal upheld an appeal by the San people of Central Kalahari Game Reserve (CKGR) and ordered that they should be allowed to re-commission a borehole in the Reserve and sink boreholes if they wish to do so. The San had appealed a decision by the Lobatse High Court that they are not entitled to sink a borehole in their ancestral land. In 2002 the San challenged the legality of their relocation from CKGR by the Government and won.

The court of appeal found that it remains to be said that the appellants litigated on their own behalf and for the members of their community. “In the light of the foregoing considerations, the appeal must be upheld. The appeal is allowed. It is declared that the applicants have the right at their own expenses. To re-commission the borehole at Mothemelo in the Central Kalahari Game Reserve, formerly used to provide water to the former residents in the reserve and to sink one or more such boreholes at such site in the reserve as the surveyor or engineer they may wish to employ to advise them on the sinking of such boreholes,' reads the judgment which was delivered by a panel of five judges.

The court of appeal also ordered that the San be allowed to service or repair or maintain in good working order any borehole to which this declaration applies and to use water abstracted from such borehole for domestic purposes.

'By themselves or their agents the applicants should be allowed to bring into the reserve and to the extent necessary, to enable any borehole to which this declaration applies. They may bring in the reserve any rig, machinery, plant or any other equipment they may reasonably require to sink boreholes or re-commission the borehole at Mothemelo,' reads the judgment.

The court also ordered that the San may also bring in any water tank they may reasonably require to store water abstracted from borehole to which the declaration by the court applies, prior to its domestic use.

'The applicants should be allowed to obtain such advice or assistance from persons resident outside the reserve as they may reasonably require to carry out the order of the Court and transport materials in the reserve.'

The court also ordered that unless it has any reasonable grounds to believe that a person for a purpose of re-commissioning or sinking a borehole is not competent or of bad repute on payment or requisite fee the Department of Wildlife shall issue an entry permit to him on terms that enable him to complete his task within a reasonable period. The government was ordered to pay costs of two counsels. (The Southern Times)

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