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High Court of Botswana (Dibotelo, Dow and Phumaphi JJ)
13 December 2006
Constitutional Law – right to life – right to freedom of movement – right to property.
Administrative Law – legitimate expectations – obligation to consult – whether decision of Department of Wildlife and National Parks was ultra vires or breach of statutory duty – opportunity to be heard.
The Central Kgalagadi Game Reserve (‘CKGR’) is an area of approximately 52 000 square kilometres located in Botswana. The CKGR was created to enable two Indigenous groups- the Basarwa and the Bakgalagadi (‘Bushmen’) - to maintain their traditional ways of life upon their ancestral lands. The CKRD is comprised of approximately six different settlements and has typically has a population of less than 1 000 inhabitants.
The applicants are 215 individuals who were either born in the CKGR or had sufficient ties, by blood or marriage, to claim residence in the CKGR. The applicants live as hunter-gatherers but have for more than 20 years augmented their diet with services provided by the Government (‘respondent’). These services primarily involved a range of weekly water deliveries, but also included the provision of rations to registered destitutes and orphans, provision of transport for children to and from school, and provision of healthcare through a mobile clinic and an ambulance service.
From 1997 the respondent began to implement a scheme to encourage residents to relocate from inside the CKGR to neighbouring settlements outside the Reserve. In April 2001 the respondent announced that in six months it would be terminating the provision of all services to the CKGR. In tandem with this announcement, the Director of the Department of Wildlife and National Parks (‘DWNP’) announced that he would be withdrawing all special game licences from CKGR residents, and would refuse to issue such licences in future.
On 19 February 2002 the applicants filed an application seeking a declaration that the termination of services was unlawful and unconstitutional, and an order compelling the respondent to restore them. The applicants further sought declarations as to the unlawfulness and unconstitutionality of the decisions of the Director of DWNP. On 19 April 2002 the application was dismissed on a number of procedural points. The applicants subsequently appealed to the Court of Appeal which referred the matter to the High Court on 23 January 2003. The High Court began hearing the matter on 28 May 2004.
1. The termination with effect from 31 January 2002 by the respondent of the provision of basic and essential services to the applicants in the CKGR was neither unlawful nor unconstitutional (Dow J dissenting).
2. The respondent is not obliged to restore the provision of such services to the applicants in the CKGR (Dow J dissenting).
3. Subsequent to 31 January 2002 the applicants were:
(a) in possession of the land which they lawfully occupied in their settlements in the CKGR (unanimous); and
(b) deprived of such possession by the respondent forcibly or wrongly and without their consent (Dibotelo J dissenting).
4. The respondent’s refusal to issue special game licences to the applicants is:
(a) unlawful (unanimous);
(b) unconstitutional (Dibotelo J dissenting).
5. The respondent’s refusal to allow the applicants to enter the CKGR unless they are issued with a permit is both unlawful and unconstitutional (Dibotelo J dissenting).
1. The applicants had a legitimate expectation that the respondent would consult them before the decision to terminate the provision of services in their settlements in the CKGR was made: [28]. However, the evidence shows that adequate consultation occurred: [29]-[33]. The termination of services was therefore not unlawful: [33].
2. As the termination of services to the applicants was not unlawful, the respondent was not obliged to restore them [34].
3. The parties agreed that the CKGR is State-owned land: [37] and the respondent admitted that the applicants were in lawful possession of that land: [38].
4. There is no evidence that the applicants were forcibly or wrongly deprived of possession of the land they occupied in their settlements in the CKGR: [44]-[45].
5. The decision by the Director of DWNP to refuse to issue special game licences to the applicants was invalid because the applicants were not given an opportunity to be heard: [51].
6. The constitutionality of the actions of the Director of DWNP does not arise because Regulation 45(1) of the Wildlife Conservation and National Parks Regulations 2000 (Botswana) specifically confers a broad discretion on the Director to refuse to issue special game licences to the applicants: [51].
7. The refusal by the Director of DWNP to issue special game licences to residents of the CKGR was lawful and constitutional because compensation was paid to those residents: [53].
1. Section 14(3) of the Botswanan Constitution expressly provides for the protection and well being of Bushmen in defined areas. As the CKGR is a defined area, the residence by the Bushmen in the Reserve must have been lawful at the time of the adoption of the Constitution of Botswana. This has not been changed by any other policy or law: [H.6].
2. The applicants had a right to have communicated to them a clear and unambiguous policy on their continued residence within the CKGR and further, they had a right to be consulted on any variation of the policy that had the foreseeable consequence of adversely affecting their enjoyment of such residence: [J(i)]; [H.9.1]. As the respondent operated under a ‘confusing and unclear policy’, the applicants were deprived of possession wrongfully and unlawfully and without their consent: [H.9.1].
3. The services provided by the respondent, which included the provision of water and food to destitutes and orphans, are essential to the recipients’ survival. The termination of those services was a breach of the constitutional right to life: [H.12].
4. An order for restoration of services is in effect an order for specific performance which is an extraordinary remedy that is only available where no other possible remedy will offer relief. The respondent is therefore obliged to restore basic and essential services only to those residents who have remained in the Reserve and is obliged to pay damages in lieu thereof to those residents who have relocated: [H.16].
5. There is no question that the applicants satisfied the statutory requirements for special game licences. The refusal by the Director of DWNP to issue those licences to the applicants was ultra vires or at the very least constituted a breach of statutory duty: [H.18].
6. The DWNP has no power to withdraw already issued licences and any such withdrawal would deprive the applicants’ of their constitutional right to property without an opportunity to be heard: [H.18].
7. The respondent’s policy of refusing to allow the applicants to enter the CKGR unless they were issued with a permit amounted to an unlawful curtailment of the applicants’ constitutional right to freedom of movement: [H.21].
1. The applicants were kept informed at all material times and did not have a legitimate expectation that the services would continue. No promise had been made by the respondent nor had it engaged in a practice that would have given rise to a legitimate expectation on their part: [39], following Mothusi v Attorney General [1994] BLR 246 applied. The termination of services was therefore not unlawful: [49].
2. As the termination of services to the applicants was not unlawful, the respondent is not obliged to restore them: [57].
3. The Bushmen have always possessed native title to the CKGR and that title has hitherto not been extinguished. The applicants were thus in lawful occupation of their settlements: [92], Mabo v Queensland (No 2) (1992) 175 CLR 1 applied.
4. The refusal by the Director of DWNP to issue special game licences to residents of the CKGR involved a refusal to exercise his statutory discretion and was hence unlawful for the reason that it was ultra vires the empowering legislation: [135].
5. The refusal by the Director of DWNP to issue special game licences to residents of the CKGR violated the constitutional right to life as, when coupled with the termination of services to settlements in the CKGR, it was tantamount to condemning the remaining residents to death by starvation: [137]-[138].
7. The respondent’s policy of refusing to allow the applicants to enter the CKGR unless they were issued with a permit amounted to an unlawful curtailment of the applicants’ constitutional right to freedom of movement: [168].
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRw/2007/16.html