Government is facing fresh questions over the controversial burial of the late Pitseng Gaoberekwe with Parliament now demanding answers on whether the Executive overstepped its constitutional boundaries by allowing an outcome that appeared to depart from previous court decisions concerning burial within the Central Kalahari Game Reserve (CKGR).
Kgatleng East MP Mabuse Pule has put the Minister of Justice and Correctional Services Nelson Ramaotwana on the spot. He is demanding clarity on the constitutional and administrative implications of Government’s handling of the case.
Pule wants to know whether the Executive had lawful authority to permit a burial outcome that differed from earlier decisions of both the High Court and the Court of Appeal regarding interment inside the CKGR.
The matter has reopened uncomfortable questions about the supremacy of the law, separation of powers and whether Government can effectively create exceptions to rules governing protected areas after the courts have already pronounced themselves on related disputes.
The matter has reopened uncomfortable questions about the supremacy of the law, separation of powers and whether Government can effectively create exceptions to rules governing protected areas after the courts have already pronounced themselves on related disputes.
Pule also wants Government to explain how the decision can be reconciled with the constitutional principle of separation of powers and the obligation of the Executive to respect judicial authority.
The questions are expected to put the Government under pressure to explain whether the burial was authorised under an existing law, regulation or administrative discretion or whether an exceptional political or administrative decision was made outside the established framework.
Pule is also demanding to know whether Government assessed the wider policy consequences of creating what could become a precedent for future requests to bury relatives on ancestral land, particularly in protected areas such as the CKGR.
That question could prove particularly difficult for Government, given the sensitive history surrounding land, ancestral rights, conservation regulations and communities associated with the reserve.
If an exception was made in Gaoberekwe’s case, Pule wants to know what safeguards exist to ensure that similar requests are treated consistently rather than on a case-by-case basis.
Pule is also pressing the government to state whether it intends to introduce or amend legislation, regulations or policy frameworks governing ancestral burials in protected areas.
Without clear rules, future burial requests could trigger fresh disputes over who has the authority to approve them, what rights applicants possess and whether protected-area regulations can be waived, Pule suggests.
The demand effectively challenges Government to close a potentially dangerous legal grey area.
Without clear rules, future burial requests could trigger fresh disputes over who has the authority to approve them, what rights applicants possess and whether protected-area regulations can be waived, Pule suggests.
It is understood that the Gaoberekwe burial may therefore have become more than a dispute over where one person was laid to rest.
It is also understood that the matter b has evolved into a test of Government’s commitment to the rule of law and whether Executive discretion can survive where court authority already exists.
