In 2006, the government decision to evict the Basarwa community from the CKGR was held to be illegal and unconstitutional by the High Court of Botswana. Following the decision, the government stated that should the Basarwa community insist to stay in CKGR, they would have themselves to blame for the acute shortage of water as the government will not provide water. The Matsipane couple, acting as representatives of the Basarwa community, took the case to the Botswana High Court asking the Court to declare that they have the right to abstract water at will, in unlimited quantities from an unspecified number of boreholes.The High Court ruled against the Basarwa on the ground that the Water Act, cap 34:01, prohibits from accessing the borehole or drilling a new one inside the reserve. While the applicants relied on section 6 for authority to abstract water without approval, the High Court were of the view that section 9 prohibits abstraction of water without a permission granted under the Water Act. Dissatisfied with the decision of the High Court, the applicants appealed to the Court of Appeal of Botswana.
The Court of Appeal decided in favour of the Basarwa community. According to the Court, access to water was denied to the CKGR indigenous peoples and this was the cause of human suffering at Mothomelo, situated in CKGR. The permission to use water from the borehole was conferred to the indigenous people based on the interpretation of sections 6 and 9 of the Water Act, cap 34:01. Section 6 does not provide for a right to water as such but allows a lawful owner or occupier of any land to “sink or deepen any well or borehole”. As lawful occupants of the settlements in the CKGR, Basarwa have the right to abstract water for domestic use. The government has failed to show evidence that it was entitled to seal the Mothomelo borehole as it did. The Court was of the view that for the occupation of the Basarwa Community to be meaningful, they must be able to get underground water. The Court was of the opinion that the government of Botswana has violated the Botswana Constitution by denying them access to water which is contrary to the constitutional provision protecting individuals from inhuman and degrading treatment. Most significantly, despite the fact that the right to access to water falls under socio- economic rights which are not expressly enshrined in the Botswana bill of rights, the Court used a purposive approach in interpreting the constitutional provisions relating to civil and political rights to arrive at a conclusion that the Basarwa have a right to access to water. The Court was of the view that denial of access to water is a form of inhuman and degrading treatment. The Court has thus adopted a progressive interpretation of the Constitution which benefits the Basarwa Community and upholds their basic human rights.
The Court of Appeal has also shown interest in considering the right of indigenous peoples as highlighted under international law. It cited article 7(1) of the United Nations Declaration on the Rights of Indigenous Peoples which provides as follows: “Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person”. The Court also quoted the report of the United Nations Committee on Economic, Social and Cultural Rights as a reference to emphasize the right to water of indigenous peoples. The judges revealed that the United Nations General Assembly recognised the right to safe and clean drinking water as a fundamental right that is essential for the full enjoyment of life and all human rights. They said the Botswana government has failed to comply with its constitutional obligations towards Basarwa by subjecting them to degrading and inhuman treatment. Basarwa have a right to reside in the CKGR and that right is not only limited to the 189 applicants in the Roy Sesana vs the State, that was concluded in 2006. He said the 189 applicants litigated on their own behalf and for all the members of their community in the CKGR.