Author: Chanda Masendu-Kusane

In 2017, the Botswana Parliament enacted several laws. Amongst the laws passed was the Tribal Land Act No. 1 of 2018, a re-enactment of the Tribal Land Act, which followed a repeal of Tribal Land Act No. 54 of 1968. The new act, which came into operation on April 20, 2022, has introduced a number of changes in relation to tribal land management and administration.

The Act introduces a new way of holding tribal land being a Deed of Customary Land Grant, which is to be registered at the Deeds Registry.

People who hold tribal land by either a certificate of customary land grant or a lease must apply to register their certificates or leases with  the Land Board within six months from April 20, 2022.

Below are some of the other significant changes:

1. Section 4 – Vests Tribal Land in Land Boards in trust for the benefit and advantage of Citizens of Botswana and for the purpose of promoting the economic and social development of all peoples of Botswana
2. Section 5(3) – Permits transfer of Land Board functions/powers to other bodies with the consent of the Minister.
3. Section 5(5) – Requires consultation with Tribal Administration and District Councils in formulation of Land Board policies.
4. Section14(1) – Establishment of Land Board Committees to enhance efficiency.
5. Section23(1) – Introduces compulsory registration of tribal land grants at Deeds Registry.
6. Section 23(4), (5), (8) – Requires that all persons who are already in occupation of land granted to them under the repealed Act and those allocated by Dikgosi prior to establishment of Land Boards must apply within 6(six) months of commencement of the Act  for the registration of their grants. the Land Board is empowered to register the grant at Deeds Registry on the strength of BS’s affidavit.
7. Section 31 (1) – Empowers Land Boards to repossess any land for purposes of ensuring fair and just distribution of land among citizens or for any purpose that does not require acquisition of land by the state.
8. Section 32 (1) (2) – A person may be allocated alternative land if available and is entitled to adequate compensation
9. Section 32 (1) (2) – Factors to be considered in determining adequate compensation are as follows:
10. Market value
11. The fact that the person claiming compensation has been granted the right to use other land if available,
12. Increase in accrual value
13. Reasonable expenses incidental to any change of residence or business of any person interested
14. Section 32 (1) (2) – Transactions that require consent of the Board:
15. Transfer, mortgage, charge or lease capable of running for a period of five years
16. Division of land in two or more parcels
17. Issue, sale, transfer of shares or any other disposal of or dealing with, any share in a private company
18. Section 33 (1) The following transactions do not require consent:
    1. Sale in execution to a citizen of Botswana
    1. Mortgage Bond by citizens of Botswana
    1. Devolution of land on inheritance
19. Section 34 – Requires notice of publication in the Government Gazette and at least one newspaper circulating in Botswana for Land Board consent where land transactions are proposed in favour of a non-citizen
20. Section 37 – Transactions carried out in contravention of the provisions of this part are void.  Consent to Land Board should be applied for within three months from the date of the proposed transaction
21. Section 37 (3)- The section does not apply to a transaction in land by virtue of a will or intestacy of a deceased person unless the transaction would result in division of land into two or more parcels
22. Section 32(6) – Provides for appeals to The Land Tribunal on issues of repossession and compensation
23. Section 43 – Empowers Land Boards to cancel customary grants for a number of reasons which include a situation where the grant was induced by fraud or misrepresentation, non development or failure to demarcate boundaries.
24.  Section 44(1) Section 47 – Where there has been a breach of any terms and conditions of any grant, Land Boards are empowered to apply to the Land Tribunal for recovery of the land.
25. Section 53 – Empowers Land Boards to create subordinate Land Boards with the consent of the Minister
26. Section 52- Establishes Botswana Association of Tribal Land Authorities (BATLA) and outlines its functions
27. Section 55 & Section 56 – Repeal the Tribal Land Act, 1968.  Certificates, leases and decisions made under the repealed Act remain valid.