The development of the land tenure system in Botswana can be classified under three periods- pre-colonial, colonial and post-independence. Under the pre-colonial system land was administered by traditional chiefs/ Dikgosi in accordance with customary laws. During the colonial era, land was demarcated into three categories: crown land, native reserves, and freehold. Native reserves remained under the control of the Dikgosi, crown land was under the control of the state, while freehold land was under the control of the colonial administrators. Post-independence we have what is now known as tribal land, freehold and state land. In 1968, with the intention of improving tribal land tenure, the Tribal Land Act was enacted, the effect of which was to vest all tribal land in the newly created Land Boards .
In 1925, by deed of transfer and private treaty, the Bamalete Tribe (Bamalete) acquired Farm Forest Hill 9-KO (freehold land) (the Farm). On enactment of the Tribal Land Act, the Farm did not fall within the Bamalete tribal territory. The Farm was later incorporated into the Bamalete tribal territory by amendment of the Tribal Territories Act in 1973 (1973 Amendment), though the Bamalete had acquired the Farm.
On 22 March 2021 the High Court of Botswana heard a dispute stemming from the 1973 Amendment. The Malete Land Board (the Land Board) sought the cancellation of the deed of transfer in terms of which the Bamalete owned the Farm. In opposition, the Bamalete sought an order removing the provision in the Tribal Territories Act which includes the Farm as Bamalete Tribal Territory and an order declaring ownership of the Farm by the Bamalete.
The Court found that the intention of the Tribal Land Act and the Tribal Territories Act was to incorporate the Farm into the Bamalete Tribal Territory despite the fact that the Farm is freehold and held by the Bamalete under title deed. This means that the Farm is owned by the Land Board in trust. The issue before the Court was whether the Farm lawfully vests in the Land Board. The Court held that, in order to determine this issue, they had to determine whether the Bamalete had been unconstitutionally deprived of their property.
In terms of the Constitution private property can only be acquired by the state where the property is required for public purposes and upon prompt compensation for the property. Additionally, there should be a law that enables those affected by the acquisition to get prompt and adequate compensation and to further have access to the High Court if they dispute the acquisition of the property and/or the compensation.
The Court determined that the provisions relating to compulsory acquisition of property were not followed when the Farm was acquired by the Land Board; accordingly, the Bamalete had been unconstitutionally deprived of their property. The Court determined that Section 7 of the Tribal Territories Act was inconsistent with the Constitution and that the Farm vests in the Bamalete.
Following the Court’s ruling, the Farm is the private property of the Bamalete and falls outside the control of the Land Board.
The information contained in this newsflash was intended for our clients and correct to the best of the authors knowledge at the time of publication. Before making any decision or taking any action, you should consult the contacts listed here.
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