¹ It has been the tendency for many developing countries to vest most of, if not all, the land in the State. Botswana has, however, not only allowed active district level administration of land, but has on a number of occasions reduced the size of State owned land for the benefit of the districts.

² Cap. (Chapter) 32:02. This was originally enacted as Act No. 54 of 1968.

³ Bechuanaland Protectorate General Administration Order in Council, 9 05, 1891Google Scholar. Bechuanaland was the name given by the British to the area now called Botswana.

⁴ Tribal Territories Proclamation, No. 9, 29 03, 1899, as subsequently amendedGoogle Scholar. The Proclamation originally established and defined the boundaries of five Native Reserves: Bamangwato, Batawana, Bakhatla, Bakwena and Bangwaketse. These were eventually increased to eight through subsequent amendments which added Bakgatla and Bamalete Native Reserves, and Barolong Farms.

⁵ Bechuanaland Protectorate (Lands) Order in Council, 1904 and Bechuanaland Protectorate (Lands) Order in Council, 1910.

⁶ British Protectorate (Tati District) Order in Council, 1911 (4 May, 1911), read in conjunction with the Tati Concessions Land Proclamation, (21 January, 1911). The Preamble to the Proclamation read:

“To confirm the Tati Concessions, Limited, in the full free and undisturbed possession as owners of the land usually known as the Tati District.”

⁷ The British South Africa Land Proclamation (7 02, 1905)Google Scholar. The Preamble stated: “To grant to the British South Africa Company, Limited, the title to certain land”. The land in question was described in the First and Second Schedules which were vested in the Company “absolutely”.

The land under consideration was known as “Tuli Block”. Proclamation No. 13 of 1905 created the Tuli Block in favour of the British South Africa Company. This was formally granted under title deed dated on 22 02, 1906Google Scholar.

⁸ The freehold interests were generally owned by Europeans. Among these were areas such as Lobatse, Gaberones, Tuli and Tati Districts.

⁹ See the State Land Act, as amended, (Cap. 32:01).

¹⁰ Temane, Bahiti K., “Memorandum of Evidence presented to the Presidential Commission on Land Tenure in Botswana”; 07 1983, at p. 8Google Scholar. At the time of writing the Tribal Land Act was amended to take away land from the State in favour of the Tribal Territories; see die Tribal Land (Amendment) Act, No. 16 of 1985. The Presidential Commission, referred to here, was set up on 11 May, 1983 and it submitted its Report on 19 12, 1983Google Scholar.

¹¹ The Chieftainship Act (Cap. 41:01) in Section 2 lists eight Tribal Territories: Bamangwato, Batawana, Bakgatla, Bakwena, Bangwaketse, Bamalete and Batlokwa Tribal Territories, and Barolong Farms.

¹² The Tati Concessions Land Act, (Cap. 32:05). The original date of commencement, 21 01, 1911, is retainedGoogle Scholar.

¹³ The British South Africa Company Land Act, (Cap. 32:06) provides: “An Act to grant to the British South Africa Company Limited the title to certain land;” commencing, 7 02, 1905Google Scholar.

¹⁴ Statutory Instrument (S.I.) No. 6 of 1970.

¹⁵ The amendments have been in the following sequence: Act No. 48 1969, No. 62 of 1970; No. 70 of 1970; No. 42 of 1971; No. 13 of 1975; No. 21 of 1976; No. 4 of 1979; No. 24 of 1980; No. 26 of 1982; No. 33 of 1983; No. 3 of 1984; No. 24 of 1984; No. 16 of 1985; No. 5 of 1986. With the exception of No. 62 of 1970 and No. 4 of 1979 all the other amendments are still in force.

¹⁶ Subsection 1 reads: There is hereby established in respect of every tribal area set out in the first column of the First Schedule a land board having the name or title set opposite thereto in the second column thereof, and composed of the members set opposite thereto in the third column thereof.

¹⁷ The Act defines tribal area to mean—

(a)every tribal territory as defined in Section 2 of the Chieftainship Law, 1965 (No. 29 of 1963), (now Cap. 41:01); and

(b)the areas defined in the Second, Third, Fourth and Fifth Schedules. The areas under (b) are the Tati Tribal Area, Chobe Tribal Area, Ghanzi Tribal Area and Kgalagadi Tribal Area. Together with the Tribal Territories they make up twelve tribal areas for purposes of administering the tribal lands.

¹⁸ S. 3(6) empowers the Minister, by an order, to vary the membership of any land board if he finds it necessary to do so.

¹⁹ S. 19(l)(a). 35 Subordinate Land Boards have been established, see, Establishment of Subordinate Land Boards Order, Statutory Instrument (S.I.) No. 47 of 1973. The Subordinate Land Boards, however, do not form part of this discussion.

²⁰ It is not clear why the number is not equal among all the tribal areas. It may presumably have to do with the sizes of the areas.

²¹ The Minister for Local Government and Lands.

²² See note 20, supra. Where the Minister appoints four members the total membership of the board is eight; but if he appoints six the number increases to ten. It is thus obvious that the Minister's appointment determines whether the overall membership of a board is either eight or ten. The number of elected and ex-officio members remains constant.

²³ S. 4(1).

²⁴ Provided under s. 6. This is discussed below.

²⁵ The Minister's approval is required.

²⁶ The Act defines a member as “… means a member of a land board but does not include a person co-opted under the provisions of section 5.”

²⁷ A person qualifies to become a member of a District Council if he is qualified to vote in the District Council elections and is not disqualified by virtue of section 62 of the Constitution to be a member of the National Assembly; see ss. 7 and 15 of the Local Government (District Councils) Act (Cap. 40:01).

²⁸ A number of offences under the Penal Code (Cap. 08:01) carry the penalty of imprisonment and/or a fine. s. 29(3) specifically provides:

“A person convicted of an offence punishable with imprisonment may be sentenced to pay a fine in addition to or instead of imprisonment.”

²⁹ See, supra, discussion under “Disqualification”.

³⁰ A member's illness or absence here is deemed to be of indefinite period whereas under section 4(1) the illness or absence is temporary.

³¹ S. 3(5) Quorum is discussed under “Procedure” below.

³² Regulation 3, The Tribal Land Regulations, 1970. Hereinafter referred to merely as “Regulation” (abbreviated, Reg.) and followed by the relevant number.

³³ S. 8.

³⁴ Reg. 4.

³⁵ The Peoples of Botswana. The singular is “Motswana”.

³⁶ S. 10(1). This excludes privately owned land or a private water right.

³⁷ Ibid.

³⁸ Ibid.

³⁹ S. 9(1).

⁴⁰ S. 32.

⁴¹ S. 7.

⁴² S. 7(2).

⁴³ S. 7(3).

⁴⁴ S. 12.

⁴⁵ S.13(1)(a)(b).

⁴⁶ S. 13(1)(c).

⁴⁷ S. 13(2).

⁴⁸ S. 13(1)(d).

⁴⁹ See Schapera, generally I., A Handbook of Tswana Law and Custom, (1938) Chap. XIGoogle Scholar. The Presidential Commission on Land Tenure in its Report (1983) also identified the three characteristics of customary land tenure.

⁵⁰ The Report of the Presidential Commission on Land Tenure, 1983 pointed out this problem: para. 2·05, at p. 5 of the ReportGoogle Scholar.

⁵¹ These are grazing stations which are selected because of the quality of the pasture and their accessibility to water. To some extent it can be argued that the establishment of cattleposts leads to the allocation of land in the grazing area to specific individuals, especially through the ward system. Once a “cattle post” has been created a certain radius around the post is generally respected to be within the exclusive use of the one who holds the cattle post. The claim that under traditional land tenure the communal grazing land is not for allocation to members of the tribe, therefore, needs some qualification.

⁵² With the introduction of the Tribal Grazing Land Policy (T.G.L.P.) this position is changing. Now grazing land can be communal and commercial. Common law leases can be granted to persons who may have exclusive rights to the areas under lease.

⁵³ The Act defines “tribesman” as, “in relation to any tribal area means a citizen of Botswana who is a member of the tribe occupying the tribal area”.

⁵⁴ This is in line with the customary law under which a tribesman has an inherent right to a free use of land.

⁵⁵ Reg. 9.

⁵⁶ Presumably an exemption is contemplated in respect of other Batswana or peoples from neighbouring countries and having identical customs, who have over a long period lived and worked within the tribal area. Some of these people in most cases, have many things in common with the tribesmen.

⁵⁷ S. 21 reads: “Nothing in this part shall be deemed to prevent a land board from making a grant of land to a tribesman under the provisions of Part IV …”.

⁵⁸ Ibid.

⁵⁹ Under s. 24 a land board may grant either a lease of any size of land and duration or an ownership in land. This must, however, be consented to by the Minister. More is said about this (infra) under “Common Law Grant”.

⁶⁰ S. 20(2).

⁶¹ Reg. 7(1).

⁶² Reg. 7(2).

⁶³ S. 14.

⁶⁴ Reg. 13(1).

⁶⁵ Reg. 11(1)(4).

⁶⁶ S. 16(1). A duplicate copy of the Certificate is to “be retained by the Secretary of the Land Board and kept in a register which shall be open to inspection …” The First Schedule to the Tribal Land Regulations, S.I. 6, 1970, prescribes the form of the Certificate, see Reg. 12.

⁶⁷ Reg. 11(4).

⁶⁸ Reg. 11(2).

⁶⁹ Reg. 11(3).

⁷⁰ Reg 16(1).

⁷¹ Schapera claims that this was the practice among the Ngwato. With regard to other tribes this practice of witchcraft could be visited with death by stoning where the victim of the witchcraft died. See Schapera, Chap. XV.

⁷² Proclamation No. 7 of 1927 made it a penal offence for anyone to impute the practice of any form of sorcery, including witchcraft, to any person; commencing on 27 04, 1927Google Scholar. This is now contained in the Witchcraft Act (Cap. 09:02).

⁷³ With the size of Botswana at 582,000 square kilometres and the population by the 1981 census assessed under 1 million, there is so much land for every Motswana.

⁷⁴ The saying is attributed to a famous Ghanaian Chief, Nana Sir Ofori Atta I. It was later applied in the Nigerian case of Tijani v. Secretary, Southern Nigeria [1921] 2 A.C. 399 (P.C.) at pp. 404–5Google Scholar, quoting extensively from the Report on Land Tenure in West Africa, 1898, by Rayner, C.J.

⁷⁵ This is a more logical view. The one who later abandons the land after initial usage is just as negligent as his counterpart who does nothing on the land during the first five years. In either case the land is not being put to practical use.

⁷⁶ This view is, however, disputed by the Presidential Commission on Land Tenure. The Commission found that the expansion of residential areas has encroached upon arable areas and the arable areas are expanding into grazing land with the result that the grazing land is shrinking in size; see paragraph 2.05 of the Commission's Report at p. 5; cf. note 50, supra.

⁷⁷ This is a standard form lease agreement used by all the land boards. When some Administrative Staff from the land boards took part in a course at the University of Botswana, (May to 08, 1985) they pointed out that they were more familiar with the term development than cultivationGoogle Scholar. This is understandable since they are used to executing leases which incorporate development and not cultivation. Cultivation forms part of “development”.

⁷⁸ The writer holds the view that it is normally against the spirit of democratic and harmonious relationship to allow an owner the power of self-help. In any case under the Roman-Dutch Law the action of Mandament van Spolie would lie against such an owner. Generally Mandament van Spoilt is an action available to one who has been unlawfully dispossessed of something which was under his possession. All that he needs to do is to prove two things; namely, that the subject matter was under his lawful possession and that the defendant used “self-help” to acquire possession. The court does not examine the merits of claim of ownership once plaintiff's claim of peaceful possession has been proved. In this sense the action may lie against even owners. But this is temporary since subsequent application may establish ownership.

It is not clear why the manner of effecting cancellation is not provided under the customary grant whilst the land board in the case of common law cancellation is expected to bring an action before the Subordinate or the High Court as the case may be, see s. 28, which is discussed infra.

⁷⁹ S. 22. Under s. 12 the word “determination” is used as opposed to “cancellation” in s. 22. It is assumed that they are deemed to convey the same meaning. Alternatively “cancellation” should be used throughout for the sake of consistency. For instance, in s. 13 “cancellation” appears in respect of the grounds for recovery of possesion.

⁸⁰ Ss. 23 & 24.

⁸¹ S. 23(1).

⁸² Ibid.

⁸³ S. 24(1).

⁸⁴ The Report of the Presidential Commission on Land Tenure 1983, indicated that the Land Boards have so far not utilized this power of granting freehold interests in land, see para. 2.04 of the Report.

⁸⁵ The granting of a lease of land which does not exceed five acres in extent does not seem to raise any serious problems. A board can grant this type of lease without any hindrance. It is a lease of land in excess of five acres that requires compliance with some strict rules. The discussion, hereinafter, unless otherwise expressly stated, is to be limited to leases which are more than five acres.

⁸⁶ This falls under the cardinal and elementary principle of interpretation which suggests that words are to be accorded their plain and natural meaning, unless an undue reliance on such approach will lead to absurdities.

⁸⁷ S. 24(1). The Act defines lease to include any agreement—

(i) whereby the right to occupy land for a determined or determinable period of time is conferred;

(ii) whereby permission, terminable at the will of the grantor, to occupy land is conferred; whether or not any consideration is payable for such right or permission.

⁸⁸ S. 24(2).

⁸⁹ S. 24(8).

⁹⁰ S. 26(1). It reads: “The rights conferred upon any person under any grant made under the provisions of section 24 shall not be transferred to any other person by any voluntary act of such person … without the consent in writing of the land board.” It seems the section is mainly concerned with “voluntary transfer” by the grantee. In that sense the sale in execution should not be covered by the provision.

⁹¹ S. 26(2).

⁹² Under the Roman-Dutch legal system a valid registration is the mode for the valid transfer of title in immovable property. This falls under the derivative method of acquisition of property as opposed to the original means. In the case of movables, as a general rule, physical delivery is enough to constitute a valid transfer.

⁹³ Cap. 33:03. It originally came out as Proclamation No. 36 of 1960, commencing on 07 15, 1960Google Scholar.

⁹⁴ S. 26(3). The appeal is to be lodged within a period of three months from the date the grantee became aware of the board's decision; see Reg. 24(1).

⁹⁵ An example can be found in s. 33(3) where an application lies to the Courts in the event of parties not being able to make a satisfactory arrangement in respect of compensation after a tribal land has been acquired by the State.

⁹⁶ At the time of writing s. 26 of the Act was amended by adding proviso to the section: “Provided that the land board's consent shall not be required in the case of a sale in execution to a person who is a citizen of Botswana”. See the Tribal Land (Amendment) Act. No. 5 of 1986.

⁹⁷ S. 29

⁹⁸ S. 24(6).

⁹⁹ Some Land Board Administrative Staff claim that at times the notice takes too long to reach the grantee. In such circumstances it will be suicidal for a grantee to rely on notice before registering his grant.

¹⁰⁰ That is a lease for agricultural or horticultural purposes.

¹⁰¹ Reg. 19(2).

¹⁰² Reg. 21(6).

¹⁰³ Reg. 21(7).

¹⁰⁴ S. 28.

¹⁰⁵ One major likely outcome is that the common law system of land tenure may surpass and override the customary system. The signs are already very clear. Now, even those already possessing rights in land are willing to convert those rights into leases of 99 years. This is primarily to afford them the opportunity to mortgage such interests for loans. The Presidential Commission on Land Tenure, on the basis of representations received in the rural areas, made that recommendation which has been accepted by the Government in its White Paper. It is, however, doubtful if the traditional system of land tenure will disappear completely from the tribal areas within a relatively short period. It still remains inextricably basic to the peoples' whole culture and mode of living.