UNIVERSITY OF BOTSWANA

DEPARTMENT OF LAW

END OF SEMESTER ONE EXAMINATIONS 2003/2004

COURSENO. LA W202 DURATION: 2 HRS DATE: DEC. 2003

TITLE OF PAPER: LAND AND MINERAL RESOURCES LAW IN

BOTSWANA

~
TITLE OF EXAMINATION:
M 0 RNIN GI AFTERN 00 N

INSTRUCTIONS:

1 THERE ARE E!YE QUESTIONS. ANSWER OUESTION ONE AND ANY OTHER
~ QUESTIONS.

2. QUESTION ONE IS COMPULSORY AND MUST BE ANSWERED IN BOTH PARTS.

3. STUDENTS ARE ALLOWED TO BRING INTO THE EXAMINATION ROOM

UNMARKED COPIES OF THE FOLLOWING:

a) STATE LAND ACT [CAP. 32:01]

b) TRIBAL LAND ACT [CAP. 32:02]
c) TRIBAL LAND (AMENDMENT) ACT NO. 14 OF 1993
d) LAND CONTROL ACT [CAP. 32:11]
e) ACQUISITION OF PROPERTY ACT [CAP. 32:01]
t) MINES AND MINERALS ACT NO. 17 OF 1999
g) TRANSFER DUTY ACT [CAP. 53:01]
h) CAPITAL TRANSFER ACT [CAP. 53:02]

4. CREDIT WILL BE GIVEN FOR:

a) Effective arrangement and presentation;

b) Clarity of explanation;
c) Effective useof relevant authorities;
d) Logical argument; and
e) Clear and conciseEnglish.

DO NOT TURN OVER TmS PAGE UNTIL YOU HAVE

BEEN TOLD TO DO SO BY THE SUPERVISOR

SUBJECT:
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Question One (Compulsory)

In 1911, the British government expropriated all land in the Tati District under
authority of the Order in Council of 1911 and the High Commissioner for South Africa
was given power to grant the land to Tati ConcessionsLimited, in full ownership. On
21 January 1911, the colonial government promulgated the Tati Concessions Land
Proclamation, 2 of 1911, in terms of which the land in the Tati District vested in the
Tati Concessions Limited. A portion of the land was set aside as a reserve for the
occupation of the African population, which reserve was under the control of the
government. Consequently, all Africans residing within the Tati District were
forcefully removed to the African Reserve.

Section 4 of the proclamation provided:

"It shall be lawful for the High Commissioner at any time to select and set
aside sites upon any land within the Tati District for the erection of public
buildings and for the use of officials of the Government of the Bechuanaland
Protectorate, and to occupy the same free of charge and without the
interference of any person or company; provided that in the case of land being
selected for any of the above purposes whereon improvements have beenmade
there shall be paid... to the party interested, the beneficial value of the said
improvements".

Section 7 expressly reserved the right to all minerals and precious stones under the
land in the Tati District, as also the right of prospecting for and mining the same,to the
Tati ConcessionsLimited.

In 1999, the Mines and Minerals Act, 1999 was enacted,its most notable feature being
that the legislation vested all rights of ownership in minerals in the Republic. In
addition, it empowered the Government to ensure, in the public interest, that the
mineral resources of Botswana are efficiently, beneficially and timely explored and
exploited.

Batswana permanently residing in the North East District are experiencing acute land
shortage. There are large deposits of gold and uranium known to exist in the land
owned by Tati Concessions Limited in the district. The Mineral Rights Tax, 1972
providing for the imposition of a tax on mineral rights, has not been successful in
compelling holders of mineral rights in the said land to undertake adequateprospecting
and mining operations.

The Government has decided to expropriate all the land and the rights to minerals
owned by Tati ConcessionsLimited. You have recently been appointed the Attomey-
General of Botswana.
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the President of the Republic as to:

a) the compulsory acquisition of the land owned by the Tati Concessions

Limited or its successorsin title;
[20 marks]

b) the compulsory acquisition of the rights to minerals in the said land.

[20 marks]
[Total: 40 marks]
Question Two

The Farm Forest Hil19-KO measuring 6000 morgen in extent, was originally held
by one Richard Goldman in terms of a deed registered under No.9 of 23 March
1898. The entire property was transferred to Aaron Siew on 10 June 1904, who
subdivided it and sold Portion 1, comprising 3000 morgen, to Theodore Richard
Transfeld on 27 June 1907. The remaining extent, measuring 3000 morgen, was
purchased by the Bamalete tribe and registered under No. 387 dated 1 July 1925 in
favour of Seboko Mokgosi, Chief of the Bamalete for and on behalf of the tribe.
On 12 February 1970, the Chief transferred a portion of the farm Portion 5 to the
Botswana Government under Deed of Transfer number 22/70. Portion 5 has now
been converted to Lot 5244 Gaborone. The area of Lot 5244 is now expressedas
163.4464hectares.

The boundary of the Bamalete Territory is defined as including the remainder of

the Farm Forest HiI19-KO under the provisions of the Tribal Territories Act [Cap.
32:03]. The Government of Botswana has been advised by the Attorney General
that all the land in the Bamalete tribal territory is owned and administered by the
Malete Land Board.

Analyse the juridical nature of the title, rights and interest to be found in the Farm
Forest Hill before and subsequent,to the subdivisions referred to above.

[20 marks]

Question Three

Discuss the juridical nature of the following instruments:

i) a retention licence;
ii) a mining licence;
iii) a minerals permit.

Advise
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Discuss the severanceof mineral rights from the title of ownership of land.

[20 marks]

Question Four

Mr. Kearekisa had been running a cattlepost for many years at Yena Pan in the
Central District. In 1994, the Ngwato Land Board pursuant to a site visit, issued a
Certificate of Customary Land Grant in his name. The certificate stated: "In
accordance with the provisions of Part III of the Tribal Land Act, 1968, and the
regulations made thereunder "Kearekisa has been granted for borehole transfer
purpose the use of an area of land at approximately... hectares in extent and
situated at Yena the boundaries of which area of land are demarcated by the
following boundary marks or natural features:

6.3 km south is Thema borehole;

8 km East is Modisatshwene borehole;

which boundaries have been pointed out to the said Kearekisa in the
presence of witnesses".

In addition, the certificate stated, "This grant is subject to the undermentioned

conditions: that no transfer and no relief should be done without Land Board
consent".

In 1996, Mr. Kerekile bought the cattlepost from Kearekisa and the certificate was
transferred into his name. In keeping with the Tribal Land Grazing Policy, the
Land Board undertook a cadastral survey resulting in the Central Western
Sandveld Proposed Ranches. Kerekile applied for a grant of common law lease
rights in respect of his cattlepost under the ranch scheme. The Land Board is
agreeableto the conclusion of a lease, but only in respect of land area measuring
6km x 6km. Kearekile insists that his land is 8km x 8km and, therefore, the Land
Board cannot, in law, reduce the size of the land in relation to the cattlepost but is
enjoined to recognise the original extent of the land.

Advise Mr Kerekile.

[20 marks]
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Question Five

Explain State policy with regard to attempts to achieve the redistribution of

freehold agricultural land by the following methods:

a) the statutory controls placed on the disposition or alienation such land;

[10 marks]

b) the imposition of specific taxes on the disposition or alienation of such

land.
[10 marks]

[Total: 20 marks]

END OF QUESTION PAPER