LAND LAW ASSIGNMENT 1

September 2022

Makatendeka Foroma 202000010 Tshep-

iso Keakitsi 202006432
Thata Malefho 202001391
Amantle Mokoto 202002905
Lindani Mudongo 202000158
Thuo Rammidi 201904208
Atlang Thamane 202003533
With the aid of legal authorities, CRITICALLY DISCUSS the above comments within
the context of land law in Botswana.

Our national anthem begins by making a strong claim to ownership of land by Batswana. The
words “This is our land; it is a gift from God” suggest the belief that land is a right to which
one receives from God and not from people. This paper will attempt to display how that be-
lief has been challenged over time from the days when our fore-father ruled over their gift
without any interference from outsiders to the time when the outsiders penetrated our borders
in the process working their way to be able to make their own claim over our land and even-
tually the paper will set out to display how these events have led to the land law of the coun-
try being designed as we know it to be today. The same land law that has a said-purpose to
protect the interests of people and control over the land.

PRE-COLONIAL PERIOD

The size of the country is Approximately 580 000 square kilometres. Before colonisation by
the British, the chiefs of the tribes in Botswana used to govern the country, including control
over what happened to the land. They instilled their version of land law in Botswana. In
Schapera’s description the most important political and social unit for land control and use
purposes was the tribe1. An insight on how land was used during this period is that the chief
exercised most power, there was no such thing as private or sole ownership as the chief had
absolute power and control over the tribal lands. Land was only for ward members so non-
tribesmen did not get any land. The chiefs controlled who owned the land, when they would
get to use the land and they distributed it to the families. For example, only married men were
given land for their families and their wives would get ploughing land from their husbands,
everyone else would get what was distributed to them by the head of the family. Unmarried
women did not have any rights of usage over land and unmarried men had no land at all, un-
less it was the section they got from their family head. We will now elaborate on how resi-
dential land, livestock, arable land and grazing and water rights were managed.

Residential land: during distribution, chief firstly selects the site for the kgotla and his own
quarters. Headmen then select the site for their own kraal and huts thereafter he allocates the
site to every household head. Rights of ownership of the land allocated belonged to that spe-
cific family and it was passed down. With acquisition of land, all married tribesmen are enti-
tled to land to build his home and headmen ensure that they do not take anyone else’s land. If
there was a shortage of land, then the headmen looked for space or alternatively the village
would move.

Arable land: arable land was only for married men. Chief would go looking for suitable cul-
tivation land and take the best one. Afterwards the headmen would see it then select for their
own families and then allocate to the villagers. Married men were able to have as much land
as they wanted and they would set one aside for their wife. Acquisition of arable land was
that after a son got married, he would ask his father for land and that would be the land he
uses with his new wife. Unmarried women got land from their fathers but once they were
1 Schapera, Handbook of Tswana Law

1
married it would go back to their fathers. Arable land could be borrowed but it was never to
be sold.

Livestock: livestock was a given through inheritance, gift, service, sale and/or exchange and
maintenance fees. Cattle for unmarried sons and daughters were under the father’s control
and in married families the cattle were divided into two, for the family head and for the
wives.

Grazing and Water rights: pasture land was allocated by the chief towards and the headmen
supervised the usage. It was not hereditary. All members of the ward could use the land with-
out permission but if they wanted to build boreholes they had to ask for permission from the
Chief.

The common theme depicted in terms of the trend of land for its multiple purposes is that
once land was allocated by the chief, that land would stay within the confines of the family
unit. Sons inherited the land from their fathers and so on and so forth. This practice is the ba-
sis and foundation of the line in the national anthem which says “Fatshe leno la rona ke mpho
ya Modimo, ke boswa jwa bo rraetsho” which roughly translates to “This land of ours is a gift
from God and it is our inheritance.”

What we can get from this brief discussion on land law before the colonisation occurred is
that the chiefs were in full control. They looked for the land, had first pick and then assigned
the headmen to distribute the land to ward members. When the British started to intervene
and seep their claws into the Tswana land law a shift occurred, and that shift will be dis-
cussed. The fact that multiple chiefs were in charge of the entirety of all the 580 000 square
kilometres by claiming ownership of different portions of land played a role in how Batswana
would lose their land to foreign nationals.

COLONIAL PERIOD

During the colonial period, Bechuanaland was made a protectorate. From 1891, the Crown
was able to legislate over all inhabitants of Bechuanaland Protectorate and the administration.
This was made possible by the Foreign Jurisdiction Act of 1890. The Crown used ‘indirect
rule’ as the chiefs ruled over their people.

The colonial period has had the biggest influence in the shape of our land tenure systems to-
day. In our national anthem, there is a call for peace and a call for citizens to rise in order to
protect their land and the peace the reigns of it. For purposes of tenure classification, land in
Botswana falls under the three main categories of freehold land, state land and tribal land. As
will become apparent, this has been the position since the early days of colonial rule. At inde-
pendence in 1966, freehold land comprised about 6% of the total land area, state land about
47%, and tribal land about 48%. Recent estimates now place freehold land at 5%, state land
at 25%, and tribal land at about 70%.2

2 Land tenure reform in Botswana: post-colonial developments and future prospects Clement Ng 'ong ’old

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Free hold land may be defined as land ownership where a party has full rights to the land. To-
tal dominium ownership for 999 years. It is derived from English law. Freehold land in the
colonial period was constructed in different ways due to the different events that occurred for
people to claim full ownership of land. One of the first of these was when the early settlers
claimed to have secured the full ownership of land from African Chiefs and rulers. The rea-
soning behind the African Chiefs handing over the land to the foreigners has always been de-
batable in the sense that their overall knowledge of land law and the benefits for future gener-
ations was limited. In 1889 the British South African Company (BSCA) was formed by an
order of the British government. It was a private company with the express purpose of devel-
oping the land between the protectorate and up north. The BSCA was interested in acquiring
land by concessions, rights, and treaties. One of the scenarios that suggest that the chiefs may
have had no intentions of handing over full and permanent rights of land ownership was in
1893 when the BSCA wanted to acquire and take over land in the Ngami area. They sent
Boer trackers to go talk Sekgoma Letsholathebe into signing a treaty with the Queen while in
fact they had forged a document that transferred the land from Sekgoma to the Boer trekkers,
all this happened in the kgotla, so they were witnesses who vowed that they believed it was a
treaty of friendship rather than transfer of land.

On the Ghanzi ridge in the western part of the country, the so-called Ghanzi freehold farms
were initially allocated as perpetual quitrents. The grantees were not true owners because
they were liable to pay an annual rental and the interest was determinable for non-payment of
rent. They were not true lessees either because the land could be occupied perpetually. It was
only towards the end of colonial rule, in the late 1950s, that the quitrents were converted into
freehold rights after a belated definitive survey and demarcation of the farms. 3 The Protec-
torate administration refused to recognise and acknowledge legitimate claims of several
Basarwa communities over the area4. This goes to show that the mode in which rights over
freehold land were claimed was questionable. Most of the freehold land was originally allo-
cated to two companies in the Northeast, the Tati Concessions Limited secured the entire Tati
District on the strength of concessions secured from Lobengula, the Matebele Chief, who was
controversially recognised as the political authority of the area. Along the South-eastern bor-
der the land was ‘surrendered’ by African chiefs and allocated to the BSCA as part of the
scheme to extend the Mafeking to Bulawayo railway through the protectorate. The law under
which title was transferred to the BSAC stipulated that the land would vest in the company
‘absolutely’ and it would have the right and power to alienate the land ‘for a term of years or
in perpetuity, and either absolutely or by way of mortgage or otherwise.’ For the Tati Conces-
sions Limited it was more explicitly stated that the company, its successors in title and as-
signs, would have ‘frill, free and undisturbed possession as owners of all the land within the
Tati District.5

3 Land tenure reform in Botswana: post-colonial developments and future prospects Clement Ng 'ong ’old
4 M Guenther The farm Bushmen of Ghanzi district oof Botswana Stuttgart (1979) 54-57
5 Section 1 of Proclamation 2 of 1911

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State Land category was designated as Crown lands before independence. High Commis-
sioner would have the power to make grants or leases of the lands ‘on such terms and condi-
tions as he may think fit’, subject to any directions received from the secretaries of state.6

Tribal Land in the Bechuanaland protectorate had reserves that attempted to recreate and pre-
serve the traditional territories of the dominant Tswana tribes. There was no transfer of title to
the colonial authorities. Chiefs and other tribal authorities retained substantial powers of land
control and administration, and customary laws continued to govern tenurial arrangements.
There was no attempt by the colonial authorities to subvert or influence normal evolution and
transformation of customary tenurial systems.

POST-COLONIAL PERIOD

Upon gaining our independence, we received laws that formed the post-independence legal
system of Botswana. Botswana became an independent country in September 1966. Accord-
ing to the Transfer Duty Act, every piece of legislation has its origin from the British colonial
government except for the Tribal Land Act7. It was the first major land reform effort and
was created in 1968 but was started in 1970. It was said that the reason behind wanting to
codify the land system was that it was believed that the system needed to be democratised
and to ensure equal access to land and the chief having full powers would not ensure this. The
chiefs’ powers to allocate land went to the respective land boards. Section 38 of the act was to
establish land boards and subordinate land boards to replace headmen. Section 13 (1) read
with Section 109 said that all chiefs power was transferred to land boards. The act provided
that the land board could grant leasehold rights (short-term and long-term) under common
law to enable citizens to conduct businesses on their land. During the pre-colonial period, this
was never possible.

While evaluating the legal changes to the legislation of land law and tribal land law revisions,
it is crucial to keep in mind that the nature of land tenure laws is not static. It changes in reac -
tion to alterations in the economy and population. Land in modern society is valuable, and so-
ciety desires to profit from it. Western culture has placed an emphasis on individualism,
which is a concept that has gradually been adopted. There are cases where the private alloca-
tion of land has been a land issue since the implementation of western influenced legislation,
in regards to ownership and land tenure.

This is shown in the case of Kweneng land board v Kabelo Matlho10. The defendant had sold
the land to a business man in his own private capacity and believed he was the owner of the
land, as he had inherited it from his father who got it from his grandfather. It had been part of
the family. The land board claimed that since it was tribal land, he needed permission from
them before making the sale. The defendant was seen as the owner of the land in his private
capacity if the family was hence his to hold in his private capacity. The judge went on to re-

6 Bechuanaland Protectorate (Lands) Order in Council of 16 May 1904

7 Tribal Land Act 1968
8 Section 3 of the Tribal Land Act
9 Ibid.
10 Kweneng Land Board v Kabelo Matlho 1992 BLR 292

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mind us that Customary law is not static, its forever evolving and private ownership may be
the next step in to the future. This case shows hope in the land tenure system of Botswana
evolving and leading to Batswana owning tribal land .

The national anthem says “ke boswa ja bo rraetsho”, does this still exist in the modern day?
This means that the land is a gift or inheritance from past generations and Batswana should
enjoy it. In the case of Kweneng Land board v Bosele syndicate 11, a syndicate had fenced up
grazing land, this grazing land was 260 km. The reasoning behind it was to protect cattle
from the attack of carnivores. The land board had gone against this action, as it was not the
syndicates land, and furthermore fencing communal land would be alienating others from us-
ing it. Alienation would go against the whole concept of communal land. This shows how the
land tenure system in Botswana is still inclusive and creates a sense of belonging to those
who use it. This also shows us how “Fatshe leno la rona” still exists, as grazing land is sup-
posed to be enjoyed by everyone in that area. This also shows respect to the culture and how
the land board, like the chief allocates grazing land, showing that culture is being preserved.
The land tenure system may have its flaws but in essence is still working like how it was cre-
ated.

The statement “Fatshe leno la rona”, tackles the concept of ownership. The land tenure sys-
tem works with grants meaning you are never truly the owner of the land, you just have rights
similar to an owner. This basically means Batswana do not own the land. This was proven in
the case of Phumaphi v Ngwato Land board12. The dispute was whether when someone had
rights to a borehole, do they own the land the borehole was on no matter how small or big.
This can also be brought to prove the argument of ownership of tribal land in Botswana. Does
the fact that they have rights to the land, means its theirs? It was held that if one has rights of
something, in this instance it was held that if one has rights to a borehole, it does not mean
they have rights to the land its own. This shows how Batswana do not own land they just
have the rights to it. This proves how the land tenure system has taken away ownership from
Batswana and hence going against the very concept of “Fatshe le no la rona.”

In Kweneng land board and Mpofu13, the issue at hand was whether individuals can hold
land in tribal areas designated by legislation as vesting in and thus falling under the jurisdic-
tion of land boards established by the Tribal Land Act in their personal and private capacities,
i.e. have freehold title to the land and alienate it to others. The first respondent, a Zimbab-
wean citizen, purchased a plot in Mogoditshane from the second respondent in 1989 and built
a house on it. The plot fell under the jurisdiction of the Kweneng Land Board, which was es-
tablished by the Tribal Land Act in 1970. The second respondent received the plot as a gift
from her mother, who in turn received it from her mother (now deceased), who was assigned
it to cultivate by the chief of the area in 1910, in accordance with Bakwena customary law.
The term used to verify the sale of customarily gifted land for the purposes of transfer is
called a “donation.” The land board needs to see that the seller is giving the land to the buyer
who would then have to accept it. This is as according to customary law. The first respondent

11 Kweneng Land Board v Bosele Syndicate and others 2001 (1) BLR 208
12 Mphaphi Phumaphi v Ngwato Land Board 2003 (2) BLR 33
13 Kweneng Land Board v Mpofu Nong and Another 2005 (1) BLR 3

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had said she would formalise the purchase at the Botswana land board. She sent her applica-
tion but didn’t get a response for 4 years. She put up a fence around the plot. Putting a fence
around a piece of land means you are excluding people from using it and it becomes a source
of an individual’s private economic benefit. The land board stated that she did not have the
necessary permission to build the house but she proceeded to do it anyway. They said her ap-
plication was lost and that she would have to reapply. She sent a fresh application and heard
nothing till she was called to a meeting to discuss her alleged building operations on the land
in question. She was then called to a second meeting of the Mogoditshane board where she
was told that she had to vacate the plot within 10 days. The court held that, under the custom-
ary law there was no tribal land which could be held by anyone in his 'personal and private
capacity' or, in other words, in which he had a right of ownership. It did not matter how long
the land had been held. Acquisitive prescription was unknown to the customary law. The first
respondents’ occupancy of the land was accordingly declared unlawful. There was no cancel-
lation of the grant of land passed down customarily.

In the Kweneng Land Board v Selaki14 case, section 13(1) provides that the land board now
has all the authority that the chief had in the past under customary law, including the ability
to issue rights to use any land, revoke those rights, including those granted before the Act was
passed, and impose restrictions on that use. The facts of the case are as follows; The second
defendant was supposed to get a plot from the first defendant in 1995 so that they may build a
house on it. Such an allocation is unlawful under the Act. The Town and Country Planning
Act has been broken by the second defendant, who built residential structures on the property.
The first defendant was likewise utilising the land illegally when he gave it to the second de-
fendant with the intention of having a house built there. He also broke the Town and Country
Planning Act in doing so. Both an order of ejectment against the second defendant and an or-
der cancelling the grant to the first defendant are requested by the plaintiff.

The land in question is located in the Mogoditshane region, which had been classified as a
planning area. As a result, no development may be carried out on land within the planning
area without the approval of the local planning authority. The second defendant occupied the
land through the first defendant who is the holder of a valid grant. Unless and until such grant
is validly cancelled, this court could not adjudicate on the second defendant's right to occupy
the land as his occupation is intricately intertwined with the customary rights of the first de-
fendant. The second defendant claimed that the first defendant had informed him that the land
had passed to him by customary grant and that, as a result, he held the land in his private and
individual capacity. One must distinguish between the Act's definition of the right to occupy
land and the right to utilise that land, the latter of which must always adhere to the Town and
Country Planning Act's rules. The Land Board was authorised to apply the terms of this Act
against the offender due to a violation of the Town and Country Planning Act. A right to oc-
cupy the land is separate and apart from the use of the land for nonconforming purposes.
Even someone with an unquestionable title to land cannot use that land in a manner that vio-
lates the terms of the planning plans.

14 Kweneng Land Board v Daniel Selaki Civil 2004 (1) BLR 154 and 2004 (2) BLR 62

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In the decision, the court brought up the terms of s 5(3) of the Town and Country Planning
Act. It was said that the functions of the Town and Country Planning Board were to deter-
mine applications for permission to develop land and to advise the Minister on any matter on
which the Minister may seek its advice. No power is given to the Board to grant or cancel
rights to land. These latter powers have been given to the land board. If the claimant violates
the restrictions imposed under s. 13(1) of the Act, breaks the rules of town and country plan-
ning laws, or uses the land for a purpose that is prohibited by customary law, the plaintiff has
the right to revoke any grant of land, whether made before or after the Act's promulgation,
taking into account the provisions of s. 15 of the Act.

In terms of ownership of land, the current land tenure system has certainly transformed from
what it used to be traditionally. According to Botswana customary law, the concept of “own-
ership” of land or property did not exist; customary law was more concerned with people’s
obligations towards one another in respect of land than with the rights of people in property.
The relationships between people were more important than an individual’s ability to assert
his interests before everyone else, hence land could be said to have been largely for the com-
munity’s benefit. According to Schapera15, land rights among the Tswana tribes were enjoyed
by members of a particular tribe, which was under the leadership of a chief who was the
“head of the tribe”.
It has been seen that through the passage of time there have been a lot of changes and reforms
that have occurred concerning the general rights of individuals, however one aspect that is
standing somewhat firm is the native law principle of land being that of the community and
never that to be held in private and personal capacity of an individual. A case that showcases
this customary law principle of land ultimately being of the community’s benefit is the Nige-
rian case of Amodu Tijani V The Secretary16. The issue at hand was to calculate the amount
of compensation to be paid to the appellant (Head chief) who asserts that the Government ap-
propriated land for public use. According to the Public Lands Ordinance of 1903, “the Gover-
nor may take lands needed for public purposes in exchange for an estate in fee simple or
smaller estate upon payment of compensation that will be decided by the Colony Supreme
Court. All parties interested in the land or those who are permitted under the ordinance to sell
and covey it must be notified by the governor. Regardless of any native law or custom to the
contrary, the Head Chief of the native community whose land is needed may sell and transmit
it in fee simple. The question was whether the land in question is subject to any right titles
held by the chief, and if so, on what basis compensation should be determined. It was held
that the Chief only had a seigneurial right, which granted the holder ordinary land manage-
ment and control rights in accordance with native law including the right to collect the nomi-
nal rent or tribute paid by occupiers, and that compensation should be determined on that ba-
sis rather than on the basis of absolute ownership. When a Head Chief receives compensation
for any land that belongs to the native community, he is required to distribute it to the com-
munity’s members or apply it or use it for their advantage. This shows that even the money
the chief receives does not stand to benefit his pockets alone but it benefits the interest of the

15 Schapera, Handbook of Tswana Law

16 Amodu Tijani v The Secretary Southern Nigeria, [1921] AC 399

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community rather, hence this case shows us that land cannot be held in one’s private capacity
for his own benefit, land has to be for the benefit of everyone else in the community accord-
ing to customary law.   
Although already mentioned, great emphasize will be made on the Kabelo Matlho case. It is
one case that strengthened the notion of land belonging to the community rather than in indi-
vidual’s private and personal capacity. In this case an application to prevent the first respon-
dent from occupying a specific plot of property located inside the tribal region under its “ju-
risdiction” was made by the Kweneng Land Board to the High Court. The board argued that
S10(1) of the Constitution of Botswana which states that “All the rights and title to land in
each tribal area listed in the first column of the First Schedule shall vest in the land board set
out in relation to it in the second column of the schedule in trust for the benefit and advantage
of the tribesmen of that area and for the purpose of promoting the economic and social devel-
opment of all the peoples of Botswana”. Section 10(1) in essence gave it ownership rights
over the property in question, and that the first respondent lacked authority to occupy and de-
velop the property without a certificate duly issued by the board under sections 13 and 16 of
the same Act, hence he was trespassing and an eviction was requested. However, the first re-
spondent rejected the application on the ground that he had lawfully purchased the land from
the second respondent who had acquired the land through customary law inheritance before
the land boards were even created.
He contended that he held the land in his personal and private capacity as envisaged by the
now repealed S10(2) of the Constitution (“Nothing in this section shall have the effect of
vesting in a land board any land or right to water held by any person in his personal and pri-
vate capacity."), by virtue of this provision was beyond the “ownership” or control of the land
board. The Judge then held that property in customary law could now be privately owned by
individuals and could also be sold, his reasoning was that the customary law had evolved to
suit the needs and demands of the society and referred to Schapera as he stated that custom-
ary law is not static and it evolves with the community’s demands. However, it was then dis-
covered that the reasoning in the initial decision by the judge was off. The new stance/deci-
sion that was adapted was that tribal land could not be held in one’s private capacity, this was
because “a decision that the custom has changed must be proved by clear and satisfactory ev-
idence preferably by persons of known integrity who have no interest in the outcome of the
proceedings unlike in the Matlho case. The learned Judge Bizos J.A also stated that there was
no explanation on how the land he had acquired through customary law had suddenly came to
be in his “personal and private capacity” in terms of S10(2) of the Constitution, the customs
had clearly stated that the land belonged to the family and not to an individual. This reason-
ing by the learned Judge ultimately led to the repealing of S10(2) from the Constitution as it
was not in line with the principles of customary law, that land cannot be owned in one\’s per-
sonal capacity, but land was for the overall benefit of the community. 
In conclusion, land law in Botswana has

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BIBLIOGRAPHY

1. BOTSWANA CASES

· Kweneng Land Board v Kabelo Matlho 1992 BLR 292

· Kweneng Land Board v Daniel Selaki Civil 2004 (1) BLR 154 and 2004 (2)
BLR 62
· Kweneng Land Board v Mpofu Nong and Another 2005 (1) BLR 3
· Kweneng Land Board vs Bosele Syndicate and others 2001 (1) BLR 208
· Mphaphi Phumaphi vs Ngwato Land Board 2003 (2) BLR 33

2. OTHER CASES

· Amodu Tijani v The Secretary, Southern Nigeria, [1921] AC 399

3. STATUTES

· Tribal Land Act [Cap. 32:02]

· Town and Country Planning Act
· Constitution of Botswana 1966