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Home » News » Comments » Court of Appeal decision on novel land applications is a welcome relief

Court of Appeal decision on novel land applications is a welcome relief

Publishing Date : 10 July, 2017

Author :

PRIMA FACIE
 

It is not uncommon to meet many Batswana who have been frustrated by a Land Board in one way or the other. Common complaints are about,delays in processing land applications,double allocations,allegations of corrupt allocations to list a few.
 

Land Boards were established in terms of the Tribal Land Act of 1970 Cap 32:02. The Act came into effect on the 30th Of January 1970.Prior to the establishment of Land Boards, communal land (tribal land) was held and administered on behalf of the Tribe by a Chief.
 

The coming into effect of the Tribal Land Act thus vested land control and administration onto Land Boards. Section 10 of the Tribal Land Act is of great significance. It reads as follows “All 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 citizens of Botswana and for the purpose of promoting the economic and social development of all the peoples of Botswana”.
 

The effect of this section was to transfer all tribal land control to land Boards.The second effect of the Section was to ensure that every Motswana irrespective of their origin had a right to apply for tribal land in any part of the country.The third and significant effect of the Section was to dress the land board with the power to manage the land for the economic and social development of Botswana.
 

Surprisingly Land Boards are slow to give effect to this Section.The Tribal Land Act makes it easy for a Land Board to achieve this mandate.Section 11 of the Act gives the Land Board authority to consult with the District Council for purposes of the formulation of Policy which would give effect to its mandate.
 

The complaints about the failure of the Land Board to exercise its core function under section 10 were addressed as far back as 2001.Part of Justice Kirby’s speech in Ker & Downey(Botswana) V The Land Tribunal and Another 2001 volume 2 of the Botswana Law Reports is captured as follows  “The Tribal Land Act as a whole is in my judgment designed to promote the fair and equitable distribution of tribal land in Botswana. For example the land is "held in trust for the benefit and advantage of the   citizens of Botswana" (section 10), that is, for all the citizens of Botswana without exception, and customary land grants may be cancelled "to ensure the fair and just distribution of land among the citizens of Botswana" (section 15(c)). I hold that it was also entirely legitimate for the and board to have regard to and give due weight to the fact that the appellant was operating two other sites, while Heart and Soul had none. This also serves to "promote the economic and social development of all the peoples of Botswana" as required by section 10 of the Act.”
 

A common complaint arises out of Land Grants issued following a tender process.Applicants complain of over-reliance on technicalities.Interestingly Kirby addressed this issue in the following terms “The land board is given the discretion by law to grant leases over land which is vested in it. In doing so it is entitled to lay down conditions to be adhered to by persons wishing to apply for leases, whether by tender or otherwise. The Tender Procedures Document commences with the words: "The following are the procedures to be followed by companies wishing to tender for any of the lodge and campsites . . ."
 

It continues as follows:
 

  "This document shows the requirements for allocation, the documents prospective tenderers are required to submit and outlines the allocation process.")The General Guidelines referred to earlier, and supplied with the Tender Procedures, state than:     "The tendering process is subject to the terms, conditions and stipulations as contained in the 'Tendering Procedures ..' which forms part of the documentation issued. Tenderers that do not adhere to these terms, conditions and stipulations will be disqualified." Here it is clearly stated that in the case of the tenderer, non-compliance will be visited by disqualification. The drafters of the procedures intended that they should be obligatory insofar as the tenderer is concerned.
 

The position is entirely different with regard to the land board. The document is stated only to "outline the tender process". Moreover, the document must be interpreted as a whole, and clause 11 of the tender procedures provides that "The    appropriate Land Authority is not bound (the emphasis is mine) to accept the highest land rental offered, the highest scoring technical proposal or any technical proposal or tender . . ."If the land board is not bound to accept any tender, then it retains its unfettered discretion to accept or reject any tender after full consideration of its merits, and clause 8, with its almost formulaic approach can represent no  more than guidelines to be followed in appropriate circumstances.”
 

It is thus important for Land Boards to at all times consider the merits of an application before it.The Court of Appeal has recently expanded on the views expressed in the Ker & Downey case.In Ngwato Land Board V Philimon Autwetse CAHFT-000002-11, the Court emphasised the importance and relevance of Section 10 of the Act.

 

Writing for a unanimous bench made up of Lesetedi JA and Brand JA, Justice Gaongalelwe made the following profound remarks “In terms of the section a Land Board holds land in trust for the benefit and advantage of Batswana and for the purpose of promoting their economic and social development.Every Land Board must learn to accept that with development as envisaged by the section it would be called upon to deal with applications relating to commercial activities of a novel nature never dealt with in the past.


It must accept that with development the young generation would often desire to venture into commercial activities of an enterprising nature.It must always be borne in mind that gone are the days when commercial activities in rural areas and in small villages, in particular, were predominantly confined to general dealers' business,a bar or a bottle store.Failure to keep abreast with society’s ever changing needs would have the undesirable effect of frustrating the would be entrepreneurs who are capable of coming up with ideas that would promote the economic and social development in a particular locality”

 

With this judgement, we have no doubt that the Land Boards have been freed from the shackles of policy.This decision should assist Land Boards to fully achieve their core mandate under the Act.Over-reliance on technicalities and policy are in violation of Section 10 of the Tribal Land Act.The Minister might also have been saved all the trouble of having to explain himself had somebody at Kgatleng Land Board looked up Section 10 of the Tribal Land Act!

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