Tribal Land Act, 2018 a headache for land owners
Acquisition of farming land in Botswana and affordability of valuation fees for big farms or ranches is a serious challenge to ordinary Batswana or unemployed youth as they cannot afford to pay the fees.
Thus far, the public awaits with bated breath the day when the Minister of Finance, Peggy Serame will fulfil the promise she made in the 2023/24 budget speech to review the Transfer Duty Act as a matter of urgency to address some of the implementation challenges that have been identified especially in transfer of property in tribal land including valuation fees.
Batswana are currently crying foul saying that the P3000 charged by the Ministry of Lands and Waters Affairs for transfer fee regardless of how the plot is transferred such as through inheritance or gift is just too high and unaffordable.
This week the Minister of Lands and Waters Affairs, Dr. Kefentse Mzwinila admitted being aware that valuation fees for big farms or ranches are high. However, he shifted the blame to the Ministry of Finance.
'Issues of transfer duty and valuations are requirements brought up by the Transfer Duty (Amendment) Act of 2019, which is administered by the Ministry of Finance through BURS”.
Mzwinila was responding to a question asked by the Member of Parliament for Palapye Onneetse Ramogapi who wanted the minister to state the rationale used to charge P3000.00 for transfer fee regardless of how the plot is transferred such as inheritance, or gift from parents.
He also wanted to know why there is no waiver on the P3000.00 transfer fee for destitute persons, vulnerable groups, youth or orphans.
Ramogapi asked if the Minister is aware that valuation fee for big farms or ranches is so huge that no ordinary Motswana or unemployed youth can manage to pay it, and if he is aware that people from Palapye are sent to as
far as Gaborone and Francistown when they want to register their plots under the in-community of property marriage regime especially the elderly who got married a long time ago.
Dr. Mzwinila responded that the Tribal Land Act Regulations of 2022 provide for service fees including, cost recovery measures on applications for transfer of land rights in tribal land, Transfer by sale or donation – P3000, including gift from parents, Transfer by inheritance is P200.
He said that the P3000 service fee is not charged for all transfers regardless of their nature.
Providing some background, Mzwinila said government has embarked on broad land sector reforms, especially on tribal land through the LAPCAS programme. Among the objectives of these reforms is to bring tribal land status and nature of rights in sync with other land tenures.
He said that the Botswana Land Policy of 2015 as revised in 2019 made pronouncements in the packaging of tribal land for allocation to citizens.
In particular, paragraph 53 calls for any piece of land to be planned and surveyed before allocation and be registered at the Deeds Registry.
However, tribal land continues to be allocated to citizens free of charge, but with improved value and certainty of rights, making it directly useable as security in accessing financial facilities.
He said the costs involved in planning, surveying and registration of land are all borne by the Government. Previously, an individual who wanted to register his or her property would be subjected to a costly process of
surveying and conveyancing the concerned plot but these costs are now assumed by government and individuals are issued with Secure Land Titles for free. He said the costs associated with this process far exceed P3000.
Further that, an individual will be allocated a piece of land by Land Boards at no cost.
'When the same individual transfers land rights over that piece of land to a third party, the Land Board would incur additional cost in administering the transfer of such rights and printing of new title.'
Mzwinila said as provided for in Section 31 and 32 of the Tribal Land Act of 2018, where land is repossessed from individuals for public purposes, the loss of land rights and developments are compensated at market rates as opposed to what obtained in the old Act.
This in itself is a demonstration of improvement to the value of tribal land, which Batswana continue to be allocated free of charge, he said.
'It is therefore proper that Government through Land Boards introduced some cost recovery measures for transfer of land, which are set at P3000 and P200 for sales/donations and inheritance respectively.
“Also, the re-enacted Tribal Land Act of 2018 allows for the transfer of undeveloped land which is a significant saving for Batswana,” Mzwinila said.
He said Botswana has since the approval of the Botswana Land Policy in 2015 practised land management that is inclusive and responsive to the needs of marginalised communities or disadvantaged members of the society.
This is achieved through affirmative action where an assessment is done by social welfare officials thereafter Land Boards assist according to recommendations of the assessment.
He said youth are normally accorded preferential treatment in allocation of land and where possible assisted, especially where they need facilitation to access their economic empowerment programmes.
“In this regard, youth are considered as other members of the society and are required to pay the P3000 transfer fee”.
However, his Ministry in consultation with the Ministry of Local Government and Rural Development do waive the requirement to pay the fees where a Social Welfare Assessment report has been provided recommending for a waiver.
He told Parliament that he is well aware of the challenges previously faced by the public where they had to travel from Palapye and other places to either Francistown or Gaborone Deeds Registry Offices to request for copies of their marital instruments.
Further stating that on commencement of Deeds Registry (Amendment) Act of 2016 and the re-enacted Tribal Land Act of 2017, which require re-registration of all tribal land to enable printing of all tribal grants on Secure Land Title, it was a requirement that a copy of marital instrument be lodged as evidence of the parties’ marital regime.
The requirement proved to be a challenge as most people especially the elderly who got married a long time ago did not have marital instruments.
In addition, Batswana had to travel from all over the country to request copies from Deeds Registry Offices which are only located in Gaborone and Francistown. Upon this realisation, the Registrar of Deeds issued a Circular
No.3 of 2022 to waive the requirement to lodge marital instruments when registering tribal land and advised that the issue of marital regime be accounted for in Affidavits.
The waiver came into force on the 26th September 2022.