The tedious land registration system
Amendments to the various pieces of legislation intended to achieve broad land sector reform, have instead made the entire process very tedious, impossible and hard on individuals thereby negatively affecting businesses, Botswana Guardian can reveal.
An investigation into the matter by Botswana Guardian has uncovered that the problems in the land registration system are more deep cutting than seen on the surface or shared by the government.
The challenges to the whole process especially for land registration and transfers are troublesome than meets the eye. Land registration process takes too long and has caused many transactions to stall.
Delays have been reported in several areas, including Gaborone and Francistown. Some people have been waiting for years to receive title deeds for their property, which prevents them from being able to sell or develop their land.
The current land registration system is plagued with inefficiencies, delays and bottlenecks that are disadvantaging individuals and hindering the growth of the property sector especially the real estate market.
These delays and issues are having a significant impact on all parties involved in the market, from buyers and sellers to real estate agents and developers.
When delivering the 2023/24 budget speech last month Minister of Finance, Peggy Serame stated that there are plans 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.
Matters relating to Transfer Duty and valuations are requirements brought up by the Transfer Duty (Amendment) Act of 2019, while Tribal Land Act Regulations of 2022 provides for some service fees as cost recovery measures on applications for transfer of land rights in tribal land. This has been viewed as a demonstration of improvement to the value of tribal land.
Sources at BURS have revealed that from a staffing point of view both at BURS and at Deeds, with priority given to Tribal Land allocations, the staff are overwhelmed and as priority is given to Tribal Land allocations, commercial transactions and property transactions that contribute to the economy are being negatively affected.
Both BURS and DEEDS staff members are said to be working extremely hard to assist but they can’t cope with the priority given to Tribal Land and also have enough time to deal with other transactions.
The issue has been linked to a lack of resources and staff shortages in the land registration system. It has been established that the delays are also affecting the real estate market and causing frustration among buyers,
sellers, and investors.
These challenges are said to have now set in motion gaps for corruption as those who want their applications fast-tracked to jump the queue have started greasing the palms of some of the officials to have their way.
Sources say that if the matter is not attended to speedily, this would be another home for corruption after the procurement space.
Delays with BURS clearances
Botswana Unified Revenue Service (BURS) clearances are required for many business transactions. Delays in obtaining BURS clearances have been reported, which is causing frustration for businesses and individuals. Delays have been linked to technical issues with the BURS system and staff shortages. The delays according to sources are causing financial losses for businesses and individuals who are unable to complete their transactions in a timely manner. Some business deals have been cancelled due to the delays, thereby adversely affecting the economy of Botswana.
Delays and issues at the Land Boards
Land Boards are responsible for allocating land in Botswana, but delays have been reported in the process. There have been reports of corruption and favouritism in the land allocation process, which have led to some people waiting longer than others to receive land. The delays are affecting the ability of businesses and individuals to acquire land for development or investment. The issues have also caused tensions and conflicts in some communities. The delays and issues at the Land Boards are affecting the economy of Botswana by hindering growth and development.
Delays to process judgments at the High Court
Delays have also been reported in the High Court when processing judgments. Some people are said to have been waiting for years to receive a judgment in their case, which prevents them from moving forward with legal matters.
The delays have been linked to a backlog of cases and staff shortages. The delays are affecting the ability of businesses and individuals to resolve legal disputes in a timely manner. This publication established that delays with winding up of estates and registration of trusts have been reported at the Master's office
“Some people have been waiting for years to have their estates wound up or their trusts registered, which prevents them from being able to manage their assets”. The delays are linked to a lack of resources and staff shortages. The delays are affecting the ability of businesses and individuals to manage their assets in a timely manner.
The issue is causing frustration and financial losses for those waiting for their estates to be wound up or their trusts to be registered. It has been established that overall, the delays in these various areas are having a significant impact on the economy of Botswana by hindering growth and development, causing financial losses for businesses and individuals, and causing frustration and conflict in some communities.
Challenges facing the real estate market
The real estate market is a critical part of the economy, impacting employment, investment, and economic growth. Real estate transactions, such as construction, buying and selling of properties, provide employment opportunities and generate income. Property can also appreciate in value and provide rental income, serving as a valuable investment opportunity.
An observation of this market shows that the real estate market can serve as a barometer for the overall health of the economy, as changes in the market reflect shifts in consumer confidence and spending. This means, the real estate market is an essential driver of economic activity and can provide valuable insights into the overall economic situation.
The land registration process in Botswana is plagued by delays, with some transactions taking months or even years to complete. The registration process for real estate transactions has slowed down over the years according to sources. Prior to 2007, it took only three to four (3-4) days to complete the registration process.
However, the process is said to have become much slower over the years, with timelines increasing to seven (7) to 10 days after 2008 due to the introduction of BURS clearance letter to ensure VAT was being charged for property transactions.
Botswana Guardian has uncovered that this added a further 2-3 days to the process. In March 2020, the transfer duty assessment and payment was moved from the Registrar of Deeds to the Commissioner General (BURS), which further slowed down the process to 21-30 days.
“Prior to this, there was self-assessment of transfer duty which was paid at the Deeds Registry during the registration process. With the change in process, the assessment is now done at BURS and payment can only be done after assessment, so it takes 7-14 days to do the assessment, 3-7 days to get the clearance after payment and then we can lodge for transfer.
“In April 2022, amendments to the Tribal Land Act and the Deeds Registry Act introduced new changes, which included registering all customary land grants, allowing property owners to lodge their own transfer transactions, and requiring every tribal land transaction to have BURS assessment and clearances.
“With these changes, members of the public are now submitting applications, causing a huge backlog in the transfer duty department at BURS and the Deeds Registry,” a source at BURS told this publication adding that as a result, the registration process for tribal land transfers now takes 10-12 months.
A further look into the process shows that the consent process at the Land Board takes around 3-4 months, after which the Land Board submits the new lease to Deeds Registry for registration. After registration, the Deeds Registry sends the registered lease to the Land Board for collection by the Purchaser.
These delays in the land registration process have a significant impact on the real estate market, hindering economic growth, employment, and investment.
A real Estate Agent who spoke on anonymity pointed out that if the government were to turn all land registration offices, such as Deeds, Surveys and Mapping, and Land Boards into independent entities, it could have significant benefits for the efficiency and profitability of these organisations.
He argued that firstly, by being independent, these organisations would be able to make their own decisions about their operations and investments, without being subject to the bureaucratic and political pressures of the government.
This, he said, could enable them to operate more efficiently and flexibly, by focusing on the needs of their customers and the market, rather than being constrained by government policies and regulations.
“Secondly, independent land registration offices would be able to generate their own revenue streams, which could be reinvested in improving their services and infrastructure. For example, they could charge fees for their services, such as land registrations and surveys, and use the revenue generated to invest in more modern technology and equipment, which could help to increase their efficiency and accuracy.
“Thirdly, by being independent, these organisations would be able to attract and retain skilled professionals who are more motivated by opportunities for career advancement and performance-based incentives, rather than being tied to government pay scales and job security.
“Overall, turning land registration offices into independent entities could help to create a more efficient and profitable system, which could provide better services to customers, attract skilled professionals, and contribute to the growth and development of the economy”.
BURS and the Administration of Justice had not responded to questionnaires sent to them last week on the matter even though they had made an undertaking to respond before press time this week.
Unpacking the troubles with the whole process Principal Attorney at Sebego Attorneys, Tebogo Sebego stated that the new Tribal Land Act, which commenced in April 2020 has introduced very positive changes in the tribal land space particularly on the transfer of undeveloped land and secure title.
However, the Act required that all transfers of tribal land must obtain a BURS clearance, he added. According to Sebego this essentially required every transaction to be accompanied by a valuation report and a fixed fee of P3000 upon submission at the land board.
This process, he explained, has cloaked the BURS and now clearance certificates that used to take about 2-3 days take up to 6-8 weeks. He argued that this has brought the property economy into its knees and have affected the turnaround time for registration from 3 weeks to almost 3 months.
Sebego who has done a lot of conveyancing for his clients noted that it has also become very costly to transfer tribal land.
“One requires a minimum of P5000 just to do a simple transfer that used to cost P200 at most. The Valuation fees, the cost of completing the BURS form as well as land board administration of P3000 are the new added costs making it difficult for the poor and underprivileged to acquire land even through donation and inheritance.
“For people that we assist as conveyancers this has resulted in additional cost to the standard transfer charges. I however note that the proposed amendments to the Transfer Duty Act will mitigate some of the costs by introducing exemptions on the BURS clearance requirement in several transactions under the Tribal Land Act. I am yet to see whether the P3000 Land Board administration fee has been removed,” Sebogo said.
He explained that as for non-citizens, the amendment to the transfer duty introduced a 30 percent transfer duty from the 5 percent. This made it costly for non-citizens to invest in property, whether tribal land, state land, freehold or leasehold, he said adding that a large percentage of the market was negatively affected by this change. “We are pleased to note that the Minister will be presenting a Bill that seeks to reduce that to 10 percent (for purchases up to P2 Million) and 15 percent (for those above P2 Million for non-citizens).
“That is a good development particularly for the property market. I think more still needs to be done to capacitate the Deeds Registry Office to cope with the current changes. Their turnaround times have been greatly affected.
“The staff compliment remains the same but workloads have since significantly increased. This has taken a toll in the commercial space because land is used as security in a lot of commercial transactions.”
Land Rights Activist Gilbert Sesinyi maintains that the long and short of it is that the new Tribal Land Act under which the Secure Land Title (SLT) is to be issued is impossible of performance and incapable of use.
He said effectively the failure since April 2022 to produce SLT's means that there are no bonds being registered with banks for individual titles, transfers, subdivisions, consolidations, extensions and new allocations, hence no developments.
“The completion of allocations is in issuance of SLT's or Title. Therefore, an allocation without title is not an allocation as most naively believe it is.
“Over and above the existing bonds with banks have been nullified by repealing an Act of Parliament and replacing it with another that is not performing. So security of land tenure in Botswana has actually collapsed and there is no watchman,' said Sesinyi who is a land Surveyor by profession.
He argued that the enactment of the new Tribal Land Act was premature and the government apparatus was not in place to deliver Secure Land Titles.
The law stipulates that the Land Board will lodge with the Deeds Registrar the necessary documentation for issuance of Secure Land Title, ‘these amount to various specialised conveyancing transactions that the Land Board simply does not have the capacity to do’, he pointed out.
“Further to that the survey diagrams for such transactions need to be in a specific format for this purpose, which they are currently not. The LAPCAS records are also not fit for this purpose and need to be redone and registered at Deeds first before such transactions can be carried out.
“The whole Secure Land Title process is a mess and needs to be interdicted in the courts so that a transitional process is put in place, that will allow the old Act to be reinstated and the new Act to be properly phased in without this abrupt disruption on people’s lives and the issuance of titles.”
Potential solutions
Sources within the government enclave and in the private sector argue that as some of the potential solutions the government could invest in better technology infrastructure for land registration, such as introducing an online system for registering and tracking land titles. This would make the process more efficient and help to reduce the backlog of applications.
To also complement the technology Government could hire more staff to help process land registrations and provide additional resources, such as equipment and training, to help them do their jobs more effectively.
Sources at BURS are of the view that the government could consider simplifying the process of land registration to make it more accessible and easier to navigate for ordinary citizens.
This, they say, might involve reducing the number of steps involved or providing more guidance and support to those going through the process. Since there are no clear timelines for registration, officials at Deeds Department indicated that government could establish clear timelines for land registration and ensure that they are consistently adhered to.
This would give citizens a better sense of when they can expect their registration to be completed and help to prevent unnecessary delays.