LAW 202

Introduction
Historical Background to Botswana’s land tenure
system
R v Earl of Crew, Ex Parte Sekgome
The Bechuanaland Protectorate in South Africa was ‘under His Majesty’s dominion in the sense of
power and jurisdiction, but is not under his dominion in the sense of territorial dominion. A
protectorate is a foreign country whose governance is an act of state.

Land as a Human Right

S3 Constitution- Rights c
S8 Constitution- Protection of land
Universal Declaration of Human Rights ART 2- Everyone is
entitled to all the rights and freedoms set forth in this Declaration, without distinction of any
kind, such as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status. Furthermore, no distinction shall be made on the basis
of the political, jurisdictional or international status of the country or territory to which a
person belongs, whether it be independent, trust, non-self-governing or under any other
limitation of sovereignty.\

International Convention on Civil and Political Rights-

Article 2

1. Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in
the present Covenant, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth
or other status.

Article 3- The States Parties to the present Covenant undertake to ensure the equal
right of men and women to the enjoyment of all civil and political rights set forth in
the present Covenant.

International Convention on Economic, Social and

Cultural Rights
Art 2- 1. Each State Party to the present Covenant undertakes to take steps, individually
and through international assistance and co-operation, especially economic and technical, to
the maximum of its available resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.

2. The States Parties to the present Covenant undertake to guarantee that the rights
enunciated in the present Covenant will be exercised without discrimination of any kind as to
race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.

3. Developing countries, with due regard to human rights and their national economy, may
determine to what extent they would guarantee the economic rights recognized in the
present Covenant to non-nationals.

3. Fundamental rights and freedoms of the individual

Whereas every person in Botswana is entitled to the fundamental rights and
freedoms of the individual, that is to say, the right, whatever his race, place of
origin, political opinions, colour, creed or sex, but subject to respect for the rights
and freedoms of others and for the public interest to each and all of the following,
namely—
(a) life, liberty, security of the person and the protection of the law;
(b) freedom of conscience, of expression and of assembly and association;
and
(c) protection for the privacy of his home and other property and from
deprivation of property without compensation, the provisions of this Chapter shall
have effect for the purpose of affording protection to those rights and freedoms
subject to such limitations of that protection as are contained in those provisions,
being limitations designed to ensure that the enjoyment of the said rights and
freedoms by any individual does not prejudice the rights and freedoms of others
or the public interest

International Convention on
the Elimination of All Forms
of Racial Discrimination
Article 1

1. In this Convention, the term "racial discrimination" shall mean any distinction,
exclusion, restriction or preference based on race, colour, descent, or national or
ethnic origin which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any other field of public life.

Article 5

In compliance with the fundamental obligations laid down in article 2 of this Convention,
States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and
to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic
origin, to equality before the law, notably in the enjoyment of the following rights:

(a) The right to equal treatment before the tribunals and all other organs administering
justice;

(b) The right to security of person and protection by the State against violence or bodily
harm, whether inflicted by government officials or by any individual group or institution;
(c) Political rights, in particular the right to participate in elections-to vote and to stand for
election-on the basis of universal and equal suffrage, to take part in the Government as well
as in the conduct of public affairs at any level and to have equal access to public service;

(d) Other civil rights, in particular:

(i) The right to freedom of movement and residence within the border of the State;

(ii) The right to leave any country, including one's own, and to return to one's country;

(iii) The right to nationality;

(iv) The right to marriage and choice of spouse;

(v) The right to own property alone as well as in association with others;

(vi) The right to inherit;

(vii) The right to freedom of thought, conscience and religion;

(viii) The right to freedom of opinion and expression;

(ix) The right to freedom of peaceful assembly and association;

(e) Economic, social and cultural rights, in particular:

(i) The rights to work, to free choice of employment, to just and favourable conditions of
work, to protection against unemployment, to equal pay for equal work, to just and
favourable remuneration;

(ii) The right to form and join trade unions;

(iii) The right to housing;

(iv) The right to public health, medical care, social security and social services;

(v) The right to education and training;

(vi) The right to equal participation in cultural activities;

(f) The right of access to any place or service intended for use by the general public, such as
transport hotels, restaurants, cafes, theatres and parks.

Convention on the Elimination of All Forms of

Discrimination against Women New York
Article 2 States Parties condemn discrimination against women in all its forms, agree to
pursue by all appropriate means and without delay a policy of eliminating discrimination
against women and, to this end, undertake: (a) To embody the principle of the equality of
men and women in their national constitutions or other appropriate legislation if not yet
incorporated therein and to ensure, through law and other appropriate means, the practical
realization of this principle;
Article 14
2. States Parties shall take all appropriate measures to eliminate discrimination against
women in rural areas in order to ensure, on a basis of equality of men and women,
that they participate in and benefit from rural development and, in particular, shall
ensure to such women the right: (g) To have access to agricultural credit and loans,
marketing facilities, appropriate technology and equal treatment in land and agrarian
reform as well as in land resettlement schemes;
 Article 15
3. States Parties shall accord to women, in civil matters, a legal capacity identical to that
of men and the same opportunities to exercise that capacity. In particular, they shall
give women equal rights to conclude contracts and to administer property and shall
treat them equally in all stages of procedure in courts and tribunals.
Article 16
(c) The same rights and responsibilities during marriage and at its dissolution;
(h) The same rights for both spouses in respect of the ownership, acquisition, management,
administration, enjoyment and disposition of property, whether free of charge or for a
valuable consideration.

African Charter on Human and Peoples' Rights

Article14 The right to property shall be guaranteed. It may only be encroached upon in the
interest of public need or in the general interest of the community and in accordance with the
provisions of appropriate laws.

1. Article 21 All peoples shall freely dispose of their wealth and natural resources. This right
shall be exercised in the exclusive interest of the people. In no case shall a people be
deprived of it
2. In case of spoilation, the dispossessed people shall have the right to the lawful recovery
of its property as well as to an adequate compensation.
3. The free disposal of wealth and natural resources shall be exercised without prejudice to
the obligation of promoting international economic cooperation based on mutual respect,
equitable exchange and the principles of international law.
4. State Parties to the present Charter shall individually and collectively exercise the right to
free disposal of their wealth and natural resources with a view to strengthening African
Unity and solidarity.
5. State Parties to the present Charter shall undertake to eliminate all forms of foreign
exploitation particularly that practised by international monopolies so as to enable their
peoples to fully benefit from the advantages derived from their national resources.

SADC Protocol on Gender and Development (2008)

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AFRICAN COMMISSION ON HUMAN AND PEOPLES'

RIGHTS v. REPUBLIC OF KENYA
In this historic, public interest case, the African Court on Human and Peoples’ Rights found in favor of
the Ogiek indigenous community of Kenya, and held that the Kenyan government had violated seven
rights under the African Charter of Human and Peoples’ Rights. This decision significantly strengthens
progressive jurisprudence on land rights and indigenous people’s rights.
Date of the Ruling: 
May 26 2017
Forum: 
African Court on Human and Peoples’ Rights
Type of Forum: 
Regional
Summary: 
In October 2009, the Kenya Forestry Service issued an eviction notice requiring the Ogiek, a forest-
dwelling community and one of Kenya’s most marginalized indigenous peoples, to leave the Mau
Forest within 30 days. In November 2009, Ogiek Peoples’ Development Program (OPDP) joined by
Centre for Minority Rights Development (CEMIRIDE) and later by Minority Rights Group International
(MRGI), sent a communication to the African Commission on Human and Peoples’ Rights (Commission),
arguing that the eviction violated several provisions of the African Charter on Human and Peoples’
rights (Charter), including the right to property (Article 14), freedom from discrimination (Article 2),
right to life (Article 4), freedom of religion (Article 8), the right to culture (Article 17(2) and (3)), the right
to freely dispose of wealth and natural resources (Article 21), the right to development (Article 22), and
Article 1 (which obliges all member states of the Organization of African to uphold the rights
guaranteed by the Charter).
For decades the Ogiek have consistently confronted arbitrary forced evictions by the government from
their ancestral land in the Mau Forest. This pattern of violations has had a hugely negative impact on
their traditional lifestyle. The Ogiek depend on the forest for food, shelter, livelihood, and identity. The
October 2009 eviction notice has thus been characterized in the case as a ‘perpetuation of historical
injustices suffered by the Ogieks’ which had not been resolved by the Kenyan state, despite several
legal challenges in the domestic courts and advocacy with the Kenyan authorities.
For one of the first times in institutional history, the Commission referred the case to the African Court
on Human and Peoples’ Rights (Court) on the basis that there was evidence of serious or massive
human rights violations. On May 26, 2017, following an eight-year long process, the Court issued a
judgment upholding the land-related rights of the Ogiek people and finding violations of each of the
rights claimed except for the right to life.
On the right to property, the Court expressed that the Ogiek had a communal right to their ancestral
land, and that the expulsion of the Ogiek from this land against their will and without prior
consultation, violated their property rights guaranteed by the Charter, and read in light of the UN
Declaration of the Rights of Indigenous Peoples.
The Court also found that the government’s failure to recognize the Ogiek’s status as a distinct tribe, as
afforded to other similar groups, denied them the rights available to other tribes, and thus amounted
to discrimination. In referencing the work of the Commission through its Working Group on Indigenous
Populations/Communities in Africa, and the work of the UN Special Rapporteur on minority issues, the
Court analyzed various criteria to identify indigenous populations and determined that the Ogiek
community could be recognized as an indigenous population that is part of the Kenyan people, with a
particular status deserving of protection deriving from their vulnerability.
The Court stated in no uncertain terms that the preservation of the forest could not justify the lack of
recognition of the Ogiek's indigenous or tribal status nor the denial of the rights associated with that
status, and explicitly confirmed that the Ogiek could not be held responsible for the depletion of the
Mau Forest nor could it justify their eviction or the denial of access to their land to exercise their right to
culture.
The Court further determined that, because of the Ogiek’s connection between their land and their
ability to practice their religion freely, the evictions of the Ogiek from the Mau Forest constituted an
interference with the freedom to practice their religion. Given the Ogiek’s distinct ties between the land
and their cultural practice, their eviction from the Mau Forest also violated the right to culture. In
assessing the right to use and dispose of wealth and resources, such as land, the Court concluded that,
so far as it had already determined the Ogiek’s rights to their ancestral land and that those rights had
been violated, the eviction clearly violated the right to access and occupy the land. Finally, the Court
held that the Ogiek’s continuous evictions from the Mau Forest had significantly impacted their
economic, social, and cultural development, and therefore their right to development had also been
violated.
The Court ordered the government to take all appropriate measures within a reasonable timeframe to
remedy the violations. The Court declared that it would decide the issue of reparations separately, and
a decision is expected in 2018(link is external) or earlier
Enforcement of the Decision and Outcomes: 
The judgment orders the Kenyan government to inform the Court of all appropriate measures taken to
remedy violations within six months. The Executive Director of OPDP, Mr. Daniel Kobei, has urged(link
is external) the government to fully implement the decision. He and other leaders of the Ogiek
community are engaged with the government with regard to implementation of the judgment, with
guidance and support from MRGI.
Groups involved in the case: 
Three ESCR-Net members were involved in the case: The Ogiek Peoples’ Development Program
(OPDP), Minority Rights Group International, Center for Minority Rights Development (CEMIRIDE).
Significance of the Case: 
"For the Ogiek, this is history  in the making. The issue of Ogiek land rights has finally been heard and the
case has empowered them to feel relevant as indigenous people. I know that the case also gives hope to
other indigenous peoples." Daniel Kobei, Executive Director of OPDP
This landmark decision is the first time the Court, which has been functioning since 2006, has issued a
verdict in an indigenous peoples’ rights case. It is also the largest case the Court has ever decided both
in terms of number of claimants (35,000) and the number of claimed violations (8). Moreover, this case
was the Court's first public interest case and the first to have been decided following a substantive
hearing on the merits and referral from the Commission.
Lucy Claridge, the Legal Director of MRGI, who argued the case before the Court, notes that ‘This case is
of fundamental importance for indigenous peoples in Africa, and particularly in the context of the
continent-wide conflicts we are seeing between communities, sparked by pressures over land and
resources…Crucially the Court has recognised that the Ogiek - and therefore many other indigenous
peoples in Africa - have a leading role to play as guardians of local ecosystems, and in conserving and
protecting land and natural resources…’ These edicts will be of huge relevance to other forest
communities who have been evicted from their traditional lands in the name of conservation, including
for example the Sengwer in Western Kenya and the Batwa of Kahuzi-Biega National Park in DRC. In a
similar assessment, in a  2017 report(link is external)  (A/HRC/36/46), the UN Special Rapporteur on the
rights of indigenous peoples emphasized the correlation between secure indigenous land tenure and
positive conservation outcomes. The Special Rapporteur has  further said(link is
external)  that,  “Indigenous people’s rights need to be protected in the best way possible, not just for
them but because they are also able to provide solutions to many of the world’s problems from climate
change to biological diversity.”
As regards the issue of reparations, given that this case involves approximately 35,000 Ogiek and seven
violations spanning a period of over 40 years, reparations have the potential to be enormously
significant. Moreover, the Court is now presented with a further opportunity to provide a precedent
ruling remedying violations against indigenous peoples. (Email interview with Lucy Claride, MRGI,
September 7, 2017).
Finally, this case builds on the legacy of the Endorois case decided by the Commission in 2010, and
strengthens progressive jurisdiction on land-related rights and indigenous people’s rights.

Regulation of land and urban and rural planning

Cases
Buckingham CC V Callingham
 Held that a model village built to scale was a structure & as such subject to planning control.

Cheshire CC V Woodward
... having regard to the prepositions describing the operations as "in, on, over or under land",
the concept ... must be whether the physical character of the land has been changed by
operations in or on it, secondly whether the physical character of what is under the land have
been changed, for example by mining operations under the land, and, thirdly, whether the
physical characteristics of the air above the land have been changed by operations ... over the
land.' 

Cardiff Railing Authority v Guest Keen Baldwin

three criteria were identified for a building:

 size (with a building usually something that is constructed on site, rather than
being brought on site already made);

 permanence; and

 physical attachment to the ground.

Coleshill v Minister of Housing

The appellants acquired disused explosives stores buildings. The buildings were protected by
blast walls and embankments. The appellants removed the embankments and proposed
removing the blast walls. The Minister determined:

 that the removal of the embankments was an engineering operation; and

 that the removal of the blast walls was an alteration of the buildings and one that
would materially alter the external appearance of the buildings.

The House of Lords held that the questions before the Minister were largely matters of fact
and degree. Given the magnitude of the work of demolition of the embankments the Minister
could reasonably regard that as constituting an engineering operation.

Change of use
Application For planning purposes
Private law restrictions on land

Nuisance
AG V PYA Quarries
Facts
The defendants operated a quarry and used a blasting technique which emitted large
quantities of dust and noise, as well as causing vibrations which interfered with the
enjoyment of land for many individuals in the area.  The claimants sought an
injunction preventing the continuation of a public nuisance as a result.  The
defendant’s alleged that what was being carried out was in fact a private nuisance
which effected only those in the area and that they were therefore not bound by the
injunction prohibiting ‘public nuisance’ as a result.

Issues
Were the defendant’s actions a private or public nuisance?  What was the
distinguishing feature between a private and public nuisance and at which point did
a private nuisance become public in nature?

Decision/Outcome
The blasting operation was capable of constituting a public nuisance and the
injunction could be granted to prevent it.  Whilst it was difficult to precisely define
the difference between a public and a private nuisance, a public nuisance could be
one which materially affected the reasonable comfort or convenience of a class of
Her Majesty’s subjects.  What constitutes a ‘class’ of people within a neighbourhood
depends on the facts of any particular case and it is impossible to define the precise
number of individuals necessarily effected for them to be considered a ‘class’. 
Neither do all individuals within the class have to be personally affected by the
nuisance, as long as a representative cross section have been so effected.  A public
nuisance is so indiscriminate in its effect that it could not be reasonable to expect
one person to take proceedings on their own to stop it.  Instead, it was the
responsibility of the community at large, and that was what had occurred in this
case.  As such, the injunction was granted.

Allen v Gulf Oil refinery

The claimant brought an action in nuisance for the smell, noise and vibration created by an
oil refinery which had been constructed by the defendant on their land. The defendant’s
action in constructing the oil refinery was authorised by an Act of Parliament.

Held:

The defendant was not liable as it had a defence of statutory authority.

Lord Wilberforce:
"The respondent alleges a nuisance by smell, noise, vibration, etc. The facts regarding these
matters are for her to prove. It is then for the appellants to show, if they can, that it was
impossible to construct and operate a refinery upon the site conforming with Parliament's
intention, without creating the nuisance alleged, or at least a nuisance. Involved in this issue
would be the point discussed by Cumming Bruce LJ in the Court of Appeal, that the
establishment of an oil refinery, etc. was bound to involve some alteration of the
environment and so the standard of amenity and comfort which neighbouring occupiers
might expect. To the extent that the environment has been changed from that of a peaceful
unpolluted countryside to an industrial complex (as to which different standards apply
Sturges v. Bridgman (1879) 11 Ch.D.852) Parliament must be taken to have authorised it. So
far, I venture to think, the matter is not open to doubt. But in my opinion the statutory
authority extends beyond merely authorising change in the environment and an alteration
of standard. It confers immunity against proceedings for any nuisance which can be shown
(the burden of so showing being upon the appellants) to be the inevitable result of erecting
a refinery upon the site   not, I repeat, the existing refinery, but any refinery  however
carefully and with however great a regard for the interest of adjoining occupiers it is sited,
constructed and operated. To the extent and only to the extent that the actual nuisance (if
any) caused by the actual refinery and its operation exceeds that for which immunity is
conferred, the plaintiff has a remedy."

GBC V Midway
The defendant had obtained planning permission to turn a disused dockyard into a
commercial port operating 24 hours a day. Local residents brought an action in public
nuisance in relation to the noise created by Heavy Goods Vehicles throughout the night.
They were seeking an injunction to restrain the activities during the night. It was held that
where planning permission is given for a development or change of use, the question of
nuisance will thereafter fall to be decided by reference to a neighbourhood with that
development or use and not as it was previously. The claimant’s actions therefore failed.

Buckley J:

"Parliament has set up a statutory framework and delegated the task of balancing the
interests of the community against those of individuals and of holding the scales between
individuals, to the local planning authority. There is the right to object to any proposed
grant, provision for appeals and inquiries, and ultimately the minister decides. There is the
added safeguard of judicial review. If a planning authority grants permission for a particular
construction or use in its area it is almost certain that some local inhabitants will be
prejudiced in the quiet enjoyment of their properties. Can they defeat the scheme simply by
bringing an action in nuisance? If not, why not? It has been said, no doubt correctly, that
planning permission is not a licence to commit nuisance and that a planning authority has
no jurisdiction to authorise nuisance. However, a planning authority can, through its
development plans and decisions, alter the character of a neighbourhood. That may have
the effect of rendering innocent activities which prior to the change would have been an
actionable nuisance."

Trespass
Sesana and others v AG
6) Section 30 of the Wildlife Conservation and National Parks Act (Cap 38:01) recognized
the need for citizens, who were largely dependent on hunting and gathering, to be afforded
the opportunity to hunt for their sustenance, while at the same time providing for the
sustainability of wildlife and veld products. The regulations promulgated pursuant to the
section gave the director the discretion to issue licences where a need for them had been
determined. This discretion had to be exercised reasonably. The evidence showed that the
director had not exercised his discretion at all in refusing to issue licences to the
applicants. The government's refusal to issue special game licences to the applicants was
therefore unlawful.
(7) The simultaneous stoppage of the supply of food rations and the refusal to issue special
Botswana Law Reports 1964 to Date
game licences was tantamount to condemning the applicants remaining in the reserve to
death by starvation. This violated the applicants' constitutional right to life. The
government's refusal to issue special game licences to the applicants was therefore
unconstitutional. (Per Phumaphi and Dow JJ, Dibotelo J dissenting.)
(8) The Constitution guaranteed every person freedom of movement throughout
Botswana. It had not been proved that the people relocated were made aware of the
conditions of their relocation, more particularly, that they could not return to the land. The
applicants had been in the reserve lawfully as permanent residents and the government's
refusal to allow the applicants to enter the reserve unless they are issued with permits was
unlawful and unconstitutional. (Per Phumaphi and Dow JJ, Dibotelo J dissenting.)
Attorney-General v Dow [1992] B.L.R. 119 , CA (Full Bench) applied. Board of Regents of
State Colleges v Roth 408 US 564 (1972) and Meyer v The State of Nebraska 262 US 390
(1923) approved.

Expropriation of Freehold Land

Acquisition of Property Act
Constitution of Bots S3- rights
S8- Protection of Deprivation of land
Cases
AG V Western Trust
Find
Bruwer and Stumpher v President
The respondents challenged the locus standi of the applicants, contending that what had
been taken by the Government was the ranch, and to the extent applicable, the livestock in
it as well. Those properties belonged to the company, and if anybody was to object to the
taking, it was properly the ranching company through its board of directors. It was
contended that the applicants did not have an interest in the property within the meaning of
s 9 of the Act. The court held that the provisions of the Act had to be seen in the context of
s 8 of the Constitution which prohibited the deprivation of any person of his property, with
only one exception, namely that undertaken strictly for the public purposes stated in s
8(1)(a). Any compulsory taking, in addition to being for any one of the public purposes
mentioned, had to be carried out under the provisions of a law dealing with the compulsory
acquisition of property, and providing for the matters mentioned in s 8(1)(b)(i) and (ii). The
court held that the reference in s 9 of the Act to "any interest" had to be given the fullest
meaning possible and included an interest of a proprietary or pecuniary nature, which if not
Botswana Law Reports 1964 to Date
immediately held or claimed in the property taken, was nevertheless so associated with a
property, that what happened to the property had a material effect on the interest
concerned. The interest should not be too
Botswana Law Reports 1964 to Date
1997 BLR p479
remote but what was remote had to depend on the circumstances of each case. No
general rule could or should be devised that would take care of all situations. In the present
case the interest was not held or possessed by the applicants but was merely a claim. In
such a case the court would also consider whether the claim was a reasonable one or a
spurious one which had no prospect of succeeding. The court held that the applicant's
claim was based on reasonable grounds. The applicant's interest, although indirect, was
nevertheless a very real one and a threat to it by acquisition affected the applicants
substantially. Their interest was accordingly not too remote and was such an interest as
was covered by s 9 of the Act. The applicants accordingly had locus standi in the
proceedings.
The applicants contended that the notice was invalid as it included the acquisition of the
livestock and the Act did not authorise the public authority to acquire livestock. The
respondents conceded the argument and contended that that part of the notice should be
severed from the rest. The applicants argued however that the notice could not be severed
and that the inclusion of the illegal part tainted the legal part. The court held that an order
or notice of confiscation of property, like subsidiary legislation, which was admitted to go
beyond the powers granted in the enabling legislation to the delegate may be separated
and divided into good and bad parts with a view to holding the good parts as valid, provided
that in separating the good from the bad, the text of what remained was still grammatical
and coherent; and provided further that what remained as the good part, achieved the
substance and purpose of the enactment when it still contained the excised part and the
good part could stand and operate independently. The court held that the notice, on the
face of it, imposed intolerable hardship to the owners of the cattle that it was difficult to
imagine what was intended by the Act, allowed by s 8 of the Constitution, or even intended
by the President when he decided to take the ranch. If the notice was viewed on its terms
without speculation as to any possible arrangements concerning the cattle (as it ought to
be viewed) then on the date of take-over the owners had to yield up possession of the
ranch but would not be able to remove the approximately 15,000 head of cattle from it at or
before that date and hence lose possession and control of the cattle and could suffer loss.

President v Bruwer and Stumpher

1) section 9 of the Acquisition of Property Act allowed any
person holding or claiming any interest or title in any property described in an acquisition
notice who disputed the legality of the purported acquisition to apply to the High Court to
determine the dispute. The applicant under the section might not hold the land which was
the subject matter of the proceedings; he was not confined to holding the title or having an
interest in the land. It was sufficient if he only had a claim to the title or interest in the land.
In the instant case, on the claim that the respondents became entitled to call for the
completion of the contract between them and CDC, the transfer of the farm - Molopo
Ranch which by common cause, owns the property to be acquired, they must have a claim
to an interest which was sufficient to enable them to apply to the courts to look at the
validity of the acquisition.
(2) The Acquisition of Property Act empowered the Government to compulsorily acquire
immovable property only. Government was incompetent under the Act to acquire movable
property. A notice of intention to compulsory acquire, cattle which were movables, as well
as land, as the notice under consideration showed, was invalid, and would be set aside by
a court upon challenge unless the bad part could be severed from the good part in the
notice. In the instant case, the defective acquisition notice could be saved by the severance
of the words "including livestock" from the description of the property to be acquired. That
would leave the land as the only property affected by the notice.
Per AMISSAH P. There is one other matter which I think I must deal with before I finish. I do
not think it necessary for me to itemise the breadth and number of vituperative expressions
used by the respondents of the appellants' witnesses in this case. Anybody who cares to
read the first respondent's replying affidavit would be struck by its intemperance of
language. It is a sad day for any country when lawyers practising before its courts permit a
party or client, however aggrieved he may feel, to level gratuitous and baseless insults on
the highest officers of State who were doing no more than discharging their official duties,
Botswana Law Reports 1964 to Date
as they perceived them to be, not for themselves, but in the interest of the State. It is even
more distressing when the abuse is levelled in connection with matters not germane to the
real issues
Botswana Law Reports 1964 to Date
1998 BLR p88
before the court. I understand from leading counsel for the respondents that such conduct
is permissible because the officials vilified, are not Botswana and therefore insulting them
shows no disrespect to Botswana. Our courts are here to protect the supplicant who has
been illegally deprived of his rights by authority. But the processes of the courts should not
and cannot be allowed to be used as a licence for unjust showering of invective on holders
of public offices trying to perform their duties as they see fit. The replying affidavit in this
case is a disgrace. And I hope no lawyer thinks it proper, or an advancement of his case, to
put such a scurrilous affidavit before our courts in future. Decision of Nganunu J. (as he
then was) reported sub nom

FNB V Sars
Read more
Land reform and land policy reforms
Botswana Land Policy NO 4 Of 2015
4. Efforts to create a balancing effect and harmony between competing and sometimes
conflicting land uses have been done piecemeal through sectoral strategies, policies
and statutes. While this approach has hitherto delivered significant . success in land
administration, it is nevertheless necessary to come with new approaches to address
contemporary challenges, hence this "Botswana Land Policy" document.

Policy 2019 find

Access and control of land by women, youth and

indigenous minorities
Find rblp
Masusu v Masusu
https://www.law.cornell.edu/women-and-justice/
resource/masusu_v_masusu
Mmusi V Ramantele
https://en.wikipedia.org/wiki/
Mmusi_and_Others_v_Ramantele_and_Another
Sesana v AG
1) The applicants bore the burden of proof to show that the government did not
consult them before the services were terminated, which burden of proof had to be
discharged on a balance of probabilities.
(2) Legitimate expectation could arise where a promise had been made on behalf of a
Botswana Law Reports 1964 to Date
public authority that a benefit would be granted or allowed to continue or where there
existed a practice which a claimant could reasonable expect to continue. Mokokonyane v
Commander of Botswana Defence Force and Another [2000] 2 B.L.R. 102, CA; Mothusi v
The Attorney-General [1994] B.L.R. 246 , CA; Botswana Railways Workers' Union v
Botswana Railways Organisation [1991] B.L.R. 113 ; Peloewetse v The Permanent
Secretary to the President and Others [2000] 1 B.L.R. 79, CA considered.
(3) The evidence showed that the applicants were consulted before the decision to
terminate the services was made and that the applicants were aware that the provision of
services would be stopped or cut at some time in the future. The contention that the
termination by the government of the provision of basic and essential services was unlawful
and unconstitutional accordingly had no merit. The government was further not obliged to
restore the provision of services to the applicants. (Per Dibotelo and Phumaphi JJ, Dow J
dissenting.)
(4) The 'native rights' of the applicants had not been extinguished when the land they
inhabited was declared Crown land or when the reserve was created. The applicants had
occupied the land at the sufferance or passive consent of the government. Such
occupation had not been unlawful, especially when regard was had to the fact that both the
British and Botswana Governments had allowed the applicants to remain on and use
2006 (2) BLR p635
the land over many years. The occupation of the land in the settlements by the applicants
had therefore been lawful. Mabo and Others v Queensland (No. 2) [1992] B.L.R. , A 23;
Amodu Tijani v The Secretary, Southern Nigeria [1921] 2 AC 399, PC considered.
(5) It had not been proved that the applicants had fully understood and appreciated the
impact and consequences of their relocation to a settlement outside of the reserve,
particularly with regard to the compensation received and the right to return to the reserve.
As a result, their consent to relocate had been vitiated by the fact that they had not been
ad idem with those agents of the respondent who had facilitated the relocation. The
applicants had therefore been deprived of their lawful possession by the government
forcibly or wrongfully and without their consent. (Per Phumaphi and Dow JJ, Dibotelo J
dissenting.)
(6) Section 30 of the Wildlife Conservation and National Parks Act (Cap 38:01) recognized
the need for citizens, who were largely dependent on hunting and gathering, to be afforded
the opportunity to hunt for their sustenance, while at the same time providing for the
sustainability of wildlife and veld products. The regulations promulgated pursuant to the
section gave the director the discretion to issue licences where a need for them had been
determined. This discretion had to be exercised reasonably. The evidence showed that the
director had not exercised his discretion at all in refusing to issue licences to the
applicants. The government's refusal to issue special game licences to the applicants was
therefore unlawful.
(7) The simultaneous stoppage of the supply of food rations and the refusal to issue special
Botswana Law Reports 1964 to Date
game licences was tantamount to condemning the applicants remaining in the reserve to
death by starvation. This violated the applicants' constitutional right to life. The
government's refusal to issue special game licences to the applicants was therefore
unconstitutional. (Per Phumaphi and Dow JJ, Dibotelo J dissenting.)
(8) The Constitution guaranteed every person freedom of movement throughout
Botswana. It had not been proved that the people relocated were made aware of the
conditions of their relocation, more particularly, that they could not return to the land. The
applicants had been in the reserve lawfully as permanent residents and the government's
refusal to allow the applicants to enter the reserve unless they are issued with permits was
unlawful and unconstitutional. (Per Phumaphi and Dow JJ, Dibotelo J dissenting.)
Attorney-General v Dow [1992] B.L.R. 119 , CA (Full Bench) applied. Board of Regents of
State Colleges v Roth 408 US 564 (1972) and Meyer v The State of Nebraska 262 US 390
(1923) approved

Mabo and others v Queensland

http://www8.austlii.edu.au/cgi-bin/viewdoc/au/
cases/cth/HCA/1992/23.html

https://en.wikipedia.org/wiki/Mabo_v_Queensland_(No_2)

Control and Administration of State land

Reform and Regulation of Tribal Land

Cases
Tijani v Secretary of State
The controversy at issue in the case arose in 1913, when the colonial government of
Nigeria appropriated land in Apapa, pursuant to the Public Land (Acquisition) Ordinance 1903, in
order to give it to European merchants.[1][2] The land was occupied by the Oluwa family, under the
leadership of Amodu Tijani Oluwa.[2] Tijani argued before the Nigerian courts that he was owed
compensation for the expropriation, because the land belonged to him personally. [3] His claim
was unsuccessful.[3][4]

Privy Council[edit]
The Privy Council, reversing the judgments below, [5] held that although the territory of the Lagos
Colony had been ceded to the imperial Crown in 1861 under the Lagos Treaty of Cession[5] and
the Crown thereby acquired allodial title to the land, the Crown held only a "limited right of
administrative interference" with the land and was required to pay compensation for using it. [6]
[2]
 Tijani, as the leader of the community living on the land, held usufructuary rights on the
community's behalf.[7] The Privy Council's decision established that land rights at customary
law could be enforced by imperial courts.[3][8] Kent McNeil argues that Tijani follows
a presumption that property rights at private law continue in force despite a change
in sovereign control over territory.[9]
Ben Silverstein calls Tijani "perhaps the most important of the Privy Council's decisions on native
title".[10]

Kweneng Land Board v Mathlo

Held, dismissing the appeal (Bizos JA. dissenting).: customary law is not static but has
developed, and has continued to develop to meet the demands of modern society.
Whatever the customary law might have been in the past in the area concerned in this
case, the law had apparently developed to permit of private ownership of tribal lands. On
the evidence the second respondent had capacity to hold land in his personal and private
capacity and that he acquired title to the land in question in his personal and private
capacity. Consequently he had lawfully transferred it to the first respondent.

Kweneng Land Board v Selaki

First variant
(1) The court could not order the eviction of the second defendant as it could not
determine his rights of occupation separately from those of the first defendant: nor could it
restrain him from continuing with the non-conforming use of the land as that was not the
relief sought by the plaintiff.
(2) Obiter, that the second defendant's defence that he had been told by the first defendant
that he held the land in his private and personal capacity and that he was accordingly
Botswana Law Reports 1964 to Date
entitled to dispose of the land was hearsay. Furthermore there was no evidence to show
that customary law had changed to accommodate the demands of modern society. If there
was tribal land which was privately owned when s 10(2) was promulgated it was surprising
that such pre-existing ownership was not protected when s 10(2) was repealed. Even if
such private ownership of tribal land existed, the bald hearsay averment made by the
second defendant fell far short of proving that the land on which he had built was private
land.

Second Variant
Held: (1) The granting of summary judgment was a final judgment since it determined the
rights of parties and the only way to upset such a decision was on appeal. On the other
hand, the refusal of a summary judgment was a simple interlocutory order which was not
appealable, without leave, as it did not directly bear upon or dispose of the issues in the
action or irreparably anticipate or preclude any of the reliefs which had to be given at the
hearing.
Botswana Law Reports 1964 to Date
2004 (2) BLR p63
(2) The refusal to grant summary judgment was an interlocutory order not subject to appeal
save with the leave of the court by which the judgment was given, or with leave of the
Court of Appeal. Since no such leave had been granted, the matter was found not to be
properly before the court and struck off the roll.

Tlokweng Land board v Segakise

Kweneng Land Board v Nong

(1) Whilst stare decisis was a sound rule and previous decisions of the court should
not be lightly overruled by a later court, nevertheless the court should not hesitate to do so
where it was satisfied that the earlier decision, and particularly the ratio decidendi of it, was
incorrect. It would examine such earlier decision especially closely where there was a split
decision in the earlier court. It will also be more inclined to upset a previous decision where
it considers such to have been incorrect, or when it sat as a court of five judges and the
quorum of the court in the previous case was three.
(2) Whatever lay behind the object of the legislature in enacting s 10(2) it could not be
accepted that it intended to create a class of private ownership within the customary law. It
would fly in the face of all the tenets of customary law, which from all the authoritative text
writers specifically excluded it. Kweneng Land Board v Matlho [1992] B.L.R. 292, CA not
followed

Kweneng Land Board v Bosele syndicate

appeal: (1) the approach of the court a quo was essentially flawed. The
issue did not fall to be determined by "the circumstances of the case". The outcome of the
case had to be decided by a consideration of the legal rights of the parties, which was not a
question of circumstances.
Botswana Law Reports 1964 to Date
(2) Subject to certain qualifications and limitations specified therein, the Tribal Land Act
conferred on the appellants an absolute right of ownership of the tribal land in its area
(including the land in question) and by implication all powers incidental to the exercise of
the right of ownership.
(3) The erection of the fences on the land vested in the appellant amounted to an intrusion
on its territory and unless the respondents were acting within their legal rights, the appellant
was exercising the legitimate right of a landowner in seeking their removal.
(4) The appellant was fully entitled to refuse permission to the respondents to erect fences
on the land on the ground that the land in question was communal land. By erecting the
fences, the respondents were doing so without lawful right on land vested in the appellant
and the appellant was entitled to seek their removal.

Phumaphi v Ngwato Land Board

(1) The issue needing to be resolved was what rights the appellant had inherited from
his predecessor in title. Consideration had to be given to the type of right that was in law
given to the appellant by the respondent in the allocation of borehole rights.
(2) A borehole right was an interest in land in that the grantee was not granted the land
itself but the right to drill or sink a borehole at a particular location or point. Kwape v.
Botswana Law Reports 1964 to Date
Ngwaketse Land Board and Another (Misca 490/98) unreported applied.
(3) The land board was not bound to include measurements in certificates of borehole sites
as such measurements neither enhanced the rights of the holder nor diminished the
dominium of the land board. The right granted was not a piece of land but an interest to
sink a borehole at a certain defined point. The issue of measurements accordingly did not
arise.
(4) The right granted to the predecessor was a mere interest to sink a borehole at a defined
point in the land. Such right was granted independent of and without any accompanying
grant of a piece of land. Any expression of measurements in the certificate was merely
intended to help define the point where the interest was located and did not render any
rights to the
Botswana Law Reports 1964 to Date
2003 (2) BLR p34
grantee other than to sink the borehole at the defined site. No obligation fell on the
respondent to insert measurements in the appellant's certificate.

Segokotlo v Reokwaeng
Held: K and S were never handed over to the District Council. The Council was aware that
K existed and that the first respondent claimed rights thereto, as evidenced by their letter
to the first respondent in 1969. At the time when the other four boreholes were handed
over to the Council in 1970, the Council laid no claim of ownership to K or S. Even if the
Council had not been party to the agreement in 1968, it had been aware of it as the
Minister of Lands had been present at the time the agreement had been made. It can
accordingly only be assumed from the facts that the Council had acquiesced to the terms
of that agreement and waived any claim it may had had to ownership of K. Appellant
declared lawful owner of K

Quarries v Gamatele
Introduction to land board system of administration
S3-11 Tribal land act
Grant of Customary land rights
Part 3 Tribal Land Act
Part 3 Tribal Land Regulations
Kweneng Land Board v Rantutu
The plaintiff approached the court for an order that the defendant's rights in respect of a
field on which the second defendant had built a dwelling be cancelled and that possession
of the land be restored to the plaintiff. The defendant entered an appearance to defend
and the plaintiff applied for summary judgment. In opposition to the summary judgement
application, the defendant argued that the affidavit in support of the summary judgment
application had not been commissioned properly. In addition, the second defendant argued
that the plaintiff could not be entitled to an order for ejectment against the second
defendant when the first defendant and not the plaintiff was the possessor of the land from
which the second defendant was being evicted.
Held: (1) There were no specific forms or manner in which an oath or declaration had to be
administered or what had to appear on the document in as far as its attestation was
concerned. The challenged affidavit clearly indicated that the deponent's oath had been
taken by a commissioner of oaths in the form of an inspector in the Botswana police
service. The person who took the oath put his stamp of office on the document and it was
inscribed that he was a commissioner of oaths. The commissioning of the affidavit was
accordingly perfectly legitimate and valid because the person who commissioned it stated
that he was a commissioner of oaths and that he was an inspector of the police.
(2) There was no doubt that the land board could, subject to the provisions in the Tribal
Land Act (Cap 32:02) setting out the procedure for the cancellation of a grant to hold or use
land, cancel a grant of land to a person where there was a contravention of a restriction in
Botswana Law Reports 1964 to Date
respect of the use of that land.
(3) The matter involved substantial rights and property for the defendants. A judgment after
a full trial of the complicated arguments that appeared from the documents was the best
way to give guidance on the issues. Application for summary judgment rejected and case
ordered to go to trial.

Grant of Common law Rights

Tawana land board v kamanakao
(1) Section 17 of the Town and Country Planning Act (Cap 32:09) provided that no
zoning determination made under the section was valid or of legislative effect unless the
Minister had granted his approval thereto and given notice thereof in the Gazette. Nothing
presented to the court suggested that a land utilization plan had been approved by the
Minister or that the residents had been made aware of it. In refusing to allow the burial of
the late Chief Kamanakao at the cultural centre for the reason that such burial contravened
the general plan for the area, the applicant had sought to enforce what had not been
legislated or properly prescribed. The burial had accordingly not been unlawful per se.
(2) Although the land in question had been allocated to the respondent for use as a cultural
centre, no description existed of the nature of the cultural activities to be conducted there. It
was not in dispute that the late Chief Kamanakao had been the paramount chief of the
Wayeyi. The burial of the chief at the cultural centre had therefore been a cultural event for
the Wayeyi and not in breach of the agreement of lease.

Dispute, resolution and enforcement machinery

S13, 14, 27 AND 40 TRIBAL LAND ACT
Tawana land Board v Ker and Downey
The plaintiff applied by way of summary judgment for the ejectment of the defendant from
land it was occupying, such occupation allegedly being unlawful. The plaintiff alleged in its
particulars of claim that it was the sole authority vested with the powers to grant rights of
use of tribal land within the area. There was no allegation either of ownership or of the right
to possession.
Held: The sole power to grant rights of use did not per se mean that the possessor of that
power had either ownership or the right to possession of the land in question, let alone a
power to evict. Those powers insofar as they might exist had to be specifically alleged by
reference to the appropriate statutory provision or contractual term or relevant facts. The
particulars of claim relied upon by the applicant did not in their present form disclose a
cause of action and the application for summary judgment accordingly had to be dismissed.

Compulsory acquisition of tribal land

S32-33 tribal land act