The word land tenure on its own is a foreign concept which finds its origin from the

English common law. Before we dwell into how it found its way into Botswana, we
first must define word. Land tenure is defined as rights and institutions that prescribe
the use and access of land by people, it can further be defined as rule that a certain
piece of land is held and transacted which allows the proper utilisation of the land. 1
The word land is also described under s 2 of the Tribal Land Act2.Botswana land
tenure is made up of three branches which are state land, freehold land and tribal
land. When it comes to state land and freehold land the terminology possesses no
threats as it does for tribal land (customary land tenure). Basically, this essay will
highlight on the terminology that is being introduced and the effects there of the
terminology. The terminology is unlimited, but we shall cover only a few that being
expropriation, trustee, ownership, alienation, private and personal capacity, usufruct.

Usufruct: Usufructuary rights in customary land law refer to the privilege of using
and enjoying land and its resources without full ownership. These rights are often
accompanied by various conditions and limitations, which can pose a challenge for
regular individuals trying to grasp and navigate the particulars of this legal concept.
For instance, In the case of Kephe v Oletsetswe (1996)3, the court ruled that a
person with usufructuary rights could not transfer or lease those rights without
obtaining approval from the authority that owns the land. This decision emphasized
the constraints imposed on usufructuary rights, which may be confusing for non-legal
individuals to understand. Even though usufructuary rights hold significance within
Botswana's customary land law, they contribute to a system that can be challenging
for the average individual to navigate. These complexities arise from legal intricacies,
the absence of legal clarity, and restricted access to the justice system and the sway
of local authorities.

Trusteeship: Trusteeship, in a general sense, refers to a legal and fiduciary

relationship in which one party (the trustee) holds and manages assets or property
for the benefit of another party (the beneficiary or beneficiaries) 4. Trustees are
responsible for safeguarding and administering the assets in a manner that serves
the best interests of the beneficiaries while adhering to specific terms, conditions, or
1
Dickson Mzumara Officer in Charge, ECA-SA December 2003 LAND TENURE SYSTEMS AND SUSTAINABLE
DEVELOPMENT IN SOUTHERN AFRICA
2
Tribal Land Act (Cap) 32:02
3
Kephe v Oletsetswe (1996)
4
Democracy, equality and justice,2020
legal requirements. Trusteeship in the context of land tenure in Botswana refers to a
system where the government or a designated authority holds and manages land on
behalf of the community or a specific group of individual normally referred as pupil.
Initially, authority over land and its resources was entrusted in the Chief, who
administered it through village and ward headmen. None of the land was owned by
the Chief and he could not grant its use to anyone outside of his own tribal members.
He was a trustee as he only held usufructuary rights on behalf of the community. The
Amodu Tijani v Southern Nigeria (secretary), [1921] 2 A.C 399, demonstrates the
principle of trusteeship in that the owner could not seek compensation of the land as
he was never an owner, but controlled land on behalf of the beneficiaries in this case
being the community5. This situation was later modified by common law terminology
and principles as the authority of trusteeship was entirely transferred to the land
board through the tribal land act. Consequently, the Land Board now transfers and
assigns land without consideration for tribal affiliations.

Freehold: the right to full private ownership of land, free of any obligations to the
State other than payment of taxes and observance of land use controls imposed on
the land by the State in the public interest. The term freehold is used
interchangeably with private property or private land ownership. Expropriation: the
process through which the State acquires land or property for the purposes of re
development in the public interest, such as road construction, schools, hospitals, etc.
this is expatiated by the provisions of section 8 of the Constitution of Botswana
whereas section 9 of the same Constitution deals with deprivation6. This is a foreign
concept which emanated from Freehold tittle concept. It was birthed in this fashion, if
one holds a freehold title to land, it means he has ultimate control over such piece of
land, the lease runs up to 1000 years, he controls such land, the state does not have
any say on that land. Before we deal with the expropriation concept, we must first
know what gave birth to freehold titles. In the Context of Botswana, this tittle was
given to the likes of Tati Concession Limited Company (There is also Tati
Concessions Company Act which deals with how the land belonging to that company
is governed)7, Roman Catholics Church and The Queen of England in exchange
for protection. Also, the British took possession of the land claiming that it was not

5
Amodu Tijani v Southern Nigeria (secretary), [1921] 2 A.C 399
6
Botswana Constitution
7
Tati Concessions Act
alienated then. It is worthy of note that the three Chiefs (Khama, Sebele and
Bathoeng) were requested to demarcate the land for their communities, thus the land
not demarcated was considered to be not alienated. It was mostly through this
process that which the British owned such land on private capacity, hence have
ultimate control over such land. Now the question which came to rise was that, since
the land was given to the foreigners on agreement, now how will the Government
claim this land back without shed of blood, thus in a peaceful manner? This is where
the concept of land expropriation came in. In the case of Tshekedi Khama V High
Commissioner, it was agreed that the whites will be given land in exchange for
protection8. This buttresses the point raised above that such land ownership
emanated from agreements which were entered into by the three chiefs. Now since it
was agreed, the claim of such land by Government should also be through a
peaceful process, negotiations and agreements. In the context of Botswana, land
expropriation has been very ripe in the two developing capitals, viz, Gaborone and
Francistown. Due to pressing city developments and expansion, i.e., Francistown,
the Government is bound to negotiate with Tati Concession Limited Company which
holds most of the freehold land tittle around Francistown and Gerald Estate, The
Company controls both the surface and the mineral rights over such land. That as it
may be, when Gerald Estate in Francistown was established, the Government was
compelled to enter into negotiations with Tati Concession Company to buy land from
it, convert such land into Tribal land so that the Tati Land Board can administer that
land on behalf of the pupil, that is the practicality of land expropriation. Government
is faced with similar situation in Gaborone. That is to say, on the eastern part of
Gaborone, the land is held by Batlokwa Tribe in freehold tittle, on the southern side
of the city, the land is held by Bamalete Tribe and Roman Catholic Church in
freehold titles. This gives rise to the effect that, all the time when the Government
plans on the expansion of the city towards such mentioned parts, it has to sit down
with those freehold tittle holders, negotiate and probably settle for compensation.

IMPACT OF SUCH TERMS IN THE BOTSWANA TRIBAL LAND TUNER

The effect of Freehold concept and Land expropriation in Botswana affects

development of the country as those holding the freehold tittles are permitted by the

8
Tshekedi Khama v High Commissioner
law to decline compensation since they have ultimate ownership over such land.
This has risen to situations where the cities like Gaborone is not developing towards
south because on the southern part of it there lays a freehold land for Roman
Catholic Church and that of Bamalete. A Similar situation is faced in Francistown
where Tati Concession Company has got ultimate control over land around
Francistown. Thus, for Government to expand and develop Francistown, he will first
have to negotiate to buy land from Tati concession and convert it to tribal land where
it can now be allocated to citizens. As stated above, this is a very cumbersome
process which delays developments in the Country.

Also suffices to state that, under customary law, private ownership did not exist, the
land was a communal property controlled by the chief and as such could not be
alienated or sold. This is demonstrated in the Kweneng Land Board v Kabelo
Matlho9, Tijani case and Schapera writings. Private ownership means that anyone
can buy land and will do anything he wishes to do in that piece of land, it means
those with huge pocket can buy as much land as they wish or want. This gives birth
to scarcity of land since people will be in control of their own private land and by so
doing, they have ultimate control as to access of such land, this private ownership
renders support to the concept of land fragmentation which also curtails land
access and gives birth to land scarcity. Such limited access is normally
demonstrated when the Government wants to expand and develop certain areas like
ones mentioned earlier, Gerald Estate in Francistown (Tati Concessions Company)

Having discussed the land expropriation in detail above, it now suffices to state that
this foreign concept has given birth to collapse of so many African States economies.
Currently, South Africa is grappling with land expropriation, the whites own most of
the farms, land in Cape town and the city of Johannesburg in freehold tittles. Since
the Government cannot simply chase them away, it is bound to find a proper legal
route to negotiate and compensate the land owners so that land can be re availed.
This has kept the South African Government on toes, in particular, from the
opposition parties’ pressure, more especially the Economic Freedom Party led By
Julius Malema. Many are times, these negotiations come to a standstill due to the
land owners just unreasonably escalating the prices, some are just indifferent
towards the negotiation process therefore not acceding to Government requests.
9
Kweneng land Board v Kabelo Matlho
Another neighbouring country, Zimbabwe, has seen its economy collapsing when the
former President, Mugabe tried to exercise the land expropriation without
compensation, trying to forcefully retrieve farms from the white settlers in Zimbabwe
This brought the unrest in Zimbabwe, it also led to Zimbabwe being sanctioned from
world trade because it was considered that President Mugabe was contravening the
rights of citizenry, it finally brought the once decorated economy of Zimbabwe to its
knees.

As highlighted earlier on, in Botswana the land expropriation issue has also been the
mostly contested issue, in particular, in the recent Mosadi Seboko v The State, it
was held that Forest Hill land is held by Balete tribe in freehold tittle. The
Government wanted to expropriate their land which they held in free tittle through
their chiefs. The Government failed in casu because the Balete Tribe have a freehold
tittle over that land and they are not willing to share it but rather they prefer reserving
it for their future generations10. Although this is a victorious decision for Balete Tribe,
on the other hand, it is a delay for developments of the country and a denial to a right
of being allocated land by Government to any ordinary citizen of Botswana
anywhere, why, because the Balete Tribe want to reserve it for Balete Tribe instead
of the whole citizenry. This is one of the examples why this concept of private
ownership affected our customary land policy negatively. So, the introduction of this
concept has led to serious delays in erection of developments which can be used to
meet the economic reasons of the rapid changing and growing economy of
Botswana.

The other challenge which the courts are currently faced with because of this
concept is that, some of the land owned in free hold title, the owners have long
left ,abandoned Botswana and it is not easy to trace and locate them, this leads to
prolonged search for such persons, delay in developments and sometimes the
Government abandoning the exercise because its expensive, hence the cities
experiencing undeveloped pockets and this is not good for the face of the cities. This
is stressing our justice system or courts because they are the only forum which is
destined with the powers to determine land issues in Botswana.

The concept of trusteeship as discussed above brought some negative effects in the
Tribal Land tuner in the sense that in Botswana, such concept was introduced by the
10
Kgosi Mosadi Seboko v The State
British thinking that if followed properly it will yield positive results. Unfortunately, on
the ground or on the real world, the land boards are doing the antithesis of what the
original concept of Trust was meant for. In the context of Botswana, land boards
which are supposed to be trustees for the pupil, its members benefit more and the
pupil does not benefit. The concept of a trust is that a trustee never benefits from the
trust, now what is happening with our land boards is the total inverse of this concept.
It is worthy of note that such instances are rampant in the Kweneng land board as
demonstrated in the case law cited supra. Many are times that the members of the
land board enrich themselves by awarding themselves plots or land. This in the end
leaves us grappling with the scarcity of land. Now suffices to state that the customary
land tenure was not susceptible to such bad and corrupt practices because the chief
understood his role as a trustee holding the land for the community.

Conclusively, in the premises, suffices to state that the introduction of these foreign
terms in the customary tribal land tuner of African states, Botswana included, has
indeed created a very negative impact. Botswana courts and Government has been
grappling to make decisions which emanates from the difficulties created by
introduction of these concepts, more especially freehold tittles versus land
expropriation. This has led to stalled developments in our country, different opinions
in the court room decisions because British trained Judges think that these terms are
pertinent whereas locally trained judges feel that these are bad terms imposed in our
customary tenure, i.e., in the case of Kabelo Matlho v Kweneng Land Board
where the judges dissented. It also suffices to state that developments have stalled
mostly in the cities because of the private land right which were created by whites
when they started colonising Botswana and other African States. This has since left
the Government of Botswana facing this challenge more especially that the rights of
individuals are at stake, it is a constitutional matter which the Government must
observe at all times when making such huge decisions of land expropriation more
especially that Botswana is a subscriber of Bill of Rights.