ARRANGEMENT OF SECTIONS
SECTION
PART I
Preliminary
1. Short title
2. Interpretation
3. Establishment of deeds registry
4. Appointment of Registrar and Assistant Registrars
5. Duties of Registrar
6. Powers of Registrar
7. Seal of office
8. Registered deeds not to be cancelled except upon an order of court
9. Inspection of records and supply of information
10. Power to undertake conveyancing functions
11. Regulations
PART II
Registration
Registers
12. Registers
13. Continuation of existing registers
Deeds
14. When registration takes place
15. Deeds to follow sequence of their relative causes
16. Preparation of deeds by conveyancer
17. How real rights shall be transferred
17A. Transfer of customary rights
18. Provisions relating to married persons
PART III
Registration of Land
Transfer of Land
19. Manner of dealing with State land
19A. Manner of dealing with tribal land
20. Form and manner of execution of deeds of transfer
21. Transfer from joint estate
22. Transfer of two or more pieces of land by one deed
23. Transfer of undivided shares in land by one deed
24. Special provisions relating to transfer of undivided shares
25. Transfer to unascertained children
26. Deeds of partition transfer
27. Requisites where share in land partitioned is mortgaged
28. Requisites where share in land partitioned is subject to other rights
29. Effect of compliance with sections 27 and 28
30. Partition of land subject to fideicommissum
31. Registration of title by other than the ordinary procedure
Substituted Title Deeds
32. Certificate of registered title of undivided share
33. Certificate of registered title of aggregate share
34. Certificate of registered title of one or more properties held under one deed
35. Conditions governing the issue of certificates of registered title
36. Certificate of registered title taking place of lost or destroyed deed
37. Certificate of registered title to correct error in registration
38. Certificate of consolidated or amended title of two or more pieces of land
39. Certificate of amended title of one piece of land
40. Certificate of uniform title
41. Certificate of registered title of portion of a piece of land
Change of Title by Endorsement
42. Rectification of title by endorsement
43. Transfer or cession by means of endorsement
44. Endorsement of deeds where marriage dissolved by divorce
45. Cancellation of State Grant upon occurrence of specified event
PART IV
Townships and Settlements
46. Requirements in the case of subdivision of land
47. Transfer of township or portion thereof
PART V
Bonds
General Provisions
48. Execution of bonds
49. Requirements in case of bonds intended to secure future debts
50. Cession of bond securing future debts
51. Exclusion of general clause in mortgage bonds
52. No bond to be passed in favour of an agent
53. Requirements in case of bonds passed by or in favour of two or more persons
Rights of Mortgagees
54. Transfer of hypothecated immovable property
55. Substitution of debtor in respect of a bond
56. Returns by Master in connection with insolvent estates and further provisions relative to insolvent estates
57. Endorsement of bond after sale in execution
58. Consent of bondholder to registration of merger of rights of mortgagor
Notarial Bonds
59. Registration of notarial bonds
PART VI
Rights in Immovable Property
General Provisions
60. Restriction on registration of rights in immovable property
61. Certificates of registered real rights
Personal Servitudes
62. Registration of notarial deed creating personal servitude
63. Restriction on registration of personal servitude
64. Reservation of personal servitudes
65. Registration of lapse of personal servitude
66. Transfer and mortgage of land with personal servitude thereon or subject to a fideicommissum
Rights to Minerals
67. Separation from ownership of rights to minerals
68. Certificates of reservation of rights to minerals
69. Certificate of rights to minerals reserved by State
70. Exclusion of rights to minerals from partition of land
71. Undivided share of rights to minerals
Praedial Servitudes
72. Creation of praedial servitude by notarial deed
73. Conditions of registration of praedial servitudes
Leases
74. Registration of leases and sub-leases
75. Termination of registered lease
76. Cessions of leases and sub-leases
77. Hypothecation of leases and sub-leases
78. Notarial bonds hypothecating leases or sub-leases
79. Hypothecation of and settlement lease after exercise of option to purchase
Prospecting Contracts
80. Registration of prospecting contracts
81. Cancellation of registration on expiry of prospecting contract or failure to renew
PART VII
Antenuptial Contracts
82. Antenuptial contracts to be registered
83. Manner and time of registration of antenuptial contracts
84. Postnuptial execution of antenuptial agreement
PART VIII
Miscellaneous
85. Cancellation of registration on lapse of certain registered rights
86. Transfer and cession not to be passed as security
87. Taxes and transfer duty to be paid before transfer of land
88. Production of documents before transfer of land to a company
89. Registration of change of name
90. ...
91. Attestation of powers of attorney executed in Botswana
92. Execution of deeds by prospective owners
93. Notice to Registrar of application to court
94. Substituted copy of lost deed
95. Exemption from liability for acts or omissions in deeds registry
96. Formal defects
97. Special provisions relating to rights of occupation in the Ghanzi district
Proc. 36, 1960,
Law 29, 1961,
Law 27, 1963,
HMC Order 1, 1963,
L.N. 84, 1966,
Act 18, 1969,
Act 37, 1969,
Act 29, 1970,
Act 58, 1970,
Act 63, 1970,
Act 69, 1970,
Act 70, 1970,
Act 17, 1975,
Act 10, 1996,
Act 11, 2008,
Act 15, 2017,
S.I. 137, 2020.
An Act to consolidate and amend the laws in force in Botswana relating to the registration of deeds.
[Date of Commencement: 15th July, 1960]
PART I
Preliminary (ss 1-11)
This Act may be cited as the Deeds Registry Act.
In this Act, unless the context otherwise requires—
"court" means the High Court or any judge thereof;
"deeds registry" means the deeds registry established under section 3;
"diagram" means a diagram which has been signed by a surveyor, and which has been approved or certified by the Director or other officer empowered so to approve or certify a diagram on his behalf and includes a diagram or a copy thereof prepared in the Director's office and approved or certified as aforesaid, or a diagram which has, at any time prior to the commencement of this Act, been accepted for registration in the deeds registry or the Director's office;
"Director" means the Director of Surveys and Mapping;
[15 of 2017, s. 2(a) w.e.f. 20 November 2020.]
"general plan" has the same meaning assigned to it under Land Surveys Act;
[15 of 2017, s. 2(a) w.e.f. 20 November 2020.]
"immovable property" includes—
(a) a deed of customary land grant issued under the Tribal Land Act;
(b) any registered lease of rights to minerals; and
(c) any registered lease of land which, when entered into, was for a period of not less than 10 years or for the natural life of the lessee or any other person mentioned in the lease, or which is renewable from time to time at the will of the lessee indefinitely or for periods which together with the first period amount in all to not less than 10 years;
[15 of 2017, s. 2(a) w.e.f. 20 November 2020.]
"land" includes an undivided share in land;
"land board" has the same meaning assigned to it under the Tribal Land Act;
[15 of 2017, s. 2(b) w.e.f. 20 November 2020.]
"Master" means the Master or Assistant Master of the High Court;
"mortgage bond" means a bond attested by the Registrar specially hypothecating immovable property;
"notarial bond" means a bond attested by a notary public hypothecating movable property generally or specially;
"notarial deed" means a deed attested by a notary public, and does not include a document a signature to which is merely authenticated by a notary public, or a copy of a document which has been certified as correct by a notary public;
"notary public" means, in relation to any document, a person practising as such in the place where the document is executed;
"owner", in relation to immovable property, means a person registered as the owner or holder thereof and includes a land board established under the Tribal Land Act, the trustee in an insolvent state, the liquidator of a company which is an owner and the representative recognised by law of any owner who has died or who is a minor or of unsound mind or is otherwise under disability, where such trustee, liquidator or legal representative is acting within authority conferred on him by law;
[15 of 2017, s. 2(a) w.e.f. 20 November 2020.]
"prospecting contract" means a notarial deed whereby the owner of land from which the right to minerals had not been excluded, or the registered holder of the right to minerals in land, grants the right to prospect and seek for any mineral or minerals in the land, together with—
(a) the right to purchase the land or any portion thereof or to purchase the right to any such mineral or minerals: or
(b) the right to lease any right to any such mineral or minerals;
"real right" includes any right which becomes a real right upon registration;
"registered" means registered in the deeds registry;
"Registrar" means the Registrar of Deeds appointed under this Act;
"registry duplicate" means the counterpart or copy of a deed consisting of more than one copy which is filed or intended to be filed of record in the deeds registry;
"settlement" means a group of pieces of land or of subdivisions of a piece of land which are used or intended for use mainly for farming or horticulture, and includes a combination of such groups which is suitable for registration in one register;
"share", in relation to land, means undivided share;
"surveyor" means a land surveyor qualified to practise in terms of the Land Survey Act;
"township" has the same meaning assigned to it under the Local Government Act.
[15 of 2017, s. 2(a) w.e.f. 20 November 2020.]
3. Establishment of deeds registry
There shall be a deeds registry for Botswana situate at such place as the President may prescribe.
4. Appointment of Registrar and Assistant Registrars
The President, by notice in the Gazette, may appoint a Registrar of Deeds for Botswana and such Assistant Registrars as may be necessary who shall have the power to do any act or thing which may lawfully be done under this Act or any other law, by the Registrar of Deeds.
The Registrar shall, subject to the provisions of this Act—
(a) take charge of and preserve all records which were prior to the commencement of this Act, or may become after such date, records of the deeds registry;
(b) examine all deeds of other documents submitted to him for execution or registration, and after examination reject any such deed or other document the execution or registration of which is not permitted by this Act or by any other law, or to the execution or registration of which any other valid objection exists;
(c) register customary land grants, grants or leases of land lawfully issued by the Government or grants issued by any other competent authority and register amendments, renewals and cancellations of such leases, and releases of any part of the property leased;
[15 of 2017, s. 3 w.e.f. 20 November 2020.]
(d) attest or execute and register deeds of transfer of land, and execute and register certificates of title to land;
(e) attest and register mortgage bonds;
(f) register cessions (including cessions made as security) of registered mortgage bonds, and register cancellations of such cessions if made as security;
(g) register cancellations of registered mortgage bonds, releases of any part of the property hypothecated thereby or of all such property if the debt is further secured by a collateral bond, releases of any joint debtor or of any surety in respect of any such bond, the substitution of another person for a debtor in respect of any such bond, reductions of cover in respect of any such bond intended to secure future debts, and part payments of the capital amount due in respect of any such bond other than a bond intended to secure future debts;
(h) register waivers of preference in respect of registered mortgage bonds and notarial bonds in favour of other bonds, whether registered or about to be registered and waivers of preference in respect of registered notarial bonds in favour of other notarial bonds whether registered or about to be registered;
(i) register waivers of preference in respect of registered real rights in land, in favour of mortgage bonds, whether registered or about to be registered;
(j) register notarial bonds, and cancellations and cessions thereof (including cessions made as security) and cancellations of such cessions if made as security;
(k) register releases of any part of the property hypothecated by any registered notarial bond or of all such property if the debt is further secured by a collateral bond, releases of any joint debtor or of any surety in respect of any such bond, reductions of cover in respect of any such bond intended to secure future debts, and part payments in respect of the capital amount due in respect of any such bond other than a bond intended to secure future debts;
(l) register antenuptial contracts, and register such notarial deeds of donation (including a donation to be held in trust), and such other notarial deeds having reference to persons and property within the area served by the registry as are required or permitted by law to be registered;
(m) register grants or leases lawfully issued by the Government, of rights to minerals;
(n) register notarial cessions, leases or sub-leases of rights to minerals, notarial cessions of such registered leases or sub-leases, notarial cancellations of such leases or sub-leases, certificates of registration of such rights, and reservations of such rights made in grants or transfers of land;
(o) register on the title deeds of the land and of the rights to minerals affected, and in the relative registers, the issue of mijnpachtbrieven;
(p) register any servitude, whether personal or praedial, and record the modification or extinction of any registered servitude;
(q) register notarial leases, sub-leases, and cessions of leases or of sub-leases, of land, and notarial amendments of such leases and sub-leases, and notarial renewals and notarial cancellations of such leases and sub-leases and notarial releases of any part of the property leased;
(r) register notarial prospecting contracts and notarial cessions thereof and cancellations of such contracts;
(s) register any real right, not specifically referred to in this section, and any cession, modification or extinction of any such registered right;
(t) register against any registered bond any agreement entered into by the mortgagor and the holder of that bond, whereby any terms of that bond have been varied;
(u) register general plans of subdivisions of land, and record in the registers kept under this Act any conditions upon which the subdivisions have been laid out or established;
(v) register powers of attorney whereby the agents named therein are authorised to act generally for the principals granting such powers, or to carry out a series of acts or transactions registrable in the deeds registry, and register copies of such powers registered in any other deeds registry, which have been certified by the Registrar thereof;
(w) make, in connection with the registration of any deed or other document, or in compliance with the requirements of any law, such endorsements on any registered deed or other document as may be necessary to give effect to such registration or to the objects of such law;
(x) record all notices, returns, statements, or orders of court lodged with him in terms of any law;
(y) remove from his records with the approval of the Master and after the lapse of 10 years from the date of entry in such records, any entry made therein, whether before or after the commencement of this Act, in pursuance of the transmission to him of a notice of liquidation or an order of liquidation or sequestration or in pursuance of the lodging with him by the Master of a return under section 22 of the Administration of Estates Act (Cap. 31:01);
(z) make such entries in the registers kept under this Act and any other law as are necessary for the purpose of carrying out the provisions of this Act or such other law and of maintaining an efficient system of registration calculated to afford security of title and ready reference to any registered deed,
and generally the Registrar shall discharge all such duties as by law may or are to be discharged by the Registrar of Deeds or as are necessary to give effect to this Act.
(1) The Registrar shall have power—
(a) to require the production of proof upon affidavit or otherwise of any fact necessary to be established in connection with any matter or thing sought to be performed or effected in the registry;
(b) whenever it is in his opinion necessary or desirable to rectify in any deed or other document, registered or filed in the registry, an error in the name or the description of any person or property mentioned therein, or in the conditions affecting such property, to rectify the error:
(i) every person appearing from the deed or other document to be interested in the rectification has consented thereto in writing;
(ii) if any such person refused to consent thereto, the rectification may be made on the authority of an order of court;
(iii) if the error is common to two or more deeds or other documents, including any register in the registry, the error shall be rectified in all those deeds or other documents,
(iv) no such rectification shall be made if it would have the effect of transferring any right;
(c) to issue, under prescribed conditions, certified copies of deeds or other documents registered or filed in the registry;
(d) if in his opinion any deed or other document submitted to him has become illegible or unserviceable, to require that a certified copy thereof be obtained to take its place.
(2) The Registrar shall perform, in case of dispute, all the functions of a taxing officer of the court in relation to fees charged by conveyancers and notaries public for performing any acts which are required or permitted under this Act to be performed by conveyancers or notaries public in connection with deeds executed, registered or filed or intended to be executed, registered or filed in the deeds registry or in relation to fees charged by other legal practitioners in connection with the preliminary work necessary for the purpose of any such deed.
The Registrar shall have a seal of office which shall be affixed to all deeds executed or attested by him and to all copies of deeds issued by him to serve in lieu of the original deeds.
8. Registered deeds not to be cancelled except upon an order of court
Except as is otherwise provided in this Act or any other law, no registered deed of grant, deed of transfer, certificate of title or other deed conferring or conveying title to land, or any legal real right in land other than mortgage bond, and not cession of any registered bond made as security, shall be cancelled by the Registrar except upon an order of court:
Provided that for purposes of section 44 of Tribal Land Act, order of the court includes an order of the Land Tribunal established in terms of the Land Tribunal Act.
[15 of 2017, s. 3A w.e.f. 20 November 2020.]
9. Inspection of records and supply of information
The Registrar shall on such conditions as may be prescribed and upon payment of the prescribed fees, permit any member of the public to inspect the public registers and other public records in the registry, and to make copies of those records or extracts from those registers and to obtain such other information concerning deeds or other documents registered or filed in the registry as prior to the commencement of this Act, could, customarily, be made or obtained:
Provided that no such fee shall be payable in respect of any search or inspection made in the deeds registry—
(i) by a conveyancer or notary public in connection with any deed which he has been instructed to prepare, attest or lodge in the registry;
(ii) by any surveyor in connection with any survey which he has been instructed to perform; or
(iii) by any sheriff or messenger of a magistrates' court, or his deputy, in connection with the exercise of his duties as such.
10. Power to undertake conveyancing functions
Notwithstanding anything in this or any other law, whenever the State is a party to any transaction involving real rights in land the preparation and execution of any documents, notarial or otherwise, and the conveyance of any rights necessary to give effect to such transaction may be undertaken by the Attorney-General or any person appointed by him in writing.
(1) The Minister may make regulations prescribing—
[15 of 2017, s. 4 w.e.f. 20 November 2020.]
(a) the fees of office (if any) to be charged in respect of any act, matter or thing required or permitted to be done in or in relation to the deeds registry, including any report made to the court by the Registrar in connection with any application or action to which he is not a party;
(b) the fees and charges of conveyancers and notaries public in connection with the preparation, passing and registration of deeds or other documents registered or filed or intended for registration or filing in the deeds registry and the fees and charges of any other legal practitioners in connection with the preliminary work required for the purpose of any such deed or other document and the fees and charges in connection with the taxation of any such fees or charges;
(c) the manner and form in which any deed or other document required or permitted to be lodged, registered or filed in the deeds registry shall be prepared, lodged, executed, registered, filed or delivered;
(d) the manner and form in which endorsements or entries required by this Act or any other law to be made on registered deeds or other documents or in the registers shall be made thereon or therein;
(e) the particular documents which, when produced in the deeds registry, shall be attested or witnessed, and the manner in which any such document shall be attested or witnessed;
(f) areas (hereinafter referred to as "allotment areas") in which the registration of pieces of land shall be confined to a single register or set of registers;
(g) the method according to which pieces of land in any such allotment area shall be numbered;
(h) the manner and form in which pieces of land in allotment areas may be registered;
(i) the manner and form in which information which is required by law to be furnished to the Registrar shall be recorded in the deeds registry, the manner and form in which information permitted by law to be furnished by the Registrar to the public shall be furnished and the manner and form in which the identity of persons shall be established;
(j) the conditions upon which conveyancers, surveyors and other persons may conduct any search in the deeds registry, and the precautions which shall be taken to ensure preservation of the records from damage by improper handling or otherwise;
(k) the conditions under which copies of deeds and other documents registered in the deeds registry may be issued for judicial purposes, or purposes of information or in substitution of deeds or other documents which have been lost, destroyed, defaced or damaged and the conditions under which extracts from registers or from any documents registered or filed in the deeds registry may be furnished;
(l) the manner and form in which consent shall be signified to any cancellation, cession, part payment, release or amendment of or other registrable transaction affecting any bond or other document registered in the deeds registry;
(m) the conditions under which a copy of a power of attorney may be accepted by the Registrar in lieu of the original;
(n) the forms of deeds which shall be used in circumstances not provided for in this Act;
(o) any matter which under this Act is required or permitted to be prescribed.
(2) Any regulation made by the Minister in terms of subsection (1) shall be published in the Gazette at least one month before the date on which it is expressed to take effect.
[15 of 2017, s. 4 w.e.f. 20 November 2020.]
(3) In making any regulation under this section prescribing the fees and charges of conveyancers in connection with the preparation and passing of deeds, the Minister may prescribe separate fees for the preparation and the passing of deeds in the event of the deeds being prepared by one conveyancer and passed by another.
[15 of 2017, s. 4 w.e.f. 20 November 2020.]
PART II
Registration (ss 12-18)
(1) The Registrar shall design, prepare, open and keep such personal, property and other registers as may be necessary to carry out the provisions of this Act.
(2) Any such register in which any debts secured by bonds are entered shall be deemed to be a continuation of the debt registers kept in the registry prior to the commencement of this Act, and any entries made therein shall have the same effect in law as they would have had if they had been made in the said debt registers.
13. Continuation of existing registers
Until such time as any new register has been prepared and opened under the provisions of section 12 the Registrar shall continue to keep the corresponding register in use in the registry immediately prior to the commencement of this Act, and to make therein the like entries as were customarily made therein prior to such date.
14. When registration takes place
(1) Deeds executed or attested by the Registrar shall be deemed to be registered upon the affixing of the Registrar's signature thereto, and deeds, documents or powers of attorney lodged for registration shall be deemed to be registered when the deeds registry endorsement in respect of the registration thereof is signed:
Provided that no such deed, document or power which is one of a batch of interdependent deeds, documents or powers of attorney intended for registration together, shall be deemed to be registered until all the deeds, documents or powers of attorney or the registration endorsements in respect thereof, as the case may be, have been signed by the Registrar.
(2) If by inadvertence the Registrar's signature has not been affixed to a deed executed or attested by him, or to the registration endorsement in respect of the registration of a deed, document or power of attorney lodged for registration at the time at which the signature should have been affixed in the ordinary course, the Registrar may affix his signature thereto when the omission is discovered, and the deed, document or power of attorney shall thereupon be deemed to have been registered at the time aforesaid.
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