ARRANGEMENT OF SECTIONS
SECTION
PART I
Payment of Transfer Duty
1. Short title
1A. Interpretation
2. Imposition of transfer duty
3. Transactions involving immovable property
4. Costs and charges excluded from being reckoned as part of purchase price
5. Other sums payable by purchaser in addition to purchase price to be added to amount of purchase money
6. When duty is payable
7. [Repealed.]
8. When duty payable in cases of conditional sale
9. Liability to duty in cases of joint ownership
PART II
Receipts for Duty and Declarations
10. Payment of duty and effect of non-payment
11. Solemn declaration of sale
12. Solemn declaration of sale by agent
13. Solemn declaration in case of death or absence of seller or purchaser
PART III
Valuations for Payment of Transfer Duty
14. Valuation for purposes of computing duty
15. Valuation in which purchase price appears to be less than true value
16. Valuation of consideration other than money
17. Valuation after duty is paid
PART IV
Exemptions from, and Remission and Reduction of Transfer Duty
18. Remission of duty forbidden
19. Return of duty when sale declared void
20. Exemptions from obligation to pay duty
21. Remission of duty when sale rescinded
22. Partial remission when sale rescinded after part consideration has passed
23. Inquiry by Registrar of Deeds when exemption sought
24. Objections and appeals
PART V
Sales to Agents for Alleged Principals
25. Person bidding as an agent to disclose name of principal
26. Proceeding where bidder refuses to disclose name of principal
27. Proceeding where principal repudiates purchase
28. Application of section 27
29. Auctioneer forbidden to sell to undisclosed principal
30. Calculation of duty when property is taken over by agent bidder
31. Private sales to undisclosed principals
PART VI
Miscellaneous
32. Proceeding when fact of sale disputed
33. Re-sale when vendor fails to enforce contract of purchase
34. Form of declaration on re-sale
35. Payment of first transfer duty on second sale
36. Before whom declarations are to be made
Schedule - Forms
HCP of 10/6/1896,
Proc. 10, 1908,
Proc. 45, 1915,
Proc. 55, 1952,
Cap. 89, 1948,
Proc. 85, 1955,
Cap. 88, 1959,
Cap. 111, 1959,
HMC Order 1, 1963,
L.N. 55, 1965,
Law 20, 1966,
L.N. 84, 1966,
L.N. 94, 1966,
Act 10, 1976,
Act 32, 1978,
S.I. 49, 1999,
Act 6, 2003,
Act 24, 2019,
S.I. 18, 2020,
Act 40, 2022,
Act 5, 2023,
S.I. 57, 2023.
An Act to consolidate and amend the law relating to the payment of transfer duty.
[Date of Commencement: 10th July, 1891]
PART I
Payment of Transfer Duty (ss 1-9)
This Act may be cited as the Transfer Duty Act.
In this Act, unless the context otherwise requires—
"Board of Adjudicators" has the same meaning assigned to it under the Income Tax Act (Cap. 52:01); and
"Commissioner General" means the Commissioner General of the Botswana Unified Revenue Service as defined under the Botswana Unified Revenue Service Act (Cap. 53:03).
[24 of 2019, s. 2.]
2. Imposition of transfer duty
(1) Except as otherwise provided in this Act, a duty (hereinafter called "transfer duty") at the rate specified in subsection (4), shall be payable upon the purchase price or value of any immovable property, whether—
(a) freehold;
(b) held from Government upon quitrent or other leasehold tenure;
(c) sold or otherwise alienated or transferred; or
(d) held under a customary land grant in the form of—
(i) a registered lease which runs or is capable of running at the option of the lessee for 10 years or more, or
(ii) a registered grant, lease or concession of tribal land.
[24 of 2019, s. 3(a).]
(2) Transfer duty shall be payable by—
(a) the purchaser of any such property;
(b) every person becoming entitled to any such property by way of exchange, donation, legacy, testamentary or other inheritance or in any manner otherwise than through the medium or by means of purchase and sale;
(c) every person into whose name any such property registered in the Deeds Registry in the name of any other person is to be registered or transferred;
(d) every lessee who registers a lease of immovable property, which runs or is capable of running for a period of 50 years or their aggregate period; and
[24 of 2019, s. 3(b).]
(e) every person who registers a grant or concession including a tribal land lease or concession.
[24 of 2019, s. 3(b).]
(2A) Transfer duty shall not be chargeable on new tribal land and state land allocations.
[5 of 2023, s. 2(a).]
(3) The amount of transfer duty payable shall be calculated at the rates specified in subsection (4) on the purchase price paid for the property or on the value of the property sold, whichever is the greater, or on the value of the property alienated or otherwise transferred.
(4) The rate of transfer duty referred to in subsection (3) shall—
(a) in the case of any transaction involving any immovable property sold or alienated—
(i) where the person liable to pay the duty is a citizen of Botswana, be five per centum,
(ii) where the person liable to pay the duty is not a citizen of Botswana, be—
(aa) 10 per centum of the purchase price or value of the property up to P2 000 000, and
(bb) 15 per centum of the purchase price or value of the property in excess of P2 000 000, and
(iii) where the person liable to pay the duty is an entity which is neither a natural person nor a company, five per centum; and
(b) in the case of a customary land grant, be calculated on the aggregate rental payable or on the value of the immovable property leased, whichever is greater.
[5 of 2023, s. 2(b).]
(5) All persons acquiring the right to the limited enjoyment of property burdened with the entail of fidei-commissum, and all persons acquiring a life usufruct only in any property, shall (except as is otherwise provided in this Act) be chargeable with and liable to pay the duty applicable to the species of property in question, upon the value of their estates or interest in such property, to be calculated with reference to the value of the property and the duration or extent of their interest therein, and such duty shall be recoverable whether such persons do or do not seek to have their said estates or interest registered in their names in the Deeds Registry.
(6) For the purposes of this section—
"agricultural land" means any land, other than land in a township, used or capable of being used for the purposes of agriculture or horticulture or for breeding or keeping domestic animals, poultry or bees;
"citizen of Botswana" includes a company incorporated in Botswana and of which a majority of every class of equity shares is held by citizens of Botswana.
3. Transactions involving immovable property
(1) Where the effect of the issue of any shares in any company or a change in the beneficial ownership of any of the issued shares in any company is to pass the control of or entitlement to benefit from any immovable property from one person to another, such issue of shares or change in beneficial ownership shall constitute a transaction involving immovable property for the purposes of section 2.
[24 of 2019, s. 4.]
(2) Any company involved in the sale, alienation or transfer of shares from one person to another under subsection (1), shall duly inform the Commissioner General within a period of 30 days from the date of such transaction.
[24 of 2019, s. 4.]
(3) Any transaction which transfers shares in a company listed under the Botswana Stock Exchange limited, which has the effect of transferring the control of or entitlement to benefit from any immovable property shall be exempt from payment of transfer of duty.
[24 of 2019, s. 4.]
4. Costs and charges excluded from being reckoned as part of purchase price
Whenever any contract of sale of any immovable property liable to the payment of transfer duty is entered into, the purchaser of such property shall become liable to pay, over and above the sum payable to the seller, all or any of the following charges or expenses arising out of or connected with the said sale, that is to say—
(a) the cost of any survey of the said property made prior to, and for the purposes of, the said sale, and of any survey of such property which may be made after the sale, and the cost of all diagrams and subdivisions, and of the plan of the property exhibited at the time of the sale;
(b) the charge made by the auctioneer for the conditions of the said sale;
(c) the commission, if any, paid by the purchaser to any auctioneer, broker or agent, by or through whom the sale of the property may have been effected, not exceeding P2,5 per centum upon the amount of the purchase money;
(d) the auction duty payable upon the said sale;
(e) the transfer duty payable thereon;
(f) the cost of all deeds necessary for effecting transfer of such property, and of the mortgage deed, if any, and of all necessary stamps;
(g) the charges of conveyancers, and agents, incurred in effecting the transfer of the said property;
(h) the quitrent, if any, payable to Government upon the property sold;
(i) the quitrent, if any, which is payable upon the property being sold to any committee, consistory or any other body for religious, educational or charitable purposes, not being rent already due and in arrear at the time of the sale,
then such charges or expenses shall not be deemed or taken to form part of the purchase money of such property, so as to be liable to the payment of transfer duty:
Provided that whenever the purchaser agrees or undertakes to pay any such quitrent as is mentioned in paragraph (i), which is, at the time of the sale to such purchaser, already due and in arrear, the amount of such arrear rent shall in the solemn declarations to be made by the seller and the purchaser, respectively, be added to the sum paid or to be paid to the seller in stating the amount of purchase money upon which the transfer duty is to be paid.
In case the purchaser of any such property undertakes, agrees or in any manner becomes liable for, or in respect of, or in connection with the purchase by him of the said property, to pay to any person whomsoever any sum of money over and above the sum paid or to be paid to the seller, such sum not being one or more of the items of charges or expenses mentioned in section 4, then such sum must be added to the sum paid or to be paid to the seller in stating, in the solemn declaration to be made by the seller and purchaser respectively, the amount of purchase money upon which transfer duty is to be paid.
The transfer duty in respect of every sale, exchange, share, transfer or donation of any immovable property, shall be payable within 60 days from the date of assessment of the duty payable.
[24 of 2019, s. 5.]
[24 of 2019, s. 6.]
8. When duty payable in cases of conditional sale
Whenever any sale of immovable property is a conditional sale, then the said period or term of six months shall begin to be reckoned from the day on which such contract of sale was first entered into:
Provided that in case any such contract of sale is dissolved by reason of the happening of any dissolving condition after the payment of transfer duty, then upon proof given of such dissolution such duty shall be returned.
9. Liability to duty in cases of joint ownership
Whenever any such property as aforesaid is registered in the name of more than one person, as joint owners, all the said persons shall be deemed and taken, for the purpose of payment of duty upon or in respect of any sale or alienation by any of them to any other or others of them, to have equal shares and interest in the said property, unless the particular share or interest of each person is declared and set forth in the title deed or other instrument recorded in the Deeds Registry Office.
PART II
Receipts for Duty and Declarations (ss 10-13)
10. Payment of duty and effect of non-payment
(1) All duties and interest payable under the provisions of this Act shall be paid to the Commissioner General who shall give a receipt for the same.
[24 of 2019, s. 7.]
(2) Failure to pay the duty within the period provided under subsection (1) shall attract interest at the rate of one and half percent compounded monthly or a part of a month during which the contravention continues, but shall not exceed the amount of the unpaid duty.
[24 of 2019, s. 7.]
(3) The Commissioner General may remit the interest charged, where such penalty is due to an error by the Commissioner General.
[24 of 2019, s. 7.]
(4) The Commissioner General may upon failure by any person to pay the transfer duty, file with the Registrar of the High Court a statement of the amount due and payable which shall have an effect of a civil judgment for a liquid debt of the amount.
[24 of 2019, s. 7.]
(5) The High Court may on application by the Commissioner General, issue a writ of execution in respect of the statement filed in court to the person chargeable under subsection (4).
[24 of 2019, s. 7.]
(6) No writ of execution shall be issued by the court until 14 days after service of notice by the court to the person chargeable, informing him that the court shall issue such writ of execution, or where such person produces proof of payment to the satisfaction of the court.
[24 of 2019, s. 7.]
(7) Where the person chargeable to pay transfer duty under this Act dies or a company liable to pay transfer duty is wound up, the transfer duty payable shall be recovered in accordance with the provisions of the Income Tax Act.
[24 of 2019, s. 7.]
11. Solemn declaration of sale
The Registrar of Deeds shall not register a transfer or any change of name in respect of any immovable property, liable to payment of transfer duty under section 2 of the Act, unless—
(a) there is proof of payment from the Commissioner General; and
(b) a solemn declaration of sale by the seller and the purchaser is executed in Forms A and B set out in the Schedule.
[24 of 2019, s. 8.]
12. Solemn declaration of sale by agent
Whenever it appears to the Registrar of Deeds that any agent, auctioneer, broker or other person acting for or on behalf of any such seller or purchaser of any such property as aforesaid, has himself, in his said capacity, made and entered into the contract of sale or purchase, then it shall be lawful for the Registrar of Deeds to demand and receive the solemn declaration of such agent, auctioneer, broker or other person as aforesaid, either in lieu of, or in addition to, that of his principal, according as the Registrar of Deeds shall, under the circumstances of the case deem fit; and the solemn declaration to be taken as aforesaid shall, as nearly as may be, be in the form "C" in the Schedule and the Registrar of Deeds shall attach to the declaration a receipt issued by the Commissioner General.
[24 of 2019, s. 9.]
13. Solemn declaration in case of death or absence of seller or purchaser
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