LAND TRIBUNAL: SUBSIDIARY LEGISLATION
INDEX TO SUBSIDIARY LEGISLATION
(under section 25)
(5th August, 2024)
ARRANGEMENT OF REGULATIONS
REGULATION
PART 1
Preliminary
1. Citation
2. Interpretation
PART II
Tribunal Divisions and Officers
3. Land Tribunal divisions
4. Duties of Chief Land Tribunal President
5. Duties of Land Tribunal President
6. Duties of Land Tribunal member
7. Keeping of register
8. Return of service of Land Tribunal processes
PART lll
Proceedings
9. Lodgment of appeals
10. Application for enforcement of public body
11. Review of Proceedings
12. Application for condonation of late filing
13. Notice of opposition and reply
14. Failure to enter appearance to defend
15. Settlement of matter by arbitration, mediation or conciliation
16. Tariffs for costs of attorneys
17. Warrant for civil imprisonment
18. Contempt proceedings and default of payment of fines
19. Fees payable for services chargeable by the Land 'Tribunal
20. Role of Registrar on receipt of appeal, application and reviews
PART IV
Filing and Service of Land Tribunal Documents
21. Filing documents with Registrar
22. Hours for filing documents
23. Calculation of time period
24. Signing of documents
25. Service of documents on other parties
26. Service of documents by attachment
27. Substituted service
28. Proof of service of documents
PART V
Other Applications
29. Filing an application under this Part
30. Urgent application
31. Application for interim order
32. Interlocutory application
PART VI
Pre-hearing Procedure
33. Preparation of Land Tribunal roll
34. Notice of hearing
35. Heads of arguments
36. Pre-hearing conference
37. Production of documents
PART Vll
Conduct of Proceedings
38. Hearing procedure
39. Recusal of Land Tribunal President
40. Disclosure of interest
41. Rights of parties
42. Language to be used in Land Tribunal
43. Discovery of documents
44. Witnesses
45. Site visits
46. Withdrawals and postponements
47. Default judgment
48. Dismissal and striking-off
49. Judgment by consent or settlement orders
50. Remittals
51. Variation of orders
52. Land Tribunal's powers on conduct of proceedings
PART VIII
Judgments, Ratings and Orders
53. Writing of judgments
54. Delivery of judgments
55. Ex-tempore judgments
PART IX
Appeals Against Decisions of the Land Tribunal to the High Court
56. Role of the Registrar on receipt of notice of appeal
57. Application for stay of execution of Land Tribunal decision
PART X
General Provisions
58. Costs or expenses
59. Taxation of costs and expenses
60. Review on taxation
61. Record of proceedings
S.I. 86, 2024.
PART I
Preliminary
These Regulations may be cited as the Land Tribunal Regulations.
In these Regulations unless the context otherwise requires—
"appeal" means any appeal against a decision of a public body as defined under section 2 of the Act;
"application" means any matter lodged with the Land Tribunal other than an appeal;
"cause" includes any action, suit or other original proceeding between the parties;
"filing" means to file a document with the Registrar;
"interlocutory applications" means proceedings dealing with the rights of the parties in the interval between the commencement of the matter and its final determination;
"judgment" includes any decision, decree, determination, finding or order of the Land Tribunal or any court;
"Land Tribunal process" means any notice of appeal, notice of referral, notice of action or other notice by which proceedings in the Land Tribunal are initiated or a party is joined in the proceedings, or any order, subpoena, warrant or writ;
"Messenger of the Land Tribunal" includes a Deputy Sherriff and any member of the Botswana Police Service;
"notice" means a notice in writing;
"party" means any person who is a party to the proceedings;
"Registrar" has the same meaning assigned to It under the Act;
"review" means when a party applies to the Land Tribunal for review of the decision of a public body; and
"service" means to serve in accordance with regulation 22.
PART II
Tribunal Divisions and Officers
There is hereby established, divisions of the Land Tribunal as set out in the first column of Schedule 1.
4. Duties of Land Tribunal President
The Chief Land Tribunal President shall—
(a) coordinate adjudication of land disputes;
(b) adjudicate over land disputes;
(c) prepare and deliver judicial determinations such as orders of the Land Tribunal, rulings and judgments;
(d) monitor adherence to orders of superior courts;
(e) provide guidance in the management of the Land Tribunal operations;
(f) facilitate settlements made out of the Land Tribunal of cases and mediation; and
(g) sign records of proceedings.
5. Duties of Chief Land Tribunal President
The Land Tribunal President shall—
(a) adjudicate over land disputes;
(b) direct the proceedings of the Land Tribunal;
(c) give direction on questions or matters of law;
(d) prepare and deliver judicial determinations such as orders of the Land Tribunal, rulings and judgments;
(e) facilitate settlements made out of the Land Tribunal of cases and mediation; and
(f) sign records of proceedings.
6. Duties of land Tribunal member
(1) A Land Tribunal member shall—
(a) assist on adjudication over land disputes;
(b) provide technical input in the areas of land management, real estates, physical planning and related fields during hearing of appeals;
(c) provide necessary research for the purposes of judicial determination; and
(d) verify records of proceedings.
(2) The Land Tribunal President and members of the Land Tribunal shall subscribe to an oath for the execution of their duties as set out under Schedule VIII.
The Registrar shall in accordance with section 20(4)(c) keep a register containing—
(a) the case number of the appeal;
(b) the names of the parties and their attorneys or representatives, if any;
(c) the nature of the appeal;
(d) the date of filing an appeal and notice of appearance to defend, where any;
(e) the names of the panel presiding;
(f) the date of completion of the appeal;
(g) any subsequent proceedings and remarks; and
(h) the judicial determination.
8. Return of service of Land Tribunal Processes
The return of service of court bailiff and other officers authorised to serve Land Tribunal processes shall be in accordance with Form N as out under Schedule II.
PART III
Proceedings (Appeals, applications and reviews to the Land Tribunal (originating process))
(1) Any person who intends to appeal to the Land Tribunal against a decision of a public body shall, within a month from the date on which the appellant becomes aware of the decision of the public body, file a notice of appeal with the Registrar,
(2) A notice of appeal under subregulation (1) shall—
(a) be in Form A set out in Schedule II;
(b) be signed by a party instituting appeal or the authorised representative of the party;
(c) contain written reasons on the basis on which the appeal is lodged; and
(d) contain clear and concise particulars of the dispute and any material facts on which the matter is based.
(3) A party instituting proceedings shall be required to—
(a) pay a fee of as set out in Schedule IV;
(b) file a copy of the decision complained of;
(c) submit names, addresses and contact details of the parties;
(d) indicate the district and location of the disputed site;
(e) file rough sketch plan or drawings of the disputed site, if any;
(f) file proof of identification such as Omang, certificate of incorporation or Constitution;
(g) submit proof of title, if any;
(h) serve notice of appeal stamped by the Registrar or an officer authorised by the Registrar, and all other required documents as outlined above on the other parties to the dispute; and
(i) file any other relevant documents.
10. Application for enforcement of decision of public body
(1) A public body may apply to the Land Tribunal for enforcement of its decision by filing a notice of application with the Registrar and by serving notice of application on the other parties to the dispute.
(2) The provisions of regulation 35, shall apply with necessary modifications to the proceedings for the application for enforcement of a decision of a public body.
(1) A party seeking to review a decision of a public body, may apply for review of the decision by filing a notice of motion in Form B set out under Schedule II with the Registrar, and serve copies of the notice on the other parties to the dispute within one month from the date on which the party becomes aware of the decision,
(2) The grounds of review of a decision of a public body shall be on one or more of the following —
(a) lack of jurisdiction or ultra vires;
(b) lack of procedural fairness;
(c) lack of independence or acting under dictation;
(d) bias or the appearance of bias;
(e) inflexible application of policy;
(f) taking into account irrelevant considerations;
(g) failing to take into account relevant considerations;
(h) extraneous or improper purpose;
(i) error in law;
(f) lack of evidence to support the decision taken;
(k) bad faith; or
(l) unreasonableness,
(3) The provisions of regulation 35 shall apply with necessary modifications to the review of the proceedings,
12. Application for condonation of late filing
(1) A party who fails to file an appeal within a month of becoming aware of the decision in accordance with regulation 14, may apply for condonation of late filing.
(2) An application under subregulation (1), shall set out the grounds for condonation and state the following—
(a) the degree of lateness;
(b) the reason for the late filing;
(c) nature of the case;
(d) the prospects of success on the merits;
(e) any benefit or prejudice to either of the parties should condonation be granted or refused; and
(f) any other relevant factor.
13. Notice of opposition and reply
(1) A respondent may, on receipt of notice of appeal—
(a) file notice of opposition and grounds thereof as provided in Form C as set under Schedule II within a month of receipt of notice of appeal, application and review; and
(b) file all required documents provided under regulation 13(3).
(2) A party intending to reply to the respondent's notice of opposition shall file a reply within 14 days of receipt of respondent's grounds of opposition.
(3) A party shall not without leave of the Land Tribunal, file any further statements.
(4) The Land Tribunal shall if no leave is sought, close the pleadings seven days after the filing of the last statement under subregulations (1) and (2).
14. Failure to enter appearance to defend
Where a respondent fails to enter an appearance to respond in terms of section 11(3) of the Act, the Land Tribunal may exercise its discretion as provided for under section 8(2)(b) and (c) on how the matter shall proceed.
15. Settlement of matter by arbitration, mediation or conciliation
Where the Land Tribunal deems it necessary that the matter be settled by—
(a) arbitration, the matter shall be referred to arbitration in terms of section 16 of the Act; or
(b) other recognised forms of dispute resolution such as mediation and conciliation, the matter shall be referred to the appropriate forum:
Provided the parties to the dispute have agreed.
16. Tariffs for costs of attorneys
The Tariffs for costs of attorneys shall be as set out under Schedule III.
17. Warrant for civil imprisonment
(1) Where the Land Tribunal grants an order for personal attachment and imprisonment in terms of section 19 of the Act, the Registrar shall issue a committal warrant for civil imprisonment addressed to person authorised under section 22(1) and 23 of the Act and the keeper of a specified prison in terms of Form D as set out under Schedule II.
(2) A party may apply to the Land Tribunal for the suspension, variation or discharge of an order or warrant of civil imprisonment.
(3) Except where immunity is conferred by any law, a warrant of civil imprisonment may be executed at any place, at any hour on any day except on Sunday, Christmas Day and Good Friday.
(4) The Land Tribunal may order the release of a person from civil imprisonment where—
(a) the other party consents to the release; or
(b) there is compliance with the contravened Land Tribunal order which led to the imprisonment.
(5) The release from civil imprisonment under subregulation 4 shall be in Form E as set out under Schedule II.
18. Contempt proceedings and default of payment of fines
Where the Land Tribunal determines that a party or a representative of a public body or any other party to an appeal is liable to pay a fine and there is a default, the Land Tribunal may on its own accord institute contempt proceedings through a notice issued by the Registrar.
19. Fees payable for services chargeable by the Land Tribunal
The fees payable for chargeable services rendered by the Land Tribunal shall be as set out under Schedule IV.
20. Role of the Registrar on receipt of appeal, application and reviews
The Registrar shall on receipt of an appeal, application or review in terms of this Part enter the matter in the appropriate Land Tribunal register and allocate a case number thereof.
PART IV
Filing and Service of Land Tribunal Documents
21. Filing documents with Register
(1) A party shall file his or her documents with the Registrar by—
(a) handling in the original document at the office of the Registrar; or
(b) sending a copy to the Registrar by registered post or electronic transmission at the address listed in under Schedule V.
(2) Where the document is filed by registered post, the date of receipt of the document shall be deemed to be seven days after it was posted unless the contrary is proven.
22. Hours for filing of documents
(1) The Registrar's office shall be open every day for fiIing of documents from 0730 hours to 1245 hours and from 1345 hours to 1500 hours, from Monday to Friday, excluding public holidays.
(2) Not withstanding subregulation (1), documents may be filed outside the hours specified if the Registrar so directs.
(3) Notwithstanding subregulation 18(2), if a document is filed in any manner other than the physical filing of the document the date of fiIing shall be the date on which it is received.
23. Calculation of time period
(1) For the purpose of calculating any period of time in terms of these Regulations, a day means a calendar day, which shall be calculated by excluding the first day and including the last day,
(2) Where the last day, for the purposes of the calculation falls on a Saturday, Sunday or Public Holiday, the period ends on the next working day.
(1) The documents to be filed or served shall be signed by either the party to the dispute or a duly authorised representative,
(2) Where proceedings are jointly instituted or opposed by more than one person, documents may be signed by an authorised representative mandated by the other parties to sign documents on their behalf.
(3) A resolutions signed by the parties under subregulation (2), shall be attached to the notice of appeal, application or notice of opposition, as the case may be.
25. Service of documents on other parties
(1) Documents that are required to be served on the parties in terms of these Regulations may be served by a court bailiff of the Land Tribunal, either party or any person authorised to serve processes of the Land Tribunal in terms of section 23 of the Act.
(2) A document shall be served on the other party in any one of the following ways—
(a) by handing the document to—
(i) the party or authorised representative, or
(ii) a person who is 16 years old or above at the time of service, in charge of the party's place of residence, business or place of employment.
(b) by leaving the document at an address chosen or at any premises in accordance with regulation 22, or
(c) by sending the document to the person by—
(i) registered post to the last known address or chosen address, or
(ii) fax to that person's fax number or any other fax number chosen by the person to receive service.
(3) A document may be served—
(a) on a company or other juristic person by handing the document to a responsible employee of the company or juristic person at its registered office or its principal place of business within Botswana or its main place of business within the district in which the dispute arose;
(b) on a partnership, firm or voluntary association by handing the document to—
(i) a responsible employee or official at the place of business of the partnership, firm or voluntary association,
(ii) a partner of the partnership if the partnership has no place of business.
(iii) the owner of the firm if the firm has no place of business, or
(iv) the chairperson, secretary or member of the controlling body of the association if the association has no place of business;
(c) on a public body, by handing the document to the Town City Clerk, Council Secretary, Land Board Secretary, or any official acting on their behalf;
(d) on a statutory body, by handing the documents, to any person authorised by its founding statute to institute or defend Land Tribunal proceedings on behalf of the body or any other person authorised by the body to do so;
(e) on a public officer by handing it to that officer;
(f) on the State by handing the document to the office of the Attorney General; or
(g) by any other means authorised by the Land Tribunal.
26. Service of documents by attachments
Where any person referred to under regulation 20 is not willing to accept service, the document may be served by attaching it—
(a) to the main door or gate of the premises concerned; or
(b) to any place on or near the premises to which the public has access and the person being served is likely to see it.
The Land Tribunal may, where it is not possible to locate a party for the purpose of serving a document, on application, order substituted service to be effected on that party in accordance with Form F set out under Schedule II.
28. Proof of service of document
A party shall prove that a document has been served by filing affidavit or return of service by a person authorised to serve the document, stating the manner in which the service was effected in accordance with Form G set out under Schedule II.
PART V
Other Applications
29. Filing an application under this Part
An application in terms of this Part may be brought in terms of notice of motion in Form B set out under Schedule II.
(1) This regulation shall apply to an application for the determination of a dispute on urgency basis.
(2) An urgent application shall be brought by way of written notice of motion to be filed with the Registrar and served on other parties.
(3) A notice of motion in terms of subregulation (2), shall contain—
(a) the material facts on which the application is based shall be written in a founding affidavit in Form H as set out in Schedule II;
(b) the circumstances why the matter is urgent shall be written in the certificate of urgency in Form I as set out in Schedule II;
(c) the relief sought shall written in a draft order in Form J as set out in Schedule II;
(d) the names, description and addresses of the parties; and
(e) a schedule listing any documents that may be material and relevant to the application.
(4) A party opposing an application shall deliver a notice of opposition within seven days of the service of the application to the Registrar and other party.
(5) A notice of opposition shall—
(a) contain a reply to the facts and legal issues stated in the application; and
(b) state any other relevant material facts and legal issues in sufficient detail to permit the applicant to reply.
(6) An applicant may file and serve a replying affidavit within seven days of the receipt of the notice of opposition.
31. Application for interim order
(1) A party bringing an application under regulation 27 may include in the notice of motion an application for an interim order, on grounds of urgency.
(2) An application for an interim order shall—
(a) set out, in the notice of motion, the time, date and place fixed by the Registrar for the hearing of the application for an interim order; and
(b) in the affidavit contemplated in regulation 27(2) state why the dispute is so urgent that it cannot wait to be determined in the ordinary course.
(3) An applicant shall serve a copy of the application, together with the Registrar's directions, on the respondent as soon as the Registrar has allocated a date, time and place for the hearing.
(4) A party bringing the application shall satisfy the Land Tribunal when the application is heard that a copy of the application has been served on the respondent or that sufficient and adequate notice of the content of the application was brought to that party's attention by other means.
(5) The Land Tribunal shall deal with an application for interim order in any manner it considers appropriate, and may take an order as to costs.
(6) A respondent may anticipate the return date of an interim order on not less than 48 hours' notice to the applicant and the Registrar unless otherwise ordered.
(1) This regulation shall apply to—
(a) an application for condonation, joinder, substitution, exception, variation or rescission; or
(b) any other preliminary or interlocutory application or application incidental to any proceedings pending before the Land Tribunal.
(2) An interlocutory application shall be brought by way of written notice to be filed with the Registrar and served on other parties.
(3) A notice in terms of subregulation (2), shall contain—
(a) the names, description and addresses of the parties;
(b) the material facts on which the application is based;
(e) the reasons why the interlocutory application should succeed;
(d) the relief sought; and
(e) a schedule listing any documents that may be material and relevant to the application.
(4) Any party intending to oppose the application shall, within seven days of being served the application, serve notice of opposition to the Registrar and the other party.
(5) A notice of opposition shall—
(i) contain a reply to the facts and legal issues stated in the application, and
(ii) state any other relevant material facts and legal issues in sufficient detail to permit the applicant to reply.
(6) An applicant may file and serve a replying affidavit within seven days of the receipt of the notice of opposition.
PART VI
Pre-hearing Procedure
33. Preparation of Land Tribunal roll
(1) The Registrar shall prepare a Land Tribunal roll prior to issuance of a notice hearing.
(2) The Registrar may consult with the parties or their representatives for suitable dates of a hearing before preparation of the Land Tribunal roll.
(3) The Land Tribunal roll shall contain—
(a) full names of the parties or their representatives; if any;
(b) contact details;
(c) the subject of appeal; and
(d) date, time and place of hearing.
(1) A notice of hearing shall be signed and issued by the Registrar.
(2) A notice of hearing shall contain—
(a) full names of parties or their representatives if any;
(b) the subject of appeal;
(c) the date, place and time of hearing;
(d) the date when parties are to submit any outstanding documents or information; and
(e) any other relevant information.
(3) The Registrar shall cause the notice of hearing to be served on all the parties 21 days before the date of hearing.
(1) The Land Tribunal may at any time call upon the parties to deliver heads of argument on the main points that they intend to argue within a time as directed by the Land Tribunal.
(2) The heads of argument shall include—
(a) a chronology of the material facts; and
(b) a list of authorities referred to in the heads of argument.
(1) The parties shall hold a pre-hearing conference to deal with matters if directed by the Land Tribunal.
(2) The parties my jointly request the Registrar to call or chair the pre-hearing conference.
(3) The parties may at their own instance conduct a pre-hearing conference.
(4) At a pre-hearing conference, the parties may settle the dispute, or agree on the following—
(a) the identification of, and method of resolving, any preliminary points;
(b) facts that are agreed;
(c) facts that are in dispute;
(d) the issues for determination by the Land Tribunal;
(e) the relief sought;
(f) the discovery and exchange of documents and the manner in which such documentary evidence is to be dealt with;
(g) admissibility of affidavits;
(h) the need to call witnesses, identifications and number thereof, including expert witnesses, and the recording and exchange of their statements;
(i) need for site visits;
(j) the need for special interpretation such as sign language;
(k) any steps to be taken which may shorten the hearing or minimise costs; or
(l) estimated time required for the hearing.
(5) The parties may draw up and sign minutes of the pre-hearing conference and cause a copy to be filed with the Registrar at least three days before the date of the hearing.
(1) A party shall afford other parties a reasonable opportunity before the hearing to inspect and make copies of the documents he or she intends to use at the hearing.
(2) A party who reasonably believes that the other party is in possession of or has control over relevant documents that have not been listed, may apply to Land Tribunal for an appropriate order.
(3) If no pre-hearing conference is held in terms of regulation 33, the parties shall—
(a) notify each other of the documents that they intend to use at the hearing; and
(b) deliver to each other clean and legible copies of the identified documents that are their possession or under their control.
(4) The notice and delivery referred to in subregulation (3), shall take place not less than seven days before hearing.
(5) The Registrar may direct the parties to file a paginated bundle of documents to be used during the hearing.
(6) The Land Tribunal may make any appropriate order, including barring a party from using a document, if it fails to comply with the provisions of this regulation.
PART VII
Conduct of Proceedings
(1) At the commencement of a hearing, the Land Tribunal shall explain the hearing procedure and the rights of the parties.
(2) An appellant or applicant shall present his or her case first by oral submissions and may call witnesses if any.
(3) A respondent shall present his or her case by oral submissions and may call witnesses if any.
(4) At the close of the hearing the parties shall make written or oral submissions.
39. Recusal of Land Tribunal President
Where at any stage of the proceedings, the Land Tribunal President has close relations with any of the parties or has pecuniary or other interests, direct or indirect, in any matter before the Land Tribunal, the President shall recuse himself or herself from the proceedings.
Where at any stage of the proceedings, a member of the Land Tribunal has close relations with any of the parties or has pecuniary or other interests, direct or indirect, in any matter before the Land Tribunal, the member shall disclose the fact to the Land Tribunal President and if the Land Tribunal President so directs, he or she shall refrain from further proceedings.
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