Overview of the changes introduced by the Tribal Land Act NO. 1 of 2018

Bonolo Selelo | Monday May 9, 2022 06:00

Land PIC: MORERI SEJAKGOMO

Tribal land has been defined to mean land in a tribal area it also means any interest in tribal land.
The land board has the power with the approval of the Minister to delegate to a third party ability to exercise the powers of the land board.
It introduces a new way of holding tribal land being a Deed of Customary Land Grant, which is to be registered at the Deeds Registry.
People who hold tribal land by either a certificate of customary land grant or a lease have to apply to the land board using a prescribed form within six months from April 20, 2022 to have their certificates or leases registered and must also submit the certificate or lease to be registered as well as any other supporting documents.
People who are occupying tribal land that was given to them by the Kgosi before the previous Tribal Land Act but do not have a certificate or a lease for the land should apply to the land board within six months from April 20, 2022 have for registration.
People holding common law lease have to apply to the land board within six months from April 20, 2022 to have the common law lease re-registered as a customary land grant using the prescribed form and submitting the necessary accompanying documents including the original lease.
The land board has to submit the application for registration to the Registrar of Deeds for registration once the land board is satisfied that the applicant is the holder of the certificate or lease.
If a person fails, refuses or neglects to register or re - register within six months or if the land board cannot find this person after a detailed search the land board will complete and sign the documents in the name of the holder of the certificate or law lease and these shall be registered by the Registrar of Deeds once they are received with an affidavit from the land board giving an explanation.
The land board cannot give non – citizens a Deed of Customary Land Grant unless the person is exempted in law or by the Minister in writing and the land board can give anyone a common law lease including non -citizens the requirement for the Minister’s consent in relation to common law leases has been removed.
The land board may take land from people if it is necessary for public purposes and people whose property has been taken from may be given another piece of land or may be entitled to payment as compensation at market value from the State subject to other considerations.
Where a person deals with tribal land to amongst other things sub - divide, transfer (sell or donates), mortgage or leases for five years or more they need the consent of the land board except if the property is sold in execution, is mortgaged by a citizen or it is going to someone as inheritance.
The shares of a private company, which holds tribal land by Deed of Customary Land Grant or lease cannot be issued, given, sold, transferred without the written consent of the land board.
Citizen in terms of this act includes a company where all its shares are owned by a citizen if a person wants to enter into an agreement with a non-citizen including but not limited to the sell, mortgage or lease for five years or more of their tribal land then they must advertise the proposed transaction 30 days before the transaction is to take place in the Gazette and any other newspaper describing the land, the parties and details of the proposed transaction and citizens may object to the transaction in writing with reasons for such objection, this advertising does not apply if the property goes to a non-citizen due to inheritance or by court order as a result of a divorce.
The application for consent must be in writing to the land board and if it relates to a transaction with a non-citizen then the application must be accompanied by evidence of the advertisements.
Any transactions is void if it is done without the consent of the land board where consent is required or after three months of the agreement for a person to be party to the transaction and the application has not been made to the land board for consent or where the land refuses to give consent and a period of 30 days has passed from such refusal, this does not apply to inheritance unless such inheritance requires subdivision of the land.
If money has been paid and the transaction becomes void then the money is recoverable as a debt by the person who paid it from the person who was paid.
The Registrar of Deeds and/or Registrar of Companies will ensure that the Tribal Land Act has been complied with including the consent by the court, that the necessary documents relating to price have been given before they register the transaction.
Boundaries of land given by Deed of Customary Land Grant must be demarcation within three months for the duration of the grant or it may be cancelled.
The land board may cancel a certificate or lease if the holder is no longer eligible to hold the land, the holder doesn’t comply with any law in relation to the land, has not used the property for the purpose that it was given or if the certificate or lease was given because of fraud, misrepresentation on the part of the holder of the land.
The land board may bring a matter before the Land Tribunal to get back tribal land from a holder where the holder is not complying with the conditions on the Deed of Customary Land Grant or lease and if the land board is successful there will be no compensation for any improvements on the land. *Bonolo Selelo is an attorney at Chibanda, Makgalemele and Company