Botswana’s property law framework continues to evolve with the Deeds Registry (Amendment) Bill, 2026 (Bill No 13 of 2026) (“the Bill”), which proposes the introduction a number of practical reforms and amendments aimed at aligning the law with judicial precedent, correcting historical anomalies and improving the administration of land rights.
Although the proposed amendments are technical in nature, their impact will be significant for property owners, lenders, developers and legal practitioners.
Recognition of Spouses Married in Community of Property
One of the most notable amendments in the Bill is the expanded definition of “owner” to expressly include spouses married in community of property, in order to allow a spouse (married in community of property) who is not the registered title owner on the title deed but their spouse, to be equally able to register bonds directly using such title deeds without necessarily requiring that only the spouse whose name appears on the title deed be the one to register such a bond.
This amendment gives statutory effect to the decision of the Court of Appeal in NDB v Seabelo Maje (CACGB-203-21), which clarified the proprietary interests of spouses married in community of property in relation to immovable property and the registration of mortgage bonds. It also aligns with the Registrar of Deeds Circular No. 1 of 2024, which was issued following that judgment to guide deeds registry practice pending legislative reform.
In practical terms, the amendment strengthens legal certainty by recognising that property forming part of a joint estate may require the participation, consent or acknowledgement of both spouses in transactions involving transfers, mortgage bonds and related real rights.
For banks, lenders and conveyancers, this codification eliminates uncertainty when taking or registering security over immovable property.
Registrar’s Powers Relating to Antenuptial Agreements
The amendments also grant clearer powers to the Registrar of Deeds in relation to the regulation of antenuptial contracts and related matrimonial property instruments.
This is expected to streamline deeds office procedures where marital property regimes affect ownership, transfers or the registration of security interests. It should also reduce administrative uncertainty where documentation must be lodged to confirm whether property forms part of a joint estate.
Registrar’s Powers Relating Practice Circulars
The amendments also grant clearer powers to the Registrar of Deeds and expressly empowers the Registrar to issue circulars to provide guidance on deeds registry practice and procedure. This is a significant development, as such circulars have historically played an important practical role in standardising registry requirements and addressing operational issues.
Formal recognition of this power should improve consistency, administrative efficiency and responsiveness to evolving legal developments.
Correction of Historical State Land Title Anomalies
A further important reform addresses long-standing anomalies concerning the grant of State land titles for fixed periods.
Historically, certain title conditions and tenure arrangements created inconsistencies in registration practice. The amendments seek to regularise these issues, bringing greater clarity to holders of fixed-term State grants, developers and institutions financing leasehold land.
This is likely to be particularly relevant in commercial, tourism and urban development projects where State land tenure structures are common.
Ancillary Corrective Amendments
The Bill also contains various supporting amendments intended to improve the overall functioning of the deeds registry system. These include technical corrections, clarification of procedures and removal of outdated inconsistencies in the legislation.
While less visible, these changes are often essential in reducing delays and avoiding disputes in practice.
Collectively, the amendments should:
Improve certainty in secured lending transactions
Align deeds registration with matrimonial property law
Assist in regularising historic title issues
Reduce administrative bottlenecks at the Deeds Registry
Support confidence in Botswana’s property market
Armstrongs’ View
These amendments introduced through the Bill reflect a welcome effort to modernise Botswana’s land registration framework while addressing practical issues that have affected transactions for many years. In particular, the recognition of community of property interests and the correction of historic State title anomalies are likely to have immediate real-world impact. The proposed changes are a positive development, and it is hoped that the Bill will be passed and implemented in due course.
How Armstrongs Can Help
Armstrongs through its Conveyancing Department advises clients on:
Armstrongs is proud to have represented Alexander Forbes in a successful appeal before the Court of Appeal in a dispute with the Botswana Unified Revenue Service.
Alexander Forbes had provided services to a client over several years. It was later discovered that the client had been overcharged in earlier years. To correct this, Alexander Forbes refunded the client and recorded the refund as a rebate in its 2017 financial statements.
BURS argued that this amount should not be deducted for tax purposes because it related to earlier years and effectively changed past tax returns. It therefore issued an additional tax assessment disallowing the deduction. Alexander Forbes challenged this decision first before the Board of Adjudicators, which ruled in favour of BURS, and then before the High Court, which ruled in favour of Alexander Forbes.
The Court of Appeal agreed with Alexander Forbes and confirmed the High Court’s decision. It found that the rebate was part of the company’s normal business activities and was sufficiently connected to income it had already earned. The Court also held that, even though the overcharge happened in earlier years, the obligation to refund the client only arose in 2017, so the deduction was correctly claimed in that year. In addition, the Court found that BURS was out of time to reopen the assessment, as it had not met the legal requirements to do so after the four-year limit had passed.
This judgment makes it clear that businesses can claim deductions for expenses that arise when correcting earlier transactions, provided those expenses are closely linked to their business. It also confirms that tax authorities must act within strict time limits when seeking to reopen assessments.
Armstrongs commercial partner Sipho Ziga acted for Alexander Forbes in the matter
Reckless trading is not expressly defined in Botswana’s Companies Act (the “Act”) or in any other legislation.
However, in broad terms, it may be described as carrying on business, or incurring further obligations, in circumstances where there is no reasonable basis for believing that the company will be able to meet those obligations as they fall due. It is not limited to fraud or deliberate misconduct, and may also arise from negligent conduct, willful blindness, or a serious disregard of the company’s financial position and the risk of prejudice to creditors.
In today’s economic climate, many companies face increasing financial strain. Cash flow tightens, creditors apply pressure, and directors are required to make difficult commercial decisions. In such circumstances, it is often tempting to continue trading in the hope that the company’s position will improve. However, once a company is no longer able to meet its obligations, or is clearly heading towards insolvency, the legal position changes fundamentally.
In terms of the Act, directors occupy a fiduciary position and are subject to strict legal duties. Section 130 requires directors to act in good faith and in the best interests of the company, while section 158 requires them to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. These duties require active oversight of the company’s financial position and informed decision making at all times.
A company is not solvent simply because it continues to operate. It must be able to pay its debts as they fall due, and its assets must exceed its liabilities. Once this is no longer the case, the focus of directors shifts away from shareholder value and towards the protection of creditors.
The Act creates clear mechanisms through which directors and officers may be held personally liable where that shift is ignored. Section 160 of the Act provides that a director who is knowingly party to the company incurring a debt without a reasonable or probable expectation that it will be paid may be required to compensate for the resulting loss. In addition, section 158 exposes directors to civil liability where they fail to act with the required level of care, diligence and skill.
The position becomes even more acute once a company is placed under liquidation or judicial management, as its affairs then come under greater scrutiny.
Once appointed, a liquidator or judicial manager will investigate the affairs of the company for the purpose of recovering value for the benefit of creditors, including by pursuing individuals involved in the conduct of its business.
Section 481 of the Act empowers the court, on the application of a liquidator, judicial manager, or any interested person such as a creditor, to hold any person who knowingly participated in reckless or fraudulent trading personally liable, without limit, for all or part of the company’s debts.
This exposure is not confined to directors. It extends to any person who was knowingly party to the conduct of the business, including company officers and others involved in its management or affairs, and it does not require the company to be in liquidation or judicial management for the provision to apply.
The consequences are not only financial. In addition to personal liability, the High Court may, under section 501 of the Act, disqualify a person from acting as a director where that person’s conduct falls below the standard required of those entrusted with the management of a company.
This may arise where a director has, inter alia, persistently failed to comply with the Act or the Botswana Stock Exchange Act, breached duties owed to the company or its stakeholders, engaged in fraudulent conduct, acted in a reckless or incompetent manner, or was responsible for a company being forced into insolvency, restructuring, or winding up due to its inability to meet its obligations.
Such an order under section 501 may prohibit that person, without leave of the court, from acting as a director or promoter of, or being involved, directly or indirectly, in the management of a company for a period not exceeding five years, with significant implications for future directorships and professional standing.
In practice, the risk of personal liability rarely arises from a single decision. Rather, it develops over time. It often begins with mounting pressure on cash flow and an increasing inability to meet obligations as they fall due. This is frequently followed by a reliance on new credit to sustain operations, decisions taken on the basis of uncertain or informal funding arrangements, and a gradual erosion of financial discipline.
Certain patterns also tend to emerge. These include a failure to maintain proper accounting records, the absence of reliable financial information, the use of company funds for purposes outside the ordinary course of business, and the continued incurring of obligations in circumstances where there is no clear basis for repayment.
The Act does not seek to penalise honest commercial judgment. It does, however, require directors to act in good faith, exercise reasonable care, diligence and skill, and ensure that decisions are properly informed and documented. In practical terms, this requires directors to maintain sufficient oversight of the company’s financial position, to interrogate the basis upon which obligations are incurred, and to act decisively where financial distress becomes apparent. This may include obtaining appropriate legal, financial, or restructuring advice at an early stage.
Reckless trading is not simply about business failure. It arises where financial reality is ignored and creditors are exposed to risk without a reasonable basis. Once insolvency sets in, the risk no longer rests with the company alone. It may shift to the individuals behind it.
