Tumelo Audrey Kwape

This article examines how judgments granted against Trustees are enforced through the trustee’s right of indemnity and why the registration of immovable property in the name of the trust may create structural difficulties within that enforcement framework.

Across Botswana, immovable property held through trusts is routinely registered in the name of the trust itself. Title deeds commonly reflect ‘ABC Family Trust’ as owner, without identifying the trustees in their representative capacity. The practice is familiar. Transactions proceed without objection. Structures appear complete. However, the registration of trust property in this form raises a fundamental legal question: does the public record accurately identify the person in whom legal title vests and upon whom legal responsibility attaches? This question becomes clearer when one considers that Botswana trust law recognises two distinct trust structures, each with different consequences for ownership and liability.

The proposed Tax Administration Bill 2025 introduces clearer and stronger compliance obligations for trustees. Trustees are expressly designated as representative taxpayers of a trust.

Botswana’s proposed Income Tax Bill 2025 introduces a substantially revised framework for the taxation of trust income. The Bill replaces the historically fragmented approach to trust taxation with clearer attribution and conduit rules, distinguishing between settlor trusts, absolute beneficiary trusts, and other discretionary trust arrangements. These provisions remain in draft form but are expected to be tabled before Parliament in February 2026. Trustees and beneficiaries should take note, as the new rules alter how trust income is attributed, taxed, and reported.

Botswana is entering a new era of tax legislation. The proposed Income Tax Bill, 2025 and Tax Administration Bill, 2025 introduce, for the first time, a formal statutory regime for Non-Profit Organisations (NPOs). In order to satisty tax exempt status, Non-profit trusts are now subject to defined statutory criteria, formal approval, and continuous compliance. Trustees who fail to adapt risk loss of exemption, exposure to back taxes, penalties, and personal liability.

Botswana’s digital world is changing fast, and with the new Data Protection Act (2024) now in force, the stakes for every business-public or private-have never been higher. A data breach is no longer just an IT issue; it’s a legal, financial, and reputational threat, now explicitly regulated with severe penalties.

The reality of data protection law enforcement is clearly demonstrated by South Africa’s experience. Through the rigorous application of the Protection of Personal Information Act (POPIA)- which is the equivalent of Botswana’s Data Protection Act-the consequences for non-compliance have become unmistakable.