Monuments and Relics Act, n°15 of 1970

Arrangement of sections
SECTION
1. Short title
2. Interpretation
3. Appointnieut of officers
4. Honorary officers
5. Functions of a custodian
6. Functions of an inspector
7. Functions of the Commissioner
8. Functions of the Minister
9. Agreements for preservation of monuments and relics
10. Proclamation of national monuments
11. Notification of discoveries - Minister's option to acquire
12. Minister's power to acquire access to national monument
13. Minister's power to prevent access to national monuments
14. No excavation without permission of Minister
15. Establishment of Monuments and Relics Fund
16. Reports
17. No alteration, damage, or removal without consent of Mmfctcp
18. Damage to tablets erected by the Commissioner
19. Arrest, seizure and ejectment
20. Offences and penalties
21. Regulations
22. Saving

An Act to provide for the better preservation and protection of ancient monuments, ancient workings, relics and other of esthetic, archeological, historical or scientific value or interest and other matters connected therewith.

(Date of Commencement : 18th june, 1970)

1. This Act may be cited as the Monuments and Relics Act

2. In this Act, unless the context otherwise requires "ancient monument" means any building or ruin, stone circle, grave, cave, rock shelter, midden, shell mound or other site or thing of a similar kind, which is known or believed to have been erected, constructed or used before 1st June, 1902, but does not include an ancient working ;
"ancient working" means any shaft, cutting, tunnel or stope or any building or machinery appertaining thereto, which was made or used for miing purposes and was in existence before 1st June 1902 ;
"Board" means the Ntaional museum and Art Gallery Board established under the National Museum and Art gallery Act ;
"Commissioner" means the Commissioner of monuments appointed under section 3 ;
"custodian" means a custodian appointed under section 3 ;
"excavation" includes any process of digging or unearthing and any act involved in such process, and "excavate" bears a coresponding meaning;
"inspector" means an inspector of monuments appointed under section 3 ;
"monuments" means–
a) any ancien monument ;
b) any area of land which is of archaeological or historical interest orcontains objects of such interest ;
c) any area of and which has distinctive or beautiful scenery or a distinctive geological formation ;
d) any area of land containing rare or distinctive or beautiful flora ;
e) any cave, rock shelter, grove of trees, tree, old structure or other object or article (whether natural or constructed by man) other than a relic, of aesthetic, archaeological, historical or scientific value or interest ;
"national monument" means a monument, ancient working or eelic which has been declared as a national monument under section 10 ;
"relic" means–
a) any fossil ;
b) any drawing, painting or carving on stone or petroglyph executed in Botswana before 1st June 1902 ;
c) any artefact, implement or ornament of archaeological, historical or scientific value made or used in Botswana before 1st June 1902 ;
d) any anthropological or archaeological contents of any ancient monument or ancient working ; and
e) any treasure trove discovered in Botswana.

3.
(1) The Minister shall appoint an officer in the public service to be Commissioner of Monuments.
(2) The Minister shall appoint one or more officers in the public service to be Inspectors of Monuments.
(3) The Minister may appoint custodians and such other staff as may be necessary for the purposes of this Act, and fix any wages or remuneration to be received by them.
(4) Any appointement made under the provisions of subsection (1) or (2) shall be made only with the consent of any Minister in whose Ministry the officer appointed is employed, and shall be notified in the Gazette.

4.
(1) The Minister may, by notice published in the Gazette, appoint fit and proper persons to be honorary officers for the purpose of assisting in the carrying out of the provisions of this Act and the regulations made thereunder.
(2) An honorary officer shall have such powers as may be prescribed, which shall not exceed the powers conferredupon an Inspector of Monuments by this Act and the regulation s made thereunder.
(3) An honorary officer shall hold office for a period of three years unless the appointement be sooner revoked.

5. A custodian shall preserve and prottect from interference any monument, ancient working or relic assigned to his custody by the Commissioner.

6. An Inspector shall –
a) report to the Commissioner any monument, ancient working or relic, not being a national monument, of which he becomes aware, the proclamation of which as a national monument or the control or custody of which by the State may be considered desirable ;
b) when required by the Commissioner, investigate and report upon any matter relating to any monument, ancient working or relic and upon the desirability of proclaiming any monument, ancient working or relic as a national monument ;
c) have reasonnable access at all reasonnable ttimes to any monument, ancient working or relic in order to secure the utilization thereof as part of the cultural resources of Bostwana for the benefit of the community ;
d) undertake such other functions as the Commissioner may direct.

7. The Commissioner may –
a) receive reports from Inspectors on monuments, ancient workings and relics of which they become aware ;
b) instruct Inspectors to investigate and report upon any matter relating to any monument, ancient working or relic as a national monument ;
c) assign to Inspectors such further functions as he may deem fit for the purpose of assisting him in discharging his functions under this Act ;
d) recommend to the Minister the proclamation of any monument, ancient working or relic as a national monument ;
e) recommend to the Minister the negotiation or conclusion of agreements for the acquisition, protection or preservation of monuments, ancient workings or relics ;
f) undertake, with the written permission of the Minister, the excavation or exploration of any monument, ancient working or relics owned by the Republic or in respect of which the Minister has concluded with the owner an agreement permitting such excavation or exploration ;
g) in the case of any monument, ancient working or relic owned by the Republic or in respect of which the Minister has concluded with the owner an agreement for its protection or preservation, do or authorize to be done any act (not inconsistent with any agreement which may be applicable) which he considers necessary for its investigation, protection or preservation ;
h) cause tablets to be erected in suitable place giving information about historical events which have occured at or near such places ;
i) compile a register of all national monuments and of such monuments, ancient working and relics as have been acquired for the Republic or as have been brought to his notice ;
j) advise the Minister on the exercice of his functions under this Act.

8. (1) The Minister may –
a) purchase or take on lease or on loan any monument,ancient working or relic ;
b) accept a gift or bequest of any monument, ancient working or relic ;
c) accept from the owner bf any monument, ancient working or relic the custody and control thereof ;
d) preserve, protect, repair,restore or insure any monument, ancient working or relic which owned by the Republic or under its control ;
e) with the agreement of the Board, give, lend, sell or give in exchange any movable monument or relic to any person., body or institution whether within or without Botswana.
(2) The powers conferred by this section shall be exercised by the Minister as agent for the Governement of the Republic and shall be exercised after consultation with the Commissioner.

9. (1) The Minister may, after, consultation with the Commissioner, enter into a written agreement with the owner of any national monument for its protection or preservation.
(2) An agreement under this section may provide for all or any of the following matters–
a) the maintenance of the national monument ;
b) its custody and the duties of any person who may be employed in connexion therewith ;
c) the restriction of the owner's right to destroy, remove, alter or deface the national monument or, in the case of a fixed or immovable national monument, to build on or near its site ;
d) the facilities of access to be permitted to the public or to any portion thereof, and to persons deputed by the owner or Minister to inspect or maintain the national monument ;
e) the notice to be given to the Minister in case the land on which the national monument is situated is offered for sale by the owner, and the right to be reserved to the Minister to purchase such land or any specified portion of such land at its market value and to acquire rights of access thereto ;
f) the payment of any expenses incurred by the owner, or the Minister in connexion with the protection or preservation of the national monument ;
g) the procedure for resolving any dispute arising out of the agreement ;
h) any matter connected with the protection or preservation, of the national monUment which is a proper subject of agreement between the owner and the Minister; and
i) the removal of the national monument, if movable, to a place of safe custody.
(3) The terms of an agreement under this section may be alteredfrom time to time by agreement between the parties.
(4) An agreement under this section shall be expresse to endure either for a specified period or in perpetuity.
(5) If it is expressed to endure period of ten years or upward or in perpetuity, and if it relates to a national monument which is not movable object, it shall on the application of the Minister be registred in the Deeds Registry without fee or other charge against the title to any land or upon which the national monument is situated.
(6) An agreement under this section, notwithstanding that it is not registered, shall be binding on any person claiming to be owner of the national monument to which it relates through or under a party by whom or on whose behalf the agreement was executed.
(7) For the purposes of this section an owner under disability may be represented by any person legally Competente to act on his behalf.

10. (1) The Minister may, after consultation with the Commissioner, by notice published in the Gazette, proclaim any monument, ancient working or relic to be a national monument : Provided that at least one month before the proclamation of any monument, ancient working or relic which is owned by the Republic, the Minister shall notify the owner thereof in writing that he proposes so to proclaim the monument, ancient working or relic, and such owner may lodge with the Minister objections in writing to the proposed proclamation.
(2) The Minister may, after consultation with the Minister and the Commissioner, by notice published in the Gazette, cancel the proclamation of any national monument.

11. (1) The discovery of any ancient monument, ancient working or relic shall be notified in writing by the Minister without delay by the discoverer, and also by the owner or occupier of the land upon which such ancient monument, ancient working or relic is discovered as soon as discovery comes to his notice.
(2) The minister shall have a right of ption to acquire for the Republic, after consultation of the Commissioner, the ownership of any national monument, ancient monument, ancient working or relic, together with the site thereof, whether or not its discovery has been notified in terms of subsection (1), upon payement to the owner thereof and to any other person having an interestt therein or right thereover of a sum of money to be agreed upon as fair and reasonable compensation or, failing agreement, upon payement of such sum as may be determined by the High Court on application made by yhe Minister.
(3) The right conferred by subsection (2) may only be exercised in order to secure the utilization of a national monument, ancient working or relic as part of the cultural resources of Bostwana for the benefit of the community.
(4) Any dispute as to interest or right of any person claiming to have an interest in or right over any national monument, ancient monument, ancient working or relic intented to be acquired or as to th legally of the the exercise by the Minister of the right conferred by subsection (2) shall be determined by the High Court on application may by the Minister before the national monument, ancient monument, ancient working and relic concerned is acquired.

12. (1) The Minister may, after consultation with the Commissioner, acquire the right to access for members of the public and for person exercising functions under this Act, to any national monument situated on land not owned by the Republic, both across such land and across any adjoining or adjacent land by payment to the owner thereof and to any person having an interest, therein or right tthereover of a sum of money to be agreed as fair and reasonable compensation, or failing agreement, upon payment of such sum as may be determined by the High Court on application made by the Minister.
(2) The right conferred by subsection (1) may only be exercised in order to secure the utilization of the national monument as part of the cultural resources of Bostwana for the benefit if the community.
(3) Any dispute as to the interest or right of any person claiming to have an interest in or right over the land across which the Minister intends to acquire a right af access in terms of subsection (1) or as to the legality of the exercice of the Minister’s power under that subsection, or as to the definition of the right of access and the conditions subject to which it is to be required shall be determined by the High Court on application made by the Minister before such right is acquired.

13. (1) TheMinister may be order published in the Gazette, specify and define sites or portion of national which no person shall enter upon without the permission of the Commissioner or a person authorized by him to grant such permission.
(2) No person shall without such permission enter upon any site or portion of a site specified or defined in terms of subsection (1) save, in the case of a site or portion of a site upon land not owned by the Republic, the owner or occupier of such land or persons visiting the site with the consent of the owner or occupier.

14. (1) No person shall, without the writing permission of the Minister, given after consultation with the Commissioner, and after making such enquiries as he may deem fit, excavate any national monument, ancient monument, ancient working or relic or, if he receives such permission, excavate it contrary to any conditions which may have been imposed ,in such permission or which may be prescribed.
(2) The minister may grant permission in terms of subsection (1) in respect an ancient monument, ancient working or relic, otherthan national monument, only with the consent of the owner of the land in or upon which it is situated and of any other person having an interest therein or thereover.
(3) The Minister may grant permission in terms of subsection (1) in respect of national monument which shall The grantee to enter upon the land in or upon which such monument is situated with such assistants or servants, animals, vehicles, appliances and instruments as may be necessary for the purpose of exacavation ant to excavate such monument : Provided that, in the case of a national monument situated in or upon the land which is not State land– (i) the consent of the owner of such land and any person having an interest therein or right thereover to such entry and excavation shall have been obtained ; or payment of such sum of money as may be determined by the High Court on application made by the Minister or by the person seeking the Minister’s permission as fair and reasonable compensation to such owner or other person for such entryand excavation shall have been made ; and (ii) any dispute as to the interest or right of any person claiming to have an interest in or right over the landin or upon which the national monument is situated or as the legality of the exercice by the Minister of the power conferred by this subsection shall have been determined by the High Court.

15. (1) There is established a fund called the Monuments and Relics Fund which shall comprise–
a) moneys allocated by the Governement for the acquisition, administration, excavation, protection, repair or improvement of national monuments, monuments, ancient workings or relics, or to promote the knowledge and study thereof or public interest therein ;
b) moneys contributed by any person to the Fund for any of the said purposes ;
c) moneys contributed by any person to the Governement for any of the said purposes.
(2) The Commissioner shall be responsible, under the supervision of the Minister for the management and administration of the fund, and shall keep proper accounts of the fund and other records in relation thereto, and shall prepare in respect of each financial year a statement of accounts showing in detail the assets, liabilities, revenue and expenditure of the fund in a form which shall conform with the best commercial standarts.
(3) No payment in excess of P50 shall be made from the fund except upon the authority of the Minister : Provided that the Minister may delegate to the Commissioner authority to pay recurrent and periodical administration expenses of P50.
(4) The Minister may, in his discretion, sanction payments from the fund for any of the purposes mentioned in subsection (1) which, without prejudice to the generality thereof, shall include–
a) the protection of national monuments and of monuments ancient workings and relics from damage of any kind, included their fencing and repair ;
b) the payment, of wages and remuneration to custodians ;
c) the investigation, exploration and excavation of national monuments and of monuments, ancient workings and relics ;
d) the provision of signs at sites of national monument and on roads and routes leading thereto.
(5) The accounts of the fund in respect of each financial year shall within four months after the end of such financial year be audited by auditors to be appointed by the Minister: Provided that no person shall be qualified to be so appointed, unless he holds one or more of the qualifications referred to in section 124 (1) of the Companies Act.
(6) The auditors shall report, in respect of the account for each financial year, whether or not–
a) they have received all the information and explanations which, to the best of their knowledge and belief, were necessary for the performance of their duties as auditors ;
b) the accounts and related of the fund have been properly kept ;
c) the Commissioner has complied, in relation, to his administration of the fund, with all the provisions of this act with which it is his duty to comply ; and
d) the statement of accounts prepared by the Commissioner presents a true and fair view of the information and explanations given and the accounts and records produced to them.
(7) The Minister shall, within 30 days of receiving the report of the auditors and a copy of the audited accounts, Lay such report and accounts before the National Assembly.

16. (1) As soon as possible after the 3lst December in each year theCommissioner shall report to the Minister on all actions taken by the Minister or the Commissioner under the provisions of this Act during that year and on any other matters connected with national monuments, monuments, ancient workings or relics which he may wish to bring to his notice.
(2) Before the 31st March in each year the Minister shall lay before the National Assembly the Commissioner's report in respect of the preceding year together with his observations thereon.

17. (1) No person shall without the written consent of the Minister given after consultation with the Commissioner–
a) make any alteration to, or destroy or damage ; or
b) remove or allow to be removed from its original site or expert or allow to be exported from Bostwana, any national monument, ancient monument, ancient working or relic or any part thereof.
(2) In the case of any national monument, ancient monument, ancient working or relic or any part thereof situated in a tribal territory, no consent in terms of subsection (1) shall be given with out the concurrence of the Tribal Land Board.
(3) Any person who desires to remove from its original site or to export from Botswana any national monument, ancient monument, ancient working or relic or any part thereof shall, when applying to the Minister for his consent, supply the Minister with a drawing or photograph of the national monument, ancient monument, ancient working or relic or part thereof in question, and shall state the exact locality in which it is situated and the place to which and the purpose for which he desires to remove or export it.

18. No person shall deface, damage or destroy any tablet erected by the Commissioner under the powers conferred by section 7 (h).

19. (1) The Commissioner and every Inspector and every custodian may arrest without warrant–
a) every person who commits an offence under this Act in his presence ;
b) every person whom he has reasonable grounds to suspect has committed an offence under this Act ;
c) every person whom he finds attempting to commit an offence under this Act or clearly manifestingan intention to do so.
(2) The commissioner and every police officer, every Inspector and every custodian may take or seize from any person to whom subsection (1) (a), (b) or (c) applies any article by means of which or in respect of which such person has committed, or is found attempting or clearly manifesting an intention to commit, an offece under this Act.
(3) Any person taking or seizing any article in pursuance of subsection (2) shall without delay deliver it to a judicial officer for safe custody pending the determination of any legal procceedings which may be instituedin which the said article may be produced in evidence.
(4) The Commissioner, every police officer, every Inspector and every custodian may eject from yhe site, owned by or in control of the Republic, of any national monument, monument, ancient working or relic any person to whom subsection (1) (a), (b) or (c) applies and any person whose presence on such site or whose access to such national monument, ancient monument, ancient working or relic is prohibited under the provisions of this Act or of regulations made thereunder.

20. (1) Any person who–
a) contravenes any provision of this Act relating to a national monument or a tablet under section 7 (h) ;
b) knowingly or having reason to believe that any ancient monument, ancient working or relic is such, contravenes any provision of this Act relating to such ancient monument, ancient working or relic ;
c) in any application to the Minister for his consent in terms of section 71 knowingly makes any statement which is false in any material respect or supplies therewith any drawing or photograph which is false in any material respect, shall be guilty of an offence and liable to a fine of P2000 and to imprisonment for two years.
(2) If any person is convicted of an offence under this Act or any regulations made thereunder which has involved or resulted in damage to, or the destruction or removal of, any national monument, ancient monument, ancient working or relic or any part thereof or any tablet which the Commissioner has caused to be erected, the Court may, in addition to any other penalty which it may impose–
a) order him to pay such sum as the Court may determine for the purpose of repairing such damage or of compensating thr Republic or any person who has sustained loss by the removal or destruction of any article or thing for the value of such article or thing ;
b) order the confiscation of any article or thing removed and of any tool or implement used in committing such offence.

21. (1) The Minister may make regulations–
a) prescribing anything which in terms of this Act is to be or may be prescribed ;
b) regulating the access of the public to any monuments, whether national or not, ancient workings or relics which are the property of the Republic or (in a manner not inconsistent with any agreement made under section 9) to monuments whether ancient or not, ancient workings or relics which by agreement with the owner are under the custody or control of the Republic ;
c) fixing fees which shall be payable for such access ;
d) regulating the excavation of national monuments, ancient monuments, ancient workings or relics and the removal of relics from national monuments, ancient monuments or ancient workings ;
e) generally for the better carrying out of the provisions of this Act.
(2) Such regulations may prescribe fines of P1000 for contraventions thereof.

22. Any object declared to be a natural and historical monument or relic or monument under the provisions of section 7 of the Bushman Relics Proclamation shall, unless the declaration is cancelled under section 10 (2) of this Act be deemed to be a national monument for the purposes of this Act.