Foundation of Engineering

Law
INTRODUCTION TO LAW
DR OGHENERIOBORUE ESTHER EBERECHI
PART ONE
The nature, classification and sources of law in Botswana
1. The Meaning and Nature of Law
❖ What is law;
❖ The word law was derived from the Scandinavian word lagu, meaning
something that is settled or laid down.
❖ Basically, a body of rules because rules guide us on what to do and
what we ought not to do, regarded as norms.
❖ Norms are regulations prescribing how persons are to behave and
operate as a means of social control, promoting social order in
modern society
❖ The shorter Oxford dictionary defines law as the body of rules,
whether formally enacted or customary, which a particular state or
community recognises as governing the actions of its subject or
members and which it may enforce by imposing penalties.
a. Difference between law and other concept
i. Law and morality
❖ Law is a body of rules and regulations everyone must adhere to.
❖ Morals, on the other hand, refer to general principles or standards of
behaviour that define human conduct within society but are not
compulsory to follow. E.g. fornication.
ii. Law and customs, conventions and social norms
❖ Customs are widely accepted expected behaviours particular to a
specific place, time or society.
❖ At the same time, laws are formal sets of rules that govern the
behaviour of a group of people.
❖ Laws are purposively established, while customs tend to grow naturally
over time
iii. Law and Justice
❖ are strictly connected;
❖ They are not the same thing.
❖ Justice is a broad concept based on equality of rights, fairness
and morality.
❖ Law is a body of regulations and standards set up by
governments and international bodies and is (or should be)
based on justice.
❖ Laws are written norms that regulate the actions of the citizens
and of the government itself in all aspects,
❖ Whereas justice is a principle that may or may not be
universally recognised.
The scope of the concept of justice
i. Legal justice: strict and impartial application of the law despite
its consequences
ii. Distributive or social justice is concerned with the problem of
sharing resources, opportunities, profits and advantages, roles
and offices, responsibilities, taxes and burden or common stock
and the incidents of communal enterprise
iii.Corrective justice, also known as reificatory or remedial justice,
is where the judge has to rectify or remedy inequalities that
arise in dealings amongst individuals in society.
iv.Natural justice is a minimum standard for making decisions
imposed by the common law.
❖ Has two main rules
❖ Audi alteram partem rule, meaning hear the other side rule, also
known as the rule of fair hearing
❖ Nemo judex in causa sua rule, meaning no one can be a judge in
his cause. It is the rule against bias.
NATURE OF LAW
The three ideas about the nature of law are that must be; legitimate,
enforceable, and Valid
1. Legitimate
❖ Legitimacy is the belief that a rule, institution, or leader has the
right to govern.
❖ It is the belief that the law and agents of the law are rightful
holders of authority;
❖ that they have the right to dictate appropriate behaviour and are
entitled to be obeyed; and
❖ that laws should be obeyed simply because it is the right thing to
do.
Legitimating factors include:
a. Legality.
❖ It must be authorised by a law that originates from a widely
accepted source of law.
NATURE OF LAW CONTINUES
b. Democratic legitimacy,
c. Trust.
d. Accountability.
2. Enforceable means to put or keep in force; compel obedience.
❖ Making laws without means of enforcement is useless.
❖ These laws are enforced by establishing institutions such as police,
courts, prison facilities, etc.
❖ The laws made to have consequences for violators.
a. Effects of Law Enforcement.
❖ Reduces crime.
❖ There is order in the society.
❖ Creates fear in potential criminals, thereby reducing and preventing
crime.
❖ Etc. ADD TO THE LIST.
a. What are the consequences of non-enforcement of laws?
❖ Rise in crime rates.
❖ Anarchy
❖ etc (ADD TO THE LIST).
NATURE OF LAW CONTINUES
3 Valid
❖ Meaning: supported by objective truth or generally accepted
authority.
❖ because it belongs to a legal system
❖ because a particular legal system asserts that they ought to be
obeyed.
❖ the act of being effective or binding or having legal force.
❖ Austin said that a law is valid if and only if it is a desire
commanded by a followed sovereign and backed up with a threat
of sanction.
❖ Hart says that a law is valid only if it passes all the tests of
recognition.
How does the law operate?
❖ Law operates either through the regulation or through authorisation
of the behaviour of people, which includes both natural persons
(human beings) and legal entities (organisations and institutions).
❖ Both types of persons are subject to the law.
❖ Law affects a person by regulating almost all conduct.
❖ Law applies everywhere in life, including walking in public places,
being invited out, travelling to other countries and locally,
❖ Living in a house, renting an apartment, owning property, marrying,
divorcing, driving a car, borrowing money, purchasing goods and
services, joining an organisation, going to school, working at an
office, buying insurance, entering into business, contracting, and so
on.
How does law regulate human behaviours, and how does human
behaviour influence law?
❖ Law regulates human behaviours through a system of creating
rights and duties.
❖ Varieties of laws in a hierarchical order produce rights and
duties as human creations.
❖ Members of society create laws as people’s representatives
organised either in the form of an Assembly or a Legislative
Body.
❖ Those who violate other people are made to account for the act
of violation.
❖ If there are laws governing such acts. Then, another human will
enact laws to regulate and punish such acts.
Role of Law in the Society
1. The maintenance of social order
❖ Create legal institutions responsible for legal behaviour.
❖ Through Legal rules, they create a legal system that carries legal
control, e.g. the police, prosecutor, judge, and prison guard.
❖ It is an instrument to preserve the public by protecting civil
liberties and human rights.
❖ Impose restrictions on freedom of speech and movement
❖ Laws designed to promote equality
2. Settlement of disputes
❖ In communities, family, social groups
❖ Through legal rules and systems.
❖ A legal system that carries legal control, e.g. the police,
prosecutor, judge, and magistrates.
3. Regulation of economic activities
❖ Create regulatory frameworks for businesses to flourish.
❖ Price control
❖ Professional bodies e.g. doctors, accountants, architects, nurses, engineers etc.
4.Protection of property rights
❖ Laws for land use.
❖ Rights and ownership and transfers
❖ Tenancy
❖ Agricultural land
5.Protection of interests
❖ Protects interest of state and individuals
❖ Lays out situations where you can be held accountable for wrongful act and
omissions that violates the rights of the states and individuals.
❖ State interest is protected through criminal law.
❖ Private interest is protected through criminal laws, law of delict, contract,
❖ See the case of Attorney General v Dow (1992) BLR 119.
6. Regulation of the principal organs of the state.
❖ Executive
❖ Legislature
❖ Judiciaries
❖ Agencies
7. Other functions
❖ Reinforces morality,
❖ International legal order
❖ Regional legal orders
SOURCES OF LAW
2. Sources of Law
❖ The word source of the law has several meanings.
❖ It may refer to:
• Where a law on a particular issue may be found;
• The source from which a particular rule derives its legal force; and
• How did a particular rule develop; what is its history?
❖ In this section, we will consider sources of Botswana law from all
these perspectives, beginning with a description of the formal
sources of the law, that is, where the law is located, followed by a
historical discussion of sources of Botswana law.
Formal Sources of Law in Botswana
In descending order of importance, the formal sources of law in
Botswana are:
❖ The Constitution;
❖ Other legislation;
❖ Common law;
❖ Custom and other Secondary Sources.
SOURCES OF LAW IN BOTSWANA
1. Constitution; Constitution of Botswana 1966
❖ A constitution establishes a system of government and defines the
boundaries of authority granted to the government.
❖ A constitution is the rule book for a state.
❖ Sets out the fundamental principles by which the state is governed.
❖ Defines the main institutions of the state, and
❖ Delineates the relationship between these institutions (for example,
between the executive, legislature, and judiciary).
❖ Places limits on the exercise of power and sets out the rights and duties
of citizens.
❖ Most constitutions are written (codified). However, the British
Constitution is unwritten.
❖ The Constitution is often described as the supreme law of the land.
Constitution of Botswana 1966 CONTS.
❖ This is because a constitution establishes the organs of the State and
delineates their mandate, functions and powers and their modus operandi.
❖ A Constitution, for example, sets up Parliament, invests it with the power
to make laws, and describes how laws shall be made.
❖ All organs of the State responsible for making laws derive their powers
and legitimacy from the Constitution.
❖ Because of this, the Constitution must prevail over any law that is
inconsistent with it.
SUPREMACY OF THE CONSTITUTION
❖ This means the Constitution is the highest law of the land.
❖ Parliament cannot pass a law which goes against the Constitution.
➢ Thus, the Court Appeal in Petrus & Another v the state [1984] BLR 14,
p 33. Declared s 301 (3) of the Criminal Procedure and Evidence Act
void because it violates section 7(1) of the constitution prohibiting
torture, inhuman, or degrading punishment.
➢ Also, in Attorney-General v Dow [1992] BLR 119, the court declared
section 4(1) of the Citizens Act void for violating the constitutional
provision in s3 and 15, because it denied citizenship to the offspring
of Botswana women married to foreigners but granted citizenship
Botswana men married to foreign women.
➢ A subsidiary legislation in the case of Students Representative
Council of Molepolole College of Education v Attorney-General [1995]
BLR 178. The court of appeal held that a college regulation, which
required a pregnant student to leave the college for at least for one
year, contrary to section 15 of the constitution and thus void or
invalid.
SUPREMACY OF THE CONSTITUTION OF BOTSWANA CONTINUES
❖ No person, not even the President, can go against it.
❖ The courts and the government must also make sure what they do is
constitutional.
❖ The Constitution itself is protected because it is much more difficult to
amend (change or correct) than any other law.
❖ This supremacy of the constitution can also be appreciated from the way
a constitution is made and amended.
❖ Although the Constitution can be described as the country's first and
primary piece of legislation, it is not made or amended like any other law.
❖ The Botswana Constitution, like many other constitutions through which
African countries attained independence, was finalised through a
Constitutional Conference held in London in February 1966.
❖ It was then appended as the Second Schedule to the Botswana
Independence Order (No. 1171 of 1966) and the Botswana Independence
Act (No. 3 of 1966).
❖ In other countries, after a constitutional conference, a referendum may
be required to authorise the adoption of a new Constitution.
❖ By its nature, a constitution must be difficult to amend.
Botswana Constitution Amendment 1
❖ S. 89 invests Parliament with the power to amend the Constitution, but
special procedures must be followed to amend certain parts.
❖ First, parts and sections of the Constitution vital to Botswana’s liberal
democracy require votes of not less than two-thirds of the Members of
the National Assembly.
❖ Such parts and sections of the Constitution include the Human Rights
Chapter (Ch. II); Sections covering the Executive (30 to 44); Ntlo ya
Dikgosi (77 to 79 and 85); Public Finances (117 to 120; and the Public
Service (Ch. VII).
Botswana Constitution Amendment 2
❖ Second, parts and provisions that are truly vital to Botswana’s liberal
democracy can only be amended after a referendum.
❖ The proposed amendment must be supported by “a majority of electors
voting” in the referendum.
❖ The parts and provisions thus so especially entrenched include those
dealing with Parliament; conduct of free and fair elections; the right to
vote; independence and impartiality of the judiciary; constituency
delineation; the Independent Electoral Commission; Sessions of
Parliament; exercise of legislative powers; and section 89 itself, on
amendment of the Constitution.
BOTSWANA CONSTITUTION AMENDMENT 3
❖ For provisions and parts of the Constitution other than those entrenched as
indicated in Section 89 (3) (a) and 89 (3) (b), amendments can be passed by a
simple majority of Members of the National Assembly present and voting on
the proposal.
❖ However, the procedures for passing an amendment to the Constitution are
slightly different from those required for passing an ordinary law.
❖ First, a proposed amendment to the Constitution must be referred to Ntlo ya
Dikgosi for debate. This is not required for every law.
❖ Second, a constitutional amendment cannot be processed under the “urgency
Procedure”.
❖ To allow for debate and consultations, after a Bill has been gazetted or read
for the first time, the Assembly cannot consider the matter again until after a
lapse of 30 days.
❖ For other laws, a motion can be passed in the Assembly to proceed with the
Bill as a matter of urgency.
2. LEGISLATION
❖ These are also regarded as acts of parliament,
❖ These are laws formed by the appropriate organ or organs of the state, e.g.
Parliament s 86.
❖ These are laws formed by the appropriate organ or organs of state, e.g.
Parliament
❖ A statute is a law enacted by a legislature. Statutes are also called acts, e.g.
Children's Act
❖ Legislation refers to laws passed by Parliament or by bodies to which
Parliament has delegated the power.
❖ All laws enacted by parliament must conform to the constitution.
❖ The Court Appeal in Petrus & Another v the state [1984] BLR 14, p 33.
Declared s 301 (3) of the Criminal Procedure and Evidence Act void on the
grounds that it violates section 7(1) of the constitution prohibiting torture,
inhuman, or degrading punishment.
❖ Also, in Attorney-General v Dow [1992] BLR 119, the court declared
section 4(1) of the Citizens Act void for violating the constitutional
provision in s3 and s15 because it denied citizenship to the offspring of
Botswana women married to foreigners but granted citizenship
Botswana men married to foreign women.
❖ A subsidiary legislation in the case of Students Representative Council
of Molepolole College of Education v Attorney-General [1995] BLR 178.
The court of appeal held that a college regulation, which required a
pregnant student to leave the college for at least one year, contrary to
section 15 of the constitution and thus void or invalid.
Forms of Legislations
1. Acts of Parliaments (primary source).
❖ Section 49 of the Interpretation Act 1984 defines Acts of parliaments as any
enactments by the parliaments of Botswana or any law of an authority formerly
exercising an authority to make laws for the territory or any part of the territory
comprised in Botswana.
❖ As part of preparation for the birth of Botswana’s.
❖ The British created a legislative council in 1960, allowing it to legislate on
various issues.
❖ The enactment made by the legislative council were called Laws between 1961
to 1965.
❖ Whereas all legislation introduced into Botswana by the High Commission were
called proclamations
❖ However, all laws enacted by the Parliament after the independence are called
Acts.
2. Delegated or subsidiary legislation:
❖ Section 49 of the Interpretation Act 1984 declares subsidiary legislation
as a statutory instrument.
❖ It defines it as any preparation for the birth of the Botswana
Interpretation Act proclamation, regulation, rules, rules of court, order,
bylaws or other instruments made directly or indirectly under any
enactment and having any legislative effect.
3. Autonomic Legislation:
❖ This is where an autonomous body is empowered to enact law for its own
members e.g. the University of Botswana and Law Society.
Purpose or Functions of Legislation
❖ Is to Create, alter, or revoke laws.
❖ to give effect to the will of the electorates.
❖ Through this effect, the people’s general will as expressed by their
elected representatives.
❖ Law reform if the law is stale, restrictive, incapable of adaptation if the
law is controversial and unpopular.
❖ Parliament may introduce a novel law to replace an old one or if the
court of appeal has overruled the effect of an existing law.
❖ For instance, in State v Ndeleleni Dube [1991] BLR 175. The High Court
said that if an accused person gives inadmissible or irrelevant evidence
to the police as part of a confession. The effect is that that evidence is
inadmissible against the accused person.
❖ The parliament reacted, overrode the judgement, and enacted the Criminal
Procedure and Evidence (amendment) Act.
❖ Also, in Kweneng Land Board v Matlho [1992] BLR 292. That provoked a
public outcry and criticism with its interpretation of section 10 (2) of
Customary Law Act 51 of 1969, meaning that tribal land can be owned by a
person in a private capacity and alienated as private property. This led to a
sweeping amendment in which the subsection was deleted.
❖ Consolidate on previous statutes; this happens when we have different laws
regarding the same law subject.
❖ Revisions of Laws Act 2002 gives the Attorney General power, as the Law
Revision Commissioner, to make corrections and minor improvements in the
course of consolidation of the laws.
❖ S 9(b) empowers the AG to alter, affix two or more laws written in one and
add a date.
❖ Codification.
❖ Budget proposal needs to be approved; revenue collection must be made a
law.
Members of the National Assembly
❖ S. 57 says that Parliament in Botswana shall consist of the President and
the National Assembly.
❖ The President is an ex officio member of the National Assembly.
❖ He/She is entitled to speak and vote in all Assembly proceedings.
❖ This complicates the application of the doctrine of separation of powers to
the Botswana Constitution
❖ S. 58 (2) of the Constitution states that in addition to the President, the
National Assembly shall consist of:
➢ 57 Members were elected as specified by the Constitution.
➢ 4 specially elected Members; and
➢ The Speaker of the National Assembly, if he/she is elected from among
persons who are not Members of the Assembly.
Qualifications for Election
❖ Note the following qualifications for election to the National Assembly:
▪ Citizenship;
▪ Majority age; and
▪ Registration as a voter.
❖ And the following factors disqualifying a Member or a potential
Member:
▪ Insolvency or bankruptcy;
▪ Insanity; and
▪ Conviction for an offence for which the sentence is death or
imprisonment exceeding six months.
Exercise of Legislative Powers
❖ The legislative process in Botswana starts with the publication of a
draft law (Bill) in the Government Gazette.
❖ This should be followed by introducing the Bill in the National
Assembly after not less than 30 days.
❖ The Executive usually introduces Bills in the National Assembly.
❖ It is possible for an ordinary Member to introduce and lead the process
of passing a Bill in the Assembly.
❖ This is, however, difficult without the cooperation of the Government.
❖ A Member cannot present a Bill without leave of the Assembly, in
which the Government has the largest number of Seats and votes.
LEGISLATIVE PROCESS: FIRST READING
❖ A Bill is prepared by the Attorney General’s Office in consultation and
collaboration with the line Ministry of Government promoting it.
❖ After a published Bill has been placed on the Order or Schedule of the
Assembly, the Clerk of Parliament will read its short title aloud once,
without any debate or discussion. This is the First Reading of a Bill.
❖ A date may then be set for the Second Reading.
❖ Some Bills, however, must be referred to the Ntlo ya Dikgosi before the
Second Reading in the Assembly.
❖ This, as noted earlier, includes bills proposing to amend the Constitution
and bills affecting or relating to the powers of Dikgosi or Dikgosana,
customary courts, customary law, and tribal organisations or tribal
property. [Section 88 (2) of the Constitution] organisation.
Reference of a Bill to Ntlo ya Dikgosi
❖ The Ntlo ya Dikgosi is given 30 days to consider the Bill and pass a
resolution on it.
❖ The resolution will be laid before the National Assembly, but it is not
binding on the Assembly.
❖ It can indeed be ignored in the further consideration of a Bill by the
Assembly.
❖ The Ntlo ya Dikgosi, therefore, has no legislative powers. It is merely
an advisory chamber whose views on some issues must be extremely
noteworthy.
❖ On the day appointed for the Second Reading, the Member promoting
the Bill moves a motion that it be read for the second time.
Second Reading and Committee Stage
❖ The promoter of the Bill explains its basic principles and general
merits after it has been read a second time.
❖ This is followed by a debate on the basic principles and general merits
but on the specific clauses and details.
❖ The promoter then moves a motion that the Bill be considered at the
next stage of the process.
❖ This is the Committee Stage. They will consider the Bill in detail at
this stage, either by the whole Assembly as a Committee or by a
Select Committee.
❖ The Assembly may propose amendments and improvements to the Bill
but must preserve its basic principles, which would have been
approved at the Second Reading.
Third Reading and Presidential Assent
❖ After the Committee Proceedings, the Member promoting a Bill
moves a motion that the Bill, with or without amendments, be read
a third time.
❖ Members will debate the Bill further, but no amendments can be
entertained during the Third Reading.
❖ When the motion passes, the Bill can now be sent to the President
for his assent.
❖ The Parliament will send four copies of the Bill to the President for
his assent and signature.
❖ After signing, he retains one copy and sends the other copies to
the Speaker, Chief Justice and Archives.
Withholding of Assent
S. Through the President’s Assent, a Bill is transformed into an Act of
Parliament.
❖ S 87 (2) of the Constitution states that the President “shall either
assent or withhold his or her assent” to a Bill.
❖ If he/she withholds assent, the Bill shall be returned to the National
Assembly.
❖ The Assembly may then resolve, within six months, that the Bill again
be presented for assent.
❖ The President must then assent to the Bill within 21 days or dissolve
Parliament.
❖ This is an unlikely scenario where the President is elected by the Party,
winning the majority seats in the National Assembly, and the
President’s party directs and controls the legislative program.
3. Common Law:
❖ The word is used in various ways to mean with different
connotations.
❖ the part of English law is derived from custom and judicial precedent
rather than statutes.
❖ In law, common law is the body of law created by judges and similar
quasi-judicial tribunals by virtue of being stated in written opinions.
❖ Common law is a body of unwritten laws based on legal precedents
established by the courts.
❖ Common law influences the decision-making process in unusual
cases where the outcome cannot be determined based on existing
statutes or written rules of law.
In Silverstone Pty Ltd v Lobatse Clay Works (Pty Ltd) (1996] BLR 190 P
194-195
❖ Botswana common law was declared as Roman-Dutch Law.
❖ The word common Law may be employed in three different ways.
➢ Literally, it could mean the national law that applies to all residents of
Botswana, irrespective of their origin or statement of belief. In a broad
sense, it refers to Botswana’s legal system.
➢ Secondly, it could refer to legal systems that were influenced or majorly
influenced by English common law. E.g. Canada, United States,
Australia, Ghana, Kenya and Zambia.
➢ It refers to the aspects of Botswana Law that are unwritten and have
not been enacted by Parliament or any authority or ministry. It excludes
customary law.
Reception of Roman-Dutch Common Law in Botswana
❖ A British Order in Council of 9 May 1891 by the Late Queen of England in
exercising powers conferred on her by The Foreign Jurisdiction Act of 1890.
❖ Gave the High Commissioner appointed to administer Bechuanaland powers
amongst other things.
❖ By Proclamation to provide for administration of justice.
❖ Same Commissioner in charge of Cape Colony in Cape Town,
❖ Acting under the 1891 Order in Council, published a Proclamation on 10 June
1891.
❖ Gave Botswana a complete administration system, established courts and
provided for the appointment of various officials.
❖ The High Commissioners administered their seats from Cape Town and
Pretoria.
❖ Legislated for the territory by extending Proclamations intended for South
Africa to Bechuanaland.
❖ Section 19 of the 1891 Proclamation provided that:
 “Subject to the foregoing provisions of this Proclamation, all suits, actions,
or proceedings, civil or criminal, the law to be administered shall, as nearly
as the circumstances of the country will permit, be the same as the law for
the time being in force in the Colony of the Cape of Good Hope; Provided
that no Act after this date by the Parliament of the Colony of the Cape of
Good Hope shall be deemed to apply to the said territory.”
❖ The exact meaning of this provision was unclear, and this reception clause
differed significantly from the reception clauses that the British government
used to introduce English Common Law to most of its other African colonial
territories.
❖ It was uncertain whether the phrase “the law for the time being in force” in
the Cape Colony sought to import the Cape colonial law of 10 June 1891 or
the living system of law as changed from time to time and administered in
the Cape Colony.
❖ The provision has generally been interpreted to mean that it provided for a
timeless reception of Cape Colonial law, that is, the living system of Cape
Colonial law as it changed from time to time.
❖ Nevertheless, to clear any doubts, a new reception clause was introduced
by the General Law Proclamation of 1909, Section 2 of which provided that,
“the laws in force in the Colony of the Cape of Good Hope on 10th day of
June 1891 shall mutatis mutandis and so far as not inapplicable be the laws
in force and to be observed in the said Protectorate.”
❖ Whilst the 1891 Proclamation is considered to have provided for the timeless
reception of Cape Colonial Law, the inclusion of the words “mutatis
mutandis,” is taken to refer to both its unwritten and written laws. However,
Section 4 of the 1909 Proclamation made it clear that Cape Colonial Law
was only to apply in Botswana “so far as not inapplicable,” the effect of
which was to provide for the exclusion or modification of the laws that did
not fit the circumstances prevailing in the country.
❖ As regards the written law that was applicable, the 1891 Proclamation had
provided that no statute enacted after 1891 was to apply to Botswana,
suggesting that only pre-1891 Cape Statutes were applicable.
❖ The position was further clarified in the 1909 Proclamation, which provided
that no post-1891 statute was to be deemed applicable unless specifically
rendered applicable to the territory by Proclamation.
❖ Any possible doubts about this were settled by the promulgation of the
General Law (Cape Statutes) Revision Proclamation of 1959, which not
only confirmed the applicability of unwritten Cape Colonial Law but also
provided that all Cape statutes, except those already applied and a
further list of 36 statutes listed in a schedule, should “no longer be in
force in the territory.”
❖ Although a few Cape Colonial statutes still apply today in Botswana, most
of them have now been repealed.
❖ There is no explicit mention of Roman-Dutch Law in the reception clauses
of the 1891 and 1909 Proclamations.
❖ Nevertheless, since Roman-Dutch Law was then the Cape Colonial Law,
this is now generally considered by both jurists and judges to have been
received in Botswana. Tebbutt J.A. reaffirmed this position in the Court of
Appeal case of Silverstone (Pty) Ltd v Lobatse Clay Works (Pty) Ltd [1996]
BLR 190) thus:
❖ “… it is to be noted that the common law of Botswana is the Roman-Dutch
Law. Although this was laid down as long as 1909 (by Proclamation No. 36
of 1909) when Botswana was still the Bechuanaland Protectorate, the
Roman-Dutch had continued to this day to be applied and is still so
applied in Botswana.” (pp. 194-195).
❖ Despite this, there are many who consider the term “Roman-Dutch law” to
describe what was received as quite misleading and telling only half the
story. This criticism holds true not only in the context of Botswana but
also with respect to South Africa itself, through which Botswana received
this law.
❖ The Roman-Dutch law that was extended to Botswana in the 1891 and
1909 Proclamations was therefore a mix of the original Roman-Dutch law
that was brought by the Dutch in 1652, the English law that was
progressively introduced by the British from 1806 and the principles
developed by the local courts. Because of this civil law (Roman-Dutch law)
and common law (English law) mix, it is not surprising that some writers
have suggested that referring to what was received as Cape Colonial law
or as South African common law is probably more accurate.
❖ Although calling it Roman-Dutch law may be both inaccurate and possibly
perverse, this is a neutral term, provided it is properly understood, serves
to underline the uniqueness of this law, and opens important vistas for its
creative expansion to solve legal problems.
❖ The content of the Botswana common law
➢ Roman Dutch Law as influenced by English Law
➢ Judicial decisions or Judicial precedents based on the English doctrine
of stare decisis
 The 1891 Proclamation that introduced the Roman-Dutch law to
Botswana was a departure from the USUAL English practice.
 That introduces the common law with the doctrine of equity and the
English statute of general applications to all their colonies.
 The 1891 Proclamation reveal that Botswana received a mixture of the
English common law and the Roman-Dutch Law as applied in South Africa
 The English law had a cut-off date (1 January 1900).
➢ Judicial decisions or judicial precedents based on the English doctrine of
stare decisis.
4. Judicial Precedent
❖ Is the English doctrine of binding precedence known as stare decisis, meaning
“to stand by decided matters?”
❖ The phrase stare decisis is a short form of “stare decisis et non quieta
movere” meaning “stand by the decision and do not disturb settled matters.”
❖ Stare decisis was received in Botswana as part of the Roman-Dutch law.
❖ The doctrine was received as part of the Supreme Court in 1828.
❖ Prior to this time, SA followed the decisions of courts in Holland in the 17th and
18th Centuries.
❖ This doctrine was founded on the tradition that judges apply rules in previous
cases to the current cases.
❖ Sometimes, create new principles.
❖ Judges in applying and declaring the law in this way develop law.
❖ This is how judicial precedence and or case constitute a source of law.
❖ Two types of precedent: binding and non-binding.
Binding Precedent
❖ a legal rule or principle articulated by an appellate court must be followed
by lower courts within its jurisdiction.
❖ Following the decisions made by higher courts. Lower courts must follow
the precedents set by the decisions of higher courts and this is called
binding precedent.
❖ It is said that judicial decisions are binding on similar cases
❖ What is binding is the decision but the legal principles on which the
decision was based or the legal reason for the decision.
What influences the doctrine? Articulated by an appellate court
❖ Declaratory theory of the judicial function which says that the function of
the judge is to discover and apply the law at common law.
 However, judicial decisions are declaratory and original.
 Judges create or exercise a strong creative influence on common law
Binding precedent cont.
❖ Principles of judicial consistency and legal certainty.
❖ This was a result of judges’ effort to keep the law consistent.
❖ This rationale was stated in Mirehouse v Ronnell (1833) 1 CI & F 527, P 546.
Parke J said that the common law consists of
 The application of a new combination of circumstances, those rules
of law which we derive from legal principles and judicial precedent
 to attain uniformity, consistency and certainty.
 Rules must be applied where they are not unreasonable and inconvenient to
all cases that arise.
❖ For the doctrine to operate efficiently
 There must be a hierarchy of courts.
 The decision of the court above must bind the courts below.
 Or by a court of equal standing
 There must be an efficient and regular system of law reporting that is easily
accessible law reports.
 It does not mean unreported cases cannot form a binding precedent.
Advantages of Binding Precedent
❖ Legal certainty, i.e. gives confidence
❖ Precision, i.e. cases contain solutions to various problems.
❖ Flexible, this means that decisions that are not sound can be
overruled.
Disadvantages
❖ Rigid.
❖ Bulk and complex.
❖ Danger of illogical distinctions.
❖ Absence of precedent: It can’t work when there are no
precedents,
Binding elements of the precedent
Ratio Decidendi
❖ The legal reasons for the decision.
❖ Not every statement made by a judge constitutes a ratio decidendi.
❖ However, a judge’s or Magistrate’s decision contains three sections.
1. Finding material facts, which may be direct or inferred, judges may draw
inferences from direct or perceived facts. E.g. if a driver kills a bystander,
what he wears, or his sex is immaterial. What is material of law is the fact
that the driver was drunk.
2. Statements of the principles of law applicable to the legal problems
disclosed by the facts.
3. The judgement is based on the effect of 1 and 2.
❖ No. 3 is the judgement, which is very important to the parties to the suit
because it sets out their rights and liabilities.
❖ The second element (no 2) is the ratio decidendi
❖ Ratio decidendi Is the statement of law applied to the legal problems
disclosed by the facts as found upon which the decision is established.
❖ You can have more than one ratio decidendi in one case.
❖ At the Court of appeal different judges can state different ratios see the
case of Attorney General v Dow (1992) BLR 119.
❖ If there is a binding authority to the contrary on the point
❖ The date the decision was made must not be too old or too recent.
❖ Whether there are dissenting judgements;
❖ If there are different reasons (rationales) for the same decision;
❖ If the action was opposed, or counsels argued the point and;
❖ How reliable the reporter was.
Note that even though obiter dicta are nonbinding, it has led to the
development of certain common law principles such as;
❖ Equitable estoppel
❖ Liability of lawyers in negligence in dealing with matters not related to
litigation
❖ The basis of liability for negligent misstatement.
❖ The neighbour principle was also developed obiter by Lord Atkin in Donoghue v
Stevenson [1932] AC 562, the basis of the law of negligence received and
applied in the Roman-Dutch law of delict.
PRECEDENT THAT ARE NOT BINDING
Precedents that are not binding, might be because they are obiter dictum or
distinguished or overruled or were arrived at per incuriam
1. Precedents that constitute persuasive authority
❖ Persuasive authority refers to cases, statutes, regulations, or secondary
sources the court may follow but does not have to follow.
❖ sources of law, primary or secondary, that carry some authoritative
weight but that do not bind a court.
❖ A decision or other pronouncement of law that, under the doctrine of
precedent, a court may but need not apply when deciding the case before
it. Persuasive authorities include decisions of courts of equal or lesser
standing, decisions of courts outside the English legal system
(particularly, courts of Commonwealth countries having systems based
on the common law), e.g. obiter dicta, and the opinions of eminent
textbook writers.
Obiter Dicta
These are statements of law made in passing by the judge. They are mere
remarks that did not lead to the judgment; therefore, they are not binding.
In State v Moyo [1988] BLR 118, the respondent challenged the jurisdiction
of the high court to review a decision of a Magistrate court granting bail
because this was an administrative matter under section 95 (1) & (5) of the
Constitution,
❖ that the high court has no jurisdiction to review and that doing so
amounts to interference with the magistrate’s discretion.
❖ The HC held that it had the power to review the bail decision of a lower
court because it had the powers to do so.
Although obiter dicta are persuasive (influential) and nonbinding. But their
weight depends on the following;
❖ The rank of the court, i.e. more weight is placed on superior courts, e.g.,
the obiter of CA.
❖ The eminence (renown) of the judge who made the statement.
❖ Whether it was a deliberate statement of law or a casual expression of
opinion.
➢ The decision of inferior courts, e.g. the decision of an HC, is only
persuasive at the CA.
➢ Decisions of foreign courts, especially commonwealth, English, and
South African courts. Because of historical links. In Mohalenyane v The
State [1985] BLR 542, 548, Amissah JA warns of over-reliance on foreign
judgement.
➢ Also, in State v Ramolale [1986] BLR 215, O’Brien Quin CJ, observed that,
in many courts in Botswana, many judges refer to foreign decisions, even
when there have been similar decisions on the matter in Botswana, it
shows that some judges are not familiar with the Botswana Law reports.
2. Precedents that have been overruled
❖ Overruled means to use greater authority to change a decision that has
already been made.
❖ To set aside the decision of a court in an earlier case. Because of the
doctrine of precedent, a court can generally only overrule decisions of
courts lower than itself. The setting aside of the judgment of a lower
court on appeal is called a reversal.
❖ The refusal by a judge to sustain an objection set forth by an attorney
during a trial, such as an objection to a particular question posed to a
witness. To make void, annul, supersede, or reject through a subsequent
decision or action.
❖ to reject an attorney's objection to a question of a witness or admission
of evidence. The trial judge allows the question or evidence in court by
overruling the objection. If the judge agrees with the objection, he/she
"sustains" the objection and does not allow the question or evidence. 2)
to decide (by a court of appeals) that a prior appeals decision on a legal
issue was incorrect and is no longer a valid precedent on that legal
question.
❖ to set aside the rule of a lower court. When achieved by a superior court in
the Anglo-American system, the effect is retrospective. The term can be
used for a statute that changes the legal effect of a decision. This is done
from the date the statute comes into force.
❖ To annul, to make void. This word is frequently used to signify that a case
has been decided directly opposite to a former case; when this occurs, the
first decided case is said to be overruled as a precedent and can no longer
be considered a binding authority.
❖ Note: Courts are usually hesitant to overrule previous decisions unless they
are sure the previous decision was in error and continuous existence of it
will lead to miscarriage of Justice.
❖ Besides the need to ensure that there is legal certainty and reliability.
❖ Their hesitation in overruling a previous decision is because it has a
retrospective effect; there is a risk that it can affect an individual’s vested
proprietary interests, disrupt settled financial arrangements or even impose
criminal liability.
❖ This why certain English cases such as;
➢ The rule in Pinnel’s case (1602) 5 Co Rep 117a Facts:
➢ The defendant, Cole, owed the plaintiff, Pinnel, the sum of £8 10s. Pinnel
sued Cole for recovery of the debt. At Pinnel’s request, Cole had paid £5 2s
6d one month before the debt was due and stated that they agreed that
this part payment would discharge the entire debt.
Issues:
➢ The defendant argued that the plaintiff had accepted partial payment of
the debt as satisfaction of the whole. However, it was a general rule that
payment of a lesser sum than that owed in satisfaction of a debt could not
discharge the obligation to repay the whole amount.
Decision/Outcome:
➢ The court confirmed the general rule that part payment of a debt cannot
be satisfaction for the whole. However, since the payment had been made
early, this was sufficient to discharge the debt. Lord Coke said (at 1117a):
➢ ‘Payment of a lesser sum on the day in satisfaction of a greater sum cannot
be any satisfaction of the whole… but the gift of a horse, hawk, robe etc. in
satisfaction is good. For it shall be intended that a hawk, horse, robe, etc.,
might be more beneficial to the plaintiff than the money
➢ Therefore, by paying some money early, the defendant provided the plaintiff
with a further benefit and did not just repay the money he already owed.
Consequently, this was a good consideration, and the court found for the
defendant., etc.
Foakes v Beer (1884) 9 App Cas 605 has not been overruled.
Facts
The respondent, Beer, loaned the appellant, Dr Foakes, £2090 19s. When he
could not repay this loan, she received a judgment in her favour to recover this
amount. The pair then entered an agreement whereby ‘in consideration’ of an
initial payment of £500 and ‘on condition’ of six-monthly payments of £250 until
the whole amount was repaid, she would not enforce her judgment against him.
Foakes made these regular payments until the entire amount was repaid.
However, he had not paid any interest on the judgment debt, which Beer was
entitled to under statute. This interest totalled £302 19s 6d.
Issues
➢ The respondent’s case was that the promise not to enforce the judgment
was not supported by reasonable consideration because the appellant
had only done what he was already contractually bound to do. The
respondent relied on the rule in Pinnel’s Case (1602) 5 Co Rep 117 that
part payment of a debt could not satisfy the whole.
➢ Decision / Outcome
➢ The House of Lords held that the respondent’s
promise not to enforce the judgment was not binding as Dr Foakes had not
provided any consideration. Their Lordships approved the rule in Pinnell's
Case. Lord Selborne said there had to be ‘some independent benefit, actual
or contingent, of a kind which might in law be a good and valuable
consideration’.
➢ However, Lord Blackburn expressed dissatisfaction with this, noting that
by accepting less, a creditor could, in some cases, gain a practical
benefit.
❖ However, a court will not delay overruling previous wrong cases.
overruling previous wrong cases.
❖ For instance, in Bourne v Keane [1919] AC 815 where the House of
Lords, in considering an aspect of the law of Trusts, overruled a series
of longstanding decisions, although this had a distressing many existing
trusts and settlements.
❖ In Medical Rescue International Botswana Ltd. v The Attorney-General
& others Civil Appeal No 055/2005 (Unreported), Botswana CA held that
interim injunctions could be granted against the Government in
proceedings for Judicial review.
❖ It overruled its previous decision in Kandu & Others v Director of
Veterinary Services & Another [1996] BLR 618. It was held that a court
cannot grant an interdict against the Government.
❖ What is overruled is not the decision but the rule of law on which the
decision was made.
Difference between overruling a decision or reversing a decision.
❖ When a judgement is reversed, the decision is altered on appeal.
Therefore, it only affects the decision in that case.
❖ However, if a decision is overruled, it has a retrospective effect.
3. Precedent that can be distinguished
❖ This is when judges at the upper courts supplant old or new well principles
and replace them with new ones through a re-examination, explanation, or
reinterpretation of the facts and the rationes decidendi of the precedent.
❖ This makes the doctrine of judicial precedent flexible and adaptive
❖ Types of distinguishing
➢ Restrictive- when a court feels that an earlier decision is unpalatable to
follow. Thus, they interpret that legal decision as narrowly as possible to
avoid following such earlier decisions and cut down its scope. Or
➢ If a court had considered a broad rule without considering its consequential
effect, that may be unjust, inconveniencing or objectionable.
➢ The court will treat that ratio decision of an earlier case as immaterial that
was material.
➢ In Peabody Donation Fund Governors v Sir Lindsay Parkinson & Co Ltd [1983]
UKHL 5 (18 October 1983) (Peabody Fund v Sir Lindsay Parkinson Ltd. [1984]
2 WLR 953), the court restricted the controversial Anns v Merton London
Borough Council [1978] AC 728, principle of liability in negligence where it
fails to inspect a building plans properly. In the Peabody Fund case, non-
restrictive.
5. Customary Law
❖ Regulated by Customary Law Act.
❖ “Customary law” means, about any tribe or tribal community, the customary law
of that tribe or tribal community so far as it is not incompatible with the
provisions of any written law or contrary to morality, humanity or natural justice;
❖ Because of its little interest in administering Botswana, it was no surprise that
the British, after declaring the protectorate over the territory, interfered as little
as possible with the internal administration of the country.
❖ This was also equally consistent with its general colonial policy of “indirect
rule”, which they saw as the best way for the administration to officially
recognise and use the existing indigenous systems of rule and law in place as
much as possible.
❖ As a result of their philosophy of indirect rule, the British decided to make use of
the existing traditional dispute settlement agencies that they found in Botswana.
❖ Unlike in some of the other British colonies, this policy worked quite well in
Botswana because the Tswana tribe, who today make up almost 79% of the
population, had already developed what was, by all standards, a highly
sophisticated judicial system.
❖ The British incorporated this system into the new court structure they
introduced to deal with disputes involving whites with little difficulty.
❖ Under Article 4 of the General Administration Order in Council of 9 May
1891, the High Commissioner, in issuing Proclamations, was required to
“… respect any native laws or customs by which the civil relations of any
native chiefs, tribes or populations under Her Majesty’s protection are
now regulated, except so far as the same may be incompatible with the
due exercise of Her Majesty’s power and jurisdiction.”
❖ At the beginning of the Protectorate, virtually no modification was made
to the authority and operation of the traditional courts.
❖ However, gradually, the scope and operation of these courts were
progressively limited in various ways.
❖ Until 1934, the British had left mainly the traditional dispute settlement
system in which the chiefs played a prominent part unaltered.
❖ Among the Tswana tribes, several grades of customary courts operated
within a hierarchical structure to which cases were tried.
❖ An 1891 Proclamation limited their jurisdictions to Africans, although the
statutory courts that had been introduced could exceptionally extend
their jurisdiction to Africans if this was “necessary in the interests of
peace, or for the prevention or punishment of acts of violence to persons
or property” (Section 8 Proclamation of 10 June 1891).
❖ Initially, the received laws and the statutory courts that were set up to
apply them from the creation of the Protectorate were meant to be
applied only to the minority Europeans (including “Europeans” of African
descent), whilst customary law was to be applied only to the indigenous
population.
❖ Customary courts could not even take on cases where one of the
witnesses was a non-African.
❖ As time went on, as Botswana became more educated and came in direct
contact with the received laws during their profession or occupation,
some of the indigenous population increasingly came under the
jurisdiction of the new courts.
❖ Interaction between the indigenous people and the European settlers also
made the parallel development of the two legal systems impossible.
❖ An 1891 Proclamation limited their jurisdictions to Africans, although the
statutory courts that had been introduced could exceptionally extend their
jurisdiction to Africans if this was “necessary in the interests of peace, or for
the prevention or punishment of acts of violence to persons or property”
(Section 8 Proclamation of 10 June 1891).
❖ Initially, the received laws and the statutory courts that were set up to apply
them from the creation of the Protectorate were meant to be applied only to
the minority Europeans (including “Europeans” of African descent), whilst
customary law was to be applied only to the indigenous population.
❖ Customary courts could not even take on cases where one of the witnesses
was a non-African.
❖ As time went on, as Botswana became more educated and came in direct
contact with the received laws during their profession or occupation, some of
the indigenous population increasingly came under the jurisdiction of the new
courts.
❖ Interaction between the indigenous people and the European settlers also
made the parallel development of the two legal systems impossible.
❖ The next significant enactment was the Native Courts Proclamation of
1943, which for the first time contained provisions dealing with the
recognition, constitution, powers and jurisdiction of customary courts.
Until 1943, trials in customary courts had not been regulated by any
statutory enactments and chiefs had carried on administering their Kgotla
in more or less the same way they had done before 1891.
❖ The new Proclamation further limited the jurisdiction of customary courts
in both criminal and civil matters. In fact, the reality today is that the
power of traditional authorities has been progressively reduced to the
point at which virtually all they officially retain are some of their judicial
powers.
❖ Since independence, the dual system of courts that came with integrating
customary courts within the hierarchy of modern courts introduced in
1934 has been retained.
❖ Whilst the customary courts retain their jurisdiction over customary law
matters and the modern courts apply the common law, the former, as in
the colonial days are subordinate to the latter.
❖ Although customary courts have their hierarchy, they all rank as the
lowest courts in the general hierarchy of courts and their jurisdiction
is almost limited only to certain civil matters.
❖ Customary courts play a very important part in the Botswana legal
system, and they probably deal with as many as 80% of criminal
matters brought before the courts., for the first time.
6. Law reports
❖ Law reporting in Botswana started during the colonial days. Botswana
cases until 1964 appeared in the High Commission Territory Reports.
The present Botswana Law
❖ The present Botswana Law Reports, the only law report in the country,
was started informally in 1964 by the Attorney-General’s Chambers.
❖ Because of a lack of trained personnel to undertake the task full-time,
there was a massive backlog of unreported cases, and the law report was
always several years behind.
❖ In 2003, the Attorney-General established a Law Reporting Reference
Group, made up of representatives from the Attorney-General’s chambers,
the judiciary, the Industrial Court, the Law Department of the University of
Botswana and the Law Society.
❖ This group was mandated to, among other things, establish a proper basis
for the selection of reportable judgments, recommend the judgments for
inclusion in the law report, develop guidelines for reporting cases, and
recommend the judgments to be reported.
❖ As a result of the hard work of this group, now known as the Law
Reporting Committee, the law reports are now almost up to date. Since the
reforms of the Attorney-General’s Chambers in 2005, a new division that
deals with law reporting has been established.
Online
❖ Common LII Databases
❖ High Court of Botswana
❖ Appeal Court of Botswana (1881+)
❖ Botswana Law Reports: 1964 to 1986: 15 Volumes
❖ Online Botswana Law Reports (for a fee)
❖ Printed Indexes to Botswana Case Law
❖ A cumulative subject index of the Botswana Law Reports 1964-1982: index to
decisions of the court of appeal and the High Court of Botswana.
❖ An index to selected Botswana criminal cases (1964-2002)
❖ The Southern African Legal Information Institute (SAFLII) now provides the most
comprehensive report of decided cases in several Southern African and some
Eastern African countries. It reports most of the cases decided by the High
Court and Court of Appeal and has the advantage over the Botswana Law
Reports that it reports far more cases and reports these cases within weeks
after they have been decided.
7. Legal Writing
❖ Different from other sources of law.
❖ Secondary sources.
❖ Original Literal work.
❖ In Arbi v Commissioner of Prison [1992] BLR 246. The court
cited the work of Professor Baxter
❖ Archibald v AG [1991 BLR 169, P 179.
8 others
International and regional laws.
a. United Nations conventions or Treaties and declarations
b. African Union Conventions and declarations.
c. ECOWAS, SADC.
CLASSIFICATION OR DIVISIONS
OF LAW
3. CLASSIFICATION OR DIVISIONS OR BRANCHES OF LAW
Law is divided into several broad categories for study or application.
For the study of business law, the notable classifications are:
❖ National Law and International Law.
❖ Common Law and Statute Law.
❖ Substantive and Procedural law
❖ Private Law and Public Law.
❖ Civil Law and Criminal Law.
National and International Law
❖ National law may also be referred to as municipal law
❖ It refers to law operating within the boundaries of each sovereign state.
❖ International law governing relations between sovereign states.
❖ It is also a law that regulates some international actors, such as the UN,
the WTO or the AU.
❖ Public international law is distinguished from private international law.
❖ Public international law is proper international law.
❖ Private international law operates within a domestic setting when a
choice must be made whether to apply a foreign law in a particular
situation.
❖ For example, if a Motswana orders an iPhone 15 phone from a Supplier
based in Dubai and pays the price quoted in US$ through a credit card, is
the contract a Botswana contract, a Dubai contract or an American
contract?
❖ Private international law is also called Conflict of Laws because it
presents this confusing choice between several legal systems.
Common Law and Legislation or statute law
Common law
❖ it’s a “body of law” based on court decisions rather than codes or
statutes.
❖ Is a body of unwritten laws based on legal precedents established by the
courts.
❖ They are not codified.
❖ Common law influences the decision-making process in unusual cases
where the outcome cannot be determined based on existing statutes or
written rules of law.
❖ the part of English law that is derived from custom and judicial precedent
❖ refers to the English system or the Dutch common law received in
Botswana.
❖ At the centre of common law is a legal principle known as stare decisis, a
Latin phrase that roughly means “to stand by things decided.”
❖ In practice, stare decisis is just an elaborate approach of saying that
courts and judges need to follow earlier decisions and rulings, otherwise
known as caselaw, when dealing with similar cases later.
❖ A precedent, known as stare decisis, is a history of judicial decisions
which form the basis of evaluation for future cases.
❖ Common law, or case law, relies on detailed records of similar
situations and statutes because no official legal code can apply to a
case at hand.
❖ Developed by Judges.
Statutes or Legislation
❖ are laws made by parliament or legislative bodies.
❖ regulations issued by government agencies and oral or customary
law.
❖ Statutes may originate with the legislative body of a country, state
or province, county, or municipality.
❖ They are codified.
❖ Substantive and procedural law.
❖ Substantive Laws that determine the actual rights of individuals. It
includes the rights and duties of litigants.
❖ They are created via a formal legislative process.
❖ Establishes the rules and regulations that govern society.
❖ They are written sources of law.
Substantive Law
❖ Law that defines the rights, duties, and obligations of citizens and
government and causes of action that can be enforced by law.
❖ Your conduct is governed by substantive law
❖ Is the content of the law.
❖ Examples include the right to own and protect property, entering into
contracts, and the rules of the road.
❖ Substantive law is the statutory or written law that defines rights and
duties, such as crimes and punishments (in the criminal law), civil rights
and responsibilities in civil law.
❖ It is codified in legislated statutes or can be enacted through the initiative
process.
❖ Divided into private and public law.
Procedural Law
❖ Procedural law or adjective law comprises the rules by which a court hears
and determines what happens in civil lawsuit, criminal or administrative
proceedings.
❖ Law that prescribes the methods of enforcing the rights and obligations of
substantive law.
❖ Ensures that all citizens are treated fairly.
❖ Ensures that neither the police nor courts act arbitrarily.
❖ Examples include proper procedures to gather evidence, requirements for
lawful arrest, and trial procedures.
❖ The rules by which a court hears and determines what happens in civil
lawsuits.
Private and Public Law
❖ Some of our laws are derived from Roman law.
❖ In Roman law, Private law was law regulating relationships between
citizens.
❖ Public law was law regulating the relationship between citizens and
the state.
❖ In this system, therefore, a contract or a marriage would be a private
law matter, but infringement of one’s fundamental rights would be a
public law matter.
❖ The private vs. public law dichotomy can be artificial in some
situations.
❖ What appears to be a purely private law matter, such as a contract,
may have public law implications.
❖ The University of Botswana, for example, may be required to comply
with public law procurement requirements, when it enters into a
contract to supply toilet paper or envelopes.
Civil and Criminal Law
❖ This is like the private and public law dichotomy.
❖ Civil law refers to the law that defines the rights and duties of
individuals towards each other.
❖ Criminal law deals with certain wrongs, known as offences, which are
punishable by the State, although the actual victim may be an
individual.
❖ As with the private and public law dichotomy, there may be overlap civil
law and criminal.
❖ The same conduct by an individual can lead to both a civil wrong and a
claim or a criminal case.
❖ An assault, for example, can lead to both civil cases and a criminal
case.
Civil Cases
❖ The language used to describe civil and criminal matters is distinct and
must be carefully noted.
❖ A civil matter involves an individual taking action against another,
claiming that the other has committed a wrong against him, and seeking
mainly compensation for the wrong.
❖ In the action, the person instituting the action, the Plaintiff, must prove
the Defendant’s liability on balance of probabilities.
❖ Balance of probability: in court cases, judges must determine the
existence of contested facts. The balance of probabilities, when a matter
is judged as a whole, is a reference to the likelihood of one party’s
version of events being more apparent (likely) to have occurred than not
(TNT Management Pty Ltd v Brooks (1979) 23 ALR 345). The evidence
adduced by both parties must be analysed by the trial of fact weighed up,
and a determination is made as to whether the party upon which bears
the onus of proof (a Plaintiff in a civil proceeding) has proved its case.
➢ A family case Re B [2008] UKHL 35, (Re means “In the matter of B) Lord
Hoffman answered that question using a mathematical analogy:
➢ "If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or
jury must decide whether it happened. There is no room for a finding that
it might have happened. The law operates a binary system in which the
only values are 0 and 1.
➢ The fact either happened or it did not.
➢ If the tribunal is left in doubt, the doubt is resolved by a rule that one
party or the other carries the burden of proof.
➢ If the party who bears the burden of proof fails to discharge it, a value of
0 is returned, and the fact is treated as not having happened. If he does
discharge it, a value of 1 is returned, and the fact is treated as having
happened."
➢ In another family case, In Re H (Minors) [1996] AC 563 at 586, Lord
Nicholls explained that it was a flexible test:
➢ "The balance of probability standard means that a court is satisfied an
event occurred if the court considers that, on the evidence, the event’s
occurrence was more likely than not.
➢ When assessing the probabilities, the court will have in mind as a
factor, to whatever extent is appropriate in the particular case, that the
more serious the allegation, the less likely it is that the event occurred
and, hence, the stronger should be the evidence before the court
concludes that the allegation is established on the balance of
probability.
➢ Fraud is usually less likely than negligence.
➢ Deliberate physical injury is usually less likely than accidental physical
injury.
➢ A stepfather is usually less likely to have repeatedly raped and had non-
consensual oral sex with his underage stepdaughter than, on some
occasions, to have lost his temper and slapped her.
➢ Built into the preponderance (predominance) of the probability standard
is a generous degree of flexibility concerning the seriousness of the
allegation.
➢ Although the result is much the same, this does not mean that where a
serious allegation is in issue the standard of proof required is higher.
➢ It means only that the inherent probability or improbability of an event is
itself a matter to be taken into account when weighing the probabilities
and deciding whether, on balance, the event occurred.
➢ The more improbable the event, the stronger must be the evidence that it
did occur before; on the balance of probability, its occurrence will be
established."
❖ The plaintiff must show that it is more likely that the defendant who
committed the wrong complained of. This is a lower burden of proof than
that applicable in criminal cases.
❖ The parties to a civil case are described at first instance as Plaintiff v
Defendant or, on appeal, Appellant v Respondent.
❖ The course outline is replete with references to civil cases.
Criminal Cases
❖ Criminal cases is initiated by the State. Thus, they are cited as The
State v Modimo, or, on appeal, Modimo v The State, or Crawley v Rex
in the course outline.
❖ A crime is essentially an offence against the State.
❖ The offender is charged with the offence, which must be clearly spelt
out in the Penal Code or some other law.
❖ The case is led on behalf of the State by a Prosecutor, who must
satisfy the court that all elements of the offence committed.
❖ The case must be proved “beyond reasonable doubt.”
➢ Reasonable doubt refers to insufficient evidence that prevents a judge
or jury from convicting a defendant of a crime.
➢ It is the traditional standard of proof that must be exceeded to secure
a guilty verdict in a criminal case in a court of law.
➢ Beyond a reasonable doubt is the legal burden of proof required to
affirm a conviction in a criminal case.
➢ In a criminal case, the prosecution bears the burden of proving the
defendant is guilty beyond all reasonable doubt.
➢ This means that the prosecution must convince the jury or court that
no other reasonable explanation can come from the evidence
presented at trial than the one presented by the prosecution.
➢ In other words, the court or jury must be virtually certain of the
defendant’s guilt to render a guilty verdict.
➢ This standard of proof is much higher than the civil standard, called
“preponderance of the evidence,” which only requires a certainty
greater than 50 percent.
❖ If there is any doubt as to whether the accused committed the
offence, he/she must be acquitted.
❖ If this higher standard of proof is satisfied, the accused must be
convicted and punished in the manner specified for the offence.
❖ The objective of a criminal prosecution, therefore, is to deter criminal
conduct through punishment of offenders.
❖ The punishment may be in the form of a fine and/or imprisonment.
STRUCTURE OF THE COURTS
IN BOTSWANA
Structure of the courts in Botswana

COURT OF APPEAL

INDUSTRIAL COURT HIGH COURT

SUBORDINATE COURTS CUSTOMARY COURTS SPECIAL COURTS

CHIEF MAGISTRATE CUSTOMARY COURT COURT MARTIAL

COMMISSIONER

PRINCIPAL MAGISTRATE CUSTOMARY COURT LAND TRIBUNAL

OF APPEAL

SENIOR MAGISTRATE CUSTOMARY COURT JUVENILE COURT

MAGISTRATES HEADMAN TRAFFIC

GRADES I, II, III OFFENCES

SMALL CLAIMS

FAMILY
THE COURTS IN THE REPUBLIC
❖ The courts in Botswana are divided into superior and subordinate
courts.
❖ The most important superior courts are the Court of Appeal and the
High Court.
❖ The Industrial Court is also classed as a superior court because appeals
from this court are directed to the Court of Appeal.
❖ The most important subordinate court is the magistrate’s court.
❖ The Courts in Botswana are administered by the Administration of
Justice Act, with the Chief Justice as its administrative head.
The hierarchy is as follows
1. Court of Appeals.
2. High Courts.
3. The Magistrate Courts, and
4. Customary Courts.
This structure depicts the dual legal system
❖ The first 3 Courts administer the common Law and Statute
enacted by the legislature
❖ The Customary Court deals with customary Law
❖ Superior courts are the Court of Appeals
❖ While the lower courts are Magistrate and Customary courts:
• An inferior court (for example, a Magistrates Court or Local Court)
has limited jurisdiction over smaller, summary matters with a
lower monetary threshold than the intermediate courts of each
state and territory.
• a court of limited jurisdiction, and it must appear on the face of
its proceedings that it has jurisdiction, or its proceedings will be
void.
• refer to courts that are below the highest court in any
jurisdiction.
1.Court of Appeal
❖ Regulated by sections 99-100 of the constitution
❖ Court of Appeal act
❖ The Court of Appeal is the apex Court, the highest and final court in the
land.
❖ The Court is the final arbiter of all legal matters in Botswana.
❖ The Court hears appeals from both the High Court and the Industrial
Court only on matters of legal interpretation
❖ The Court of Appeal sits at Gaborone
Composition of the Court
❖ President and number of justices prescribed by the parliament.
❖ The Chief justice and other judges of the high court.
❖ Section 4 of the Court of Appeal Act provides that the president of
Botswana can appoint several justices that is fit for the court of appeal.
Jurisdiction
❖ Hearing and determination of appeals
❖ Has all the power of the High Court
❖ It’s mainly an appeal court without original jurisdiction
❖ But the high court may reserve some cases for the court of Appeal to
determine, in Botswana Railways Organisation v Setsogo and Others
Appeals as rights
❖ Section 106 of the Constitution and section 10 of the Court of Appeal
Act enumerated circumstances when an appeal can go to the Court of
Appeal.
❖ This court has power over criminal and civil cases
❖ Appeals in criminal cases is provided for in section 12(1) of Court of
Appeal rules
❖ Powers of Court of Appeals in criminal cases enshrine in Section 13 of
the Court of Appeal Act
❖ Consider an Appeal against convictions.
2. The High Courts
❖ This court lies between the Magistrate Court and the Court of Appeal.
❖ Established as a superior court of record with unlimited original jurisdiction
to hear and determine any criminal and civil cases under any law.
❖ It is therefore open for cases of all types, from family matters to Criminal
matters.
❖ The Constitution creates the High Court as an Appeal Court.
❖ Currently, there are four High Court divisions; the main one is the
headquarters at Gaborone, one in the southern region at Lobatse, the other
in Francistown in the northeastern part and Maun in the northwest of
Botswana.
Composition of a High Court
❖ Section 95 (2) of the Constitution, the High Court is made up of a Chief
Justice and other judges as prescribed by Parliament
❖ The High Court Amended Act has raised the number of Judges from 15 to
30. Currently, 27 judges have been appointed.
❖ One judge sits at a time.
❖ But in certain matters, the justice can appoint more than one judge to sit.
Jurisdiction
❖ Can sit over a wide range of matters.
❖ Section 95 (1) gives unlimited original jurisdiction to hear civil and
criminal matters. In Botswana Railways Organisation v Setsogo and
Others, it is whether a lower court has a limited jurisdiction or not.
You can still seek redress at the High Court.
❖ In Mafokate v Mafokate [2000] 2 BLR 430. The High Court had to
decide whether it had the power to dissolve a customary marriage.
The high court concluded that by virtue of the unlimited original
jurisdiction. The HC can do so.
Power to hear appeals
❖ Can sit over appeals from a Magistrate and Customary Courts.
Section 10 of the High Courts Act. Section
Appointment and removal of Judges
❖ s96-97 of the constitution of Botswana
3. Magistrate Courts
Governed by the Magistrate Courts Act of 1974
❖ Magistrate’s courts is creation of statute, the Magistrates Courts Act, as
subordinate courts.
❖ They are subordinate to the High Court and are therefore controlled and
supervised by the High Court through reviews and appeals.
❖ In 1966, there were only two magistrate courts in the country, one in
Lobatse and the other in Francistown.
❖ However, the growth and development of Magistrate Courts has been
phenomenal. Today, the courts operate in 25 different centres around the
country.
❖ These courts handle a large percentage of litigation in the country.
❖ Currently, there are 50 magistrates in the country.
The following services are available at the Magistrate Courts:
❖ Family-related cases such as paternity and alimony orders.
❖ Adoption of children.
❖ Restraining orders in domestic violence cases.
❖ Civil suits; here, individuals sue others for non-payment of debts,
breach of contracts, etc.
❖ Criminal trials- Magistrates Courts hear the bulk of criminal cases.
Family-related
Grades of Magistrate
Regional Magistrate:
❖ Civil jurisdiction; damage to property not greater than P40000.00.
❖ Ejectment of occupier not exceeding P100000.00.
Criminal Jurisdiction s 61 Magistrate Amendment Act.
❖ Sentence not more than 20 years or P100,000.00.
Chief Magistrate;
❖ Civil jurisdiction, same with Regional Magistrate.
❖ Criminal Jurisdiction: same as Regional.
Principal Magistrate
❖ Civil jurisdiction, same as chief Magistrate, cannot exceed P80000.
❖ Criminal Jurisdiction: not more than 15 years, not more than P80000 or
both.
❖ 10 strokes of cane.
Senior Magistrate
❖ Civil maximum P70000.
❖ Criminal cases 12 years imprisonment, P70000.00.
❖ Nine strokes of whipping.
Magistrate Grade I
❖ Civil claims P60 000.00.
❖ Criminal cases: 10 years in prison and P60,000.00
❖ 7 strokes of cane
Magistrate Grade II
❖ Civil cases P50, 000
❖ Criminal cases 7 years in prison or a P50,000 fine
❖ 5 Strokes of whipping
Magistrate Grade III.
Civil Claims P 40,000
Criminal cases, 5 years imprisonment and/or with a P40,000 fine or
both.
4. Customary Courts and Kgotla (tribal courts)
Customary Law Act
Types
❖ Informal and unofficial.
❖ Formal or Official established by the Minister of Local Government.
➢ Higher Customary court or Customary court of appeal" means a court
established under section 41.
➢ Lower customary court means a court that is presided over by a
Kgosana
Composition of the court
❖ "higher customary court" means a court that is presided over by a:
➢ Kgosi;
➢ Mothus Kgosi;
➢ Moemela Kgosi;
➢ Court President; or
➢ Deputy Court President;
❖ Lower customary court
➢ Kgosana.
Jurisdiction
Civil;
Criminal: cannot try offences outside the Penal Code and other laws. In
Bimbo v The State, the customary court convicted the accused of
adultery. The High Court declared the conviction invalid even though it is
known to customary law.
Appeals;
❖ Lower to higher customary court and customary courts of Appeal
within 30 days.
❖ Higher customary court to Customary court of appeal.
❖ Customary Court of Appeal to High Court.
The minister and his appointees supervise customary courts.
Courts of appeal
Section 41 Customary Courts Act.
❖ (1) The Minister may, by warrant under his hand, appoint customary courts
of appeal to hear and determine such cases as he specified in the warrant.
❖ (2) A customary court of appeal may sit with assessors whenever the
court deems it necessary to do so.
❖ (3) A customary court of appeal shall consist of three persons, of whom
one shall be appointed by the Minister to be the president.
❖ (4) The Minister may, by warrant under his hand, appoint a panel of three
other persons to be alternate members of each customary court of appeal.
❖ (5) Where because of illness or absence out of the country or because of a
personal or pecuniary interest in the matter or thing a member of a
customary court of appeal is unable to attend a sitting of the court, the
president of the court may nominate a person from the panel of alternate
members to sit in place of the absent member, and such alternate member
shall be a member of the said court until the member in whose place he
was appointed to sit can resume his seat.
Tribal Court (Kgotla)
❖ is a Botswana village's public meeting, community council, or traditional
law court.
❖ Presided over by the village chief or headman and community.
❖ Decisions are always arrived at by consensus.
❖ All civil and criminal cases that fall within the tribal court’s warrant
jurisdiction may be tried at the customary court or Kgotla, as may be
agreed to by the accused or defendant.
❖ A list of offences that the tribal court (kgotla) addresses can be accessed
at any Kgotla office.
❖ Any person or business legally present and operating in Botswana is
eligible for this service.
The steps involved in this process are as follows:
❖ Civil matters must be reported to the Kgotla directly.
❖ The complaints will be registered, and a date will be set for the hearing of
their cases, where both the plaintiff and the defendant should be present
before the Kgosi for the matter to be solved.
❖ Criminal matters must be reported directly to the Botswana Police.
❖ The police would then determine whether the case should be tried at
the customary or magistrate court and advise accordingly.
Supporting documents are required.
➢ A valid National Identity Card (Omang or passport).
➢ Residence Permit (expatriates).
➢ Business registration documents (businesses).
➢ Tax clearance certificate (if payment must be received).
❖ The length of the proceeding differs but depends upon the case
under trial.
❖ The services here are free.
❖ Visit any ward Kgotla or main Kgotla in the nearest area.
SPECIALIST COURTS IN BOTSWANA
SPECIALIST COURTS IN BOTSWANA

1. Small claims courts;

2. Stock Theft Courts;
3. Family Courts
4. Traffic courts;
1. SMALL CLAIMS COURT;
Regulated by Small Claims Courts Act 2009
❖ The Small Claims Court operates in the Magistrate courts of Botswana
and has limited powers as prescribed by the Act.
❖ The court proceedings are open to the public but may be held in private (in
camera) for confidentiality or other special circumstances.
❖ This court is only open to natural persons (not available to corporations)
except as defendants or counter-claimants.
❖ The objective of the Small Claims Court is to provide simplified procedure
and allow access to justice for those without the means to engage
lawyers for claims that are within the court’s powers.
❖ Pilot centres were in Francistown and Gaborone in August 2009.
❖ Objectives are to grant access to court to the less privileged by cutting
down costs and complex court procedures.
❖ The only cost is that of serving and execution of documents by the
sheriffs.
❖ Bailiffs were employed for service and exaction of documents to cut down
costs.
❖ Presided over by a Magistrate with more than four years of experience
assigned for that purpose.
Jurisdiction;
❖ Over persons living in the locale where it is situated.
❖ Payments, delivery or transfer of money owed.
❖ Claims related to property, moveable or immovable.
❖ The Small Claims Courts' jurisdiction is limited to a maximum of BWP
10,000.00.
❖ Must not exceed P10000.
The court cannot sit over the following matter.
• Claims were brought against the state or a public officer in his capacity as
a public officer s11(4) Small Claims Courts Act.
• claims brought in terms of customary law.
• cases in which an interdict or specific performance is required.
• family issues.
• S7 Small Claims Courts Act, Prohibits lawyers.
• If your claim requires a lawyer, that case must be filed at a regular
magistrate court.
❖ Cases must be decided on the same day.
❖ Cases that will take more than a day must be filled in a competent court
❖ Rules of evidence do not apply
❖ Presiding officer to ascertain relevant facts
❖ Judgment is final. No appeal
❖ Appeals on lies to the high court based on lack of jurisdiction and gross
irregularity
Key characteristics of the small claims court:
❖ The atmosphere in the court is relaxed and informal.
❖ The proceedings are conducted in any of Botswana’s official languages.
❖ Lawyers are not allowed to represent parties in that court.
❖ The court may allow or call additional witnesses (es) to give evidence.
❖ Interpreters are provided for those who do not understand any official
language used in court.
❖ If a plaintiff cannot prepare their documents, the court clerk is available to
assist.
❖ Strict rules of evidence do not apply in the court, and cases before the court
must be completed in one sitting.
❖ The order of the court is final and cannot be appealed against but can be
reviewed because the High Court did not have jurisdiction over the matter.
How to access the services of the court
❖ An individual can file a claim in the Small Claims Court by applying either
the Gaborone Extension II or Francistown Magistrate Court.
❖ To serve a standard letter of demand to the party you wish to take to
court.
❖ The letter should set out your claim and demand that it be settled within
14 days, failing which action will be instituted against the defendant
(Letter of Demand - Form 1).
❖ The opposing party has 14 days to respond. If no payment is made after
14 days, the applicant approaches the court to obtain a Summons form
(Summons Form 2) on which the Magistrate will set the case for hearing.
The Summons form will also include particulars of the claim:
❖ The nature and amount of the claim.
❖ The defendant’s full name, place of residence and place of business or
employment.
❖ The interest, if any, shall not exceed 10 per cent per annum and the
amount claimed up to the summons date.
❖ Any abandonment of any part of the claim.
❖ The applicant must then arrange to serve the summons form to the
defendant.
❖ The plaintiff shall return a copy of the summons and an affidavit of service
(Part III of Form 2) to the clerk of the Court within three days of serving
the defendant.
❖ If the defendant satisfies the claim by paying, the plaintiff will withdraw
the action (Notice of Withdrawal-Form 7). The plaintiff may also withdraw
the claim if he accepts the defendant’s counteroffer.
❖ If an order in the Small Claims Court is provided against the defendant and
the defendant fails to comply, the applicant applies to the Clerk of Court to
issue a writ of execution (Writ of Execution - Form 8).
❖ The Clerk instructs the Deputy Sheriff to serve and enforce the writ of
execution. The Deputy sheriff will demand payment of the debt on behalf of
the plaintiff, with the authority to seize and sell property.
❖ The Deputy Sheriff will provide the plaintiff with the proceeds of any
petition or sale of the property of the defendant after the execution.
Supporting documents are required
To submit a claim, a plaintiff will need to submit items one and two below, and
potentially items three and four:
❖ Letter of Demand (Form 1)
❖ SUMMONS (Form 2)
❖ Withdrawal (Form 7)
❖ WRIT OF EXECUTION AND EJECTMENT (Form 8)
The plaintiff will also need to provide any documents, letters, contracts or other
items forming evidence for their claim.
Length of cases
❖ A case in the Small Claims Court typically takes about three (3) months.
Cost of litigation
❖ There are no fees directly associated with this service.
❖ The Deputy Sheriff may charge the plaintiff a fee of up to BWP30.00 to serve
documents to the defendant.
2. Stock Theft Courts
Governed by the Stock Theft Act Cap 09:01
❖ Botswana is a cattle country whose economy depends on the meat
industry.
❖ Batswana also depends on livestock for their livelihood.
❖ Stock theft, therefore, affects the economy of the country and the
livelihood of Batswana.
❖ to fight stock theft in the country, the Administration of Justice has
established Specialized Stock Theft Courts in the most affected parts of
the country to deal with cases involving stock only.
The courts, which were launched in August 2009
are now operating in the following stations:
❖ Francistown Magistrates Court.
❖ Letlhakane Magistrates Court covers the whole of the Boteti region.
❖ Mochudi Magistrates Court.
❖ Molepolole Magistrates Court caters Kweneng region.
❖ Selibe Phikwe Magistrates Court to cover Mmadinare, Serule and Bobirwa
areas
❖ Palapye Magistrate Court covers Tswapong, Mahalapye and Serowe areas
❖ Jwaneng Magistrates Court takes care of Southern Kgalagadi and Gantsi
❖ Cases are completed swiftly by specialised courts when the exhibits
are readily available.
Jurisdiction
❖ stock theft
❖ The courts sit where the offences were committed and are accessible
to members of the public.
❖ The public is free to attend and witness justice being done.
❖ Mobile court.
❖ Magistrates sit over matters.
3. Family Courts
❖ family matters except divorce.
❖ Deals with family matters except for divorce.
❖ Jurisdiction Magistrate Court Act.
Jurisdiction
➢ Disserted wives.
➢ Children in need of protection.
➢ Adoption and maintenance.
➢ Conditions are more relaxed.
➢ Applies Children’s Act and Affiliation Proceeding Act.
4. Traffic courts;
Over speeding and traffic offences.
❖ Traffic offences
❖ Road Traffic Act
❖ Maned by a magistrate
❖ Govern by magistrate’s court rules
❖ Located in Gaborone, Francistown and Mochudi
COURTS OF SPECIAL
JURISDICTION
Courts of Special Jurisdiction
❖ The Industrial Court
❖ Courts Martial
❖ The Land Tribunal
❖ Juvenile Courts
❖ Small Claims Court
A. The Industrial courts
❖ To settle disputes in a working relationship.
❖ Trade Dispute Act 2004 empowers the court with authority and rights to
settle trade disputes and secure and maintain good industrial relations in the
country.
Composition of the Courts
❖ One or more divisions are determined by the Ministers of Labor and Home
Affairs, and each division is headed by a Judge.
❖ The President appoints the Judges at his discretion.
❖ Judges sit with two (2) assessors; he picks one from amongst individuals
nominated by the organisations representing employees and trade unions in
Botswana.
❖ He selected the other from amongst the persons nominated by the
organisation representing the employers in Botswana.
❖ Retirement age is 70 years; this could be extended to enable him to
complete a judgment.
Jurisdiction
Possess jurisdiction over all matters provided for in the Trade Dispute Act
and the following matters:
❖ Matters under the Trade Dispute Act, but the court must adjudicate over
the following matters:
➢ Hear and determine all trade disputes except disputes of interest.
➢ Interdict any unlawful industrial action.
➢ Hears appeals and reviews from the decisions of mediators and
administrators.
➢ Give all such directions and to all such things as may be necessary or
expedient for the expeditions and just hearing and determining any
dispute before it.
❖ Cases are referred either by the Commissioner of Labour or by a labour
officer delegated by him or the minister. This power is limited to disputes
referred to him and if he is convinced that a dispute exists.
➢ Subject to section 9(1)(b) the dispute must be for essential services; or
➢ If the Minister believes that the dispute will affect essential lives or
livelihood of the citizens, affect a group or may endanger public safety and
or the life of a community or
➢ Disputes affect members of management.
❖ The court only intervenes after ADR has failed.
❖ In Mmeseletsi v Car World (Pty) Ltd. [2008] 2 BLR 442. The Industrial
court held that a dispute was only properly before it if the Labour
officer had validly issued a certificate of failure to settle as provided
by s8 (10) & (11) of the Trade Dispute Act.
B. Courts Martial
❖ Established to exercise jurisdiction over members of Botswanan Defend
forces. Section 172 of the Botswana Defence Force Act.
Composition
❖ A Court-martial may be convened by the Commander of Botswana
❖ Defence force or by any officer not below the field rank authorised
❖ by the commander. Consist of
❖ Presiding officer and not fewer than two other officers
❖ In cases where maximum punishment will be imposed e.g. death
sentence. There will be the presiding officer and not less than four other
officers.
❖ Only defence force officers are appointed to serve in the court for two
years.
❖ Two of the members shall be lower (rank) than that of captain.
❖ A Judge advocate is appointed to assist the courts on law and procedure
s81 (3) Botswana Defence Act.
❖ Duties spelt out in sections 79 and 80 of the Botswana Defence Act
❖ The judge sums up the evidence.
❖ Making fair comments was required.
❖ Advising the court on applicable law.
❖ Solomon v State, they thought the advocate judge had usurped the court's
function by commenting on the state's evidence in such a way that it left
the members with no choice but to convince the accused. The High Court
held that the Judge Advocate can comment on evidence fairly.
Nevertheless, leave the decision to the jury. The court held that the
advocate did not usurp the jury’s authority. The judge is not permitted to
pass judgment and sentence.
Jurisdiction
❖ Exercises jurisdiction over persons and offences specified in Botswana
Force Act.
❖ This includes:
➢ Aiding of the enemy.
➢ Coward behaviour.
➢ Looting.
➢ Mutiny is an open rebellion against the proper authorities, especially by
soldiers or sailors against their officers.
➢ Desertion.
➢ Civil offences
➢ Violation of Penal code offences.
❖ Rules of procedure and evidence is the same with those of the ordinary court.
❖ Decisions are by majority votes of the members of the court.
❖ Where there is equality of votes, the court is enjoined to acquit the suspect.
❖ If the punishment is death, all must agree to it.
❖ If there is no unity in agreement. The court must be dissolved, and a new one
must be established to try the accused.
❖ Where there is a tie-in vote, the presiding officer can cast a second vote.
❖ Decisions are subject to the commander’s confirmation; without the
confirmation, the decision cannot be final.
❖ Before an accused can seek review of the courts decision he must have
exhausted all internal remedy.
❖ Hence, in Motupu v Commander of Botswana [2010] 1 BLR 194, the applicant
requested a review of the court and a discharge after a conviction. The court
held that they had not exhausted all legal remedies.
A. Land Tribunal
❖ Established by the Minister of Local Government, Lands and Housing order.
❖ Under the provision of section 40 of the Customary Law Act 51 of 1969 as
amended.
Composition
❖ Headed by a Chairman appointed by the Minister.
❖ Must be an Advocate or Attorney Five years post call to Bar and above.
❖ Employed in public service.
❖ Two other persons appointed by the minister must be suitably mature,
qualified, knowledgeable, and educated at least to Cambridge School
Certificate Level.
❖ In addition, the land board selection committee may co-opt two additional
persons to the hearing amongst suitably mature, qualified and knowledgeable
from the district within the jurisdiction of the land dispute or where the
matters in dispute are situated.
❖ The tenure of office is 3 years and is renewed for another two years.
Jurisdiction
❖ Hears appeals from land boards concerning disputes over land ownership and
land rights.
❖ Has exclusive jurisdiction over all matters brought before him concerning land
ownership and rights.
❖ In Mogagwaza Family and another v Kweneng Land Board & Another [2002] 1
BLR 254, the high court determined that it cannot hear appear directly from the
Land Board. But only appeal on the question of Law from the Land Tribunal.
❖ Land tribunal is not bound by the rules of evidence and civil procedure
applicable in Civil and criminal proceedings.
❖ They may disregard any technical irregularities that may not lead to a
miscarriage of Justice.
❖ The chairman exclusively determines questions of Law, while the other
members determine facts.
❖ Proceedings are held in public.
❖ Advocates or Attorneys might represent parties.
❖ Land Tribunal cannot delegate their powers to other bodies.
❖ Appeals is to the high court.
❖ Appeals must be lodged eight weeks after the Land Tribunal’s decision is
delivered.
D. Juvenile Court
❖ It’s a magistrate’s court or customary court sitting for a hearing or hearing a
charge against a juvenile or exercising any other jurisdiction conferred on a
juvenile court by or under this Act or any other law. It only has jurisdiction to
hear and determine any charge against a person between the ages of seven and
18.
❖ Established for the trials of young offenders under section 22(1) Children’s Act
1981 now Children’s Act 2009.
COMPOSITION
❖ Made of a Magistrate assigned by the chief justice.
❖ Assisted by a juvenile court assistant assigned by the Attorney-General
❖ The purpose of the composition is to decriminalise the juvenile court
proceeding and make it feel less harmful and discriminatory when the juvenile
appears before the court.
❖ Only certain persons are required in court. These are;
➢ Officers and members of the court.
➢ The juvenile is concerned, as well as their parent or guardian.
➢ Social worker concerned in the case.
➢ Probation officer.
➢ Such other person allowed by the court.
➢ It is informal to remove the intimidation aspect of the regular court trial.
Jurisdiction
❖ Try cases of offenders between 7 and 18 years.
❖ Separate trial from co-accused offender who is older than 18.
❖ Names of juveniles are not publicized; they cannot be published in their
photos.
❖ Types of cases are not specified.
❖ Section 37 of the 2009 Children’s Act addresses offences tried at the
children’s court.
❖ Any person who believes a juvenile has committed a crime can complain to
the child welfare commissioner.
❖ Section 39 of the 2009 Children’s Act deals with the sitting of the
children’s court.
❖ Sections 81-96 of the 2009 Children’s Act deal with children in conflict with
the Law.