MODULE PROFILE

Programme DIPLOMA IN TRANSPORT AND LOGISTICS

Module Title & Commercial Law ( DHR 1201)

Code

Module MS PERVIA
Tutor/Lecturer

Credit Points 12

Pre Requisites NONE

Module Objectives This module seeks to introduce the basic principles and concepts of
Commercial Law. The Objective is to give a broad overview of the
Commercial Law in Botswana to enable the students identify and
appreciate the significance of legal issues in various factual situations.

Module Learning After studying this module learners should be able to:
Outcomes
1. Appreciate what constitutes a legal contract at law
2. To build an appreciation of what constitutes a sale in the legal
senses; and to analyse the rules governing ownership and
delivery in sale agreements
3. Articulate the nature of lease agreements and its essentials
4. To examine the score of authority of an agent and also to
scrutinize the duties of the principal and Agent.
5. To appreciate an employment contract as well as the labour
relations at the workplace

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Assessments: Test –
Assignment 1 –
Assignment 2 –
Mid-Semester Examination –
Final Exam -

Content/Topics 1. Nature of law

 Common Law and Civil Law
 public law and Private law
 civil law and criminal law
 national law and international law

1.2. Functions of Law

 Maintenance of Social Order.
 Protection of Individual Rights.
 Settlement of Disputes.
 Regulation of transactions

1.3. Sources of law

 Constitution –
- Principle of Supremacy of constitution-Attorney General v
Unity Dow (BLR)
 Customary Law – Common Law and Customary Law Act
(Cap 16:01); Sections 2 and 4 Customary Courts Act
 Common Law- Roman dutch and English common law
(Doctrine of Stare Decisis/ principle of binding precedent- ratio
decidendi; obiter dictum)
 Legislation – Section 86 Botswana Constitution

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1.4. Hierarchy of the Courts
1.4.1. Superior courts:
 Court of Appeal –Section 99-100 Botswana
Constitution; Section 10 Court of Appeal Act
 High Court –Section 95 Botswana Constitution

1.4.2. Inferior/ subordinate courts

 Magistrate Courts –Section 17 Magistrate Courts Act as
amended
 Customary Courts- Common law and Customary Law Act;
Customary Courts Act

1.4.3. Courts of Special Jurisdiction:

 Juvenile Courts-Section 22 Children’s Act Cap 28:04
 Land tribunal- Section 40 Tribal Land Act
 Court Martial
 Small Claims Court

2. Introduction to the Law of Contract

 Definition of Contract
 Doctrine of Freedom of Contract.
- Balfour v Balfour (1919) 2 KB 571

2.1. Essential elements of a Valid contract:

 Consensus
 Capacity to act
 Juridical possibility
 Physical executability
 Formalities

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2.1.1. Consensus

 Offer– Crawley v Rex 1909 TS 1105; Fisher v Rex; Carlill v

Carbolic Smokeball
 Acceptance Green Acres Farm (Pvt) Ltd v Haddon Motors
(Pvt) 1983 (1) ZLR 17; Meswele Investments (Pty) Ltd T/A
Oasis Motel v. Attorney-General 1985 BLR370 (HC);
Barclays Bank Of Botswana v. Modibedi 2010 3 BLR 814 HC

2.2. Factors Vitiating a contract

2.2.1. Misrepresentation
 fraudulent;
 negligent;
 innocent
2.2.2. Duress-Steiger v Union Government 1919NPD 75
2.2.3. Undue Influence –Preller v Jordan 1956 (1) SA 483 (A)
2.2.4. Mistake-Smith v Hughes (1871) LR 6 QB 59
 Unilateral mistake – Maritz v Pratley (1894) 11 SC
345
 Common mistake
 Iustus error-George v Fairmead (Pty) Ltd 1958 (2)
SA 465 (A)

2.3. Void and Voidable contracts

2.3.1. Capacity
 Minors - Edelstein v Edelstein NO 1952 (3) SA 1 (A)
 Mentally ill persons-Pheasant v Warne 1922 AD 481; Lange v
Lange 1945 AD 332
 Drunken persons
 Prodigals
 Insolvent person –Insolvency Act (Cap 42:02)
 Married Women –in community of marriage (Abolition of
Marital Powers Act 2005); Out of community of marriage
(Sections 3 and 4 Married Persons Property Act Cap 29:03)
 Company- Companies Act 2003

2.4. Breach
 Default by debtor
 Default by Creditor
 Positive malperfomance

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 Repudiation
 Prevention of performance

2.5. Remedies for breach

 specific performance;
 interdict;
 cancellation;
 damages

2.6. Termination of Contract

 Effluxion of time (prescription);
 death;
 performance,
 counter offer agreement,
 insolvency,
 set off

3. Contract of sale
 Naturalia, Essentialia
 Rights and Duties
 Forms of Delivery
 Representation:
- Latent Defects - Bonang v Motsomi 2007 (3) BLR 671 (HC)
- Misrepresentation and Fraud- Sisya v Frontline Investments Pty
Ltd T/A Frontline Couriers 2008 3 BLR 16 HC
- Mistake

4. Contract of Lease
 Naturalia, Essentialia,
 Rights and Duties

5. Employment contract
 Nature of the Employment contract
 Rights and duties of the parties of employer
 Rights and duties of the parties of employer

6. Law of Agency
 Nature of Agency contracts, definition
 Authority by the principal
- Express
- Implied by law

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 - Implied on facts
- Ostensible
- Ratification
Khama v. Debswana Diamond Co (Pty) Ltd 2000 (1) BLR 31 (HC)

 Duties of Agent
Sisya v Frontline Investments Pty Ltd T/A Frontline Couriers 2008 3
BLR 16 HC

 Duties of Principal
 Termination of Agency contracts

7. Forms of Business Organisation

 Sole proprietorship
 Company- Salomon v Salomon
 Partnership
 Close company
 Syndicates

Assessment The student will be assessed on the basis of Continuous Assessment

and the final examination. The allocation of marks will be as follows:

• Continuous assessment – 40 %

• Final examinations – 60%

For students to be eligible to sit for final examinations they should

meet all of the following requirements:

i. Must attend a minimum 75% of scheduled lessons

ii. Must submit the requirements of all components of continuous

assessment as follows:

a. 2 Assignments - 14%

b. 1 Test 13%

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 c. Mock Examinations - 13%

Student will be informed where assessment for modules uses different

criteria.

Required PRESCRIBED READING:

Resources 1. Fombad C.M and Quansah E. K., Introduction to the Botswana
Legal System.
2. Havenga P, General Principles of Commercial Law 7th ed
(2010)
3. South African Mercantile & Company Law by JTR Gibson;
RG Comrie; C Visser; JT Pretorious; R Sharrock and Carl
Mischke
4. Commercial Law : Nagel & Others 4rd Edition 2011
5. Law Reports and/or Journal articles available in the Law
Library and per electronic databases.

RECOMMENDED/ADDITIONAL READING:
1. Cheshire, Fifoot, Fumstone. Law of Contract, 14th ed 2001
2. Treitel. The Law of Contract, 13th ed 2011.
3. Bill of Exchange Act
4. Insolvency Act
5. Companies Act 2003

It is advisable that students consult only the most recent editions of the
books in the reading list.