The Botswana Customary Law Act, 1969

Author(s): C. M. G. Himsworth
Source: Journal of African Law , 1972, Vol. 16, No. 1 (1972), pp. 4-18
Published by: School of Oriental and African Studies

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 THE BOTSWANA CUSTOMARY LAW ACT, z969
BY C. M. G. HIMswoRTH

Prior to 1969 the legal system of Botswana enjoyed the characteristics of

the dual existence of customary and common law (and the courts in which
they were administered) typical of most of Anglophone Africa. The common
or general law was the Roman-Dutch law "received" from the Colony of
the Cape of Good Hope1 and this was the only law to be applied in the
ordinary courts (High Court2 and Subordinate Courtss) in the exercise of
their original jurisdiction. Customary law was the preserve of the customary
courts.4 Three main questions were inherent in the working of this system:
(I) How was it to be determined which-system of law (and, therefore,
which system of courts) was appropriate for deciding a particular case ?
(2) If it was decided that customary law was to be applied, which system
of customary law was appropriate ?
(3) Again, if customary law was to be applied, how were its rules to be
ascertained in the courts?
The Customary Law (Application and Ascertainment) Act of I9695
appended to this article, introduced far-reaching changes in the admin-
istration of the dual legal system and in particular contained for the first time
statutory answers to the questions posed above.
Sections 3 to 5 are concerned, with the general rules as to whether custom-
ary law or the common law is to be applied and are followed in sections 6 to
9 by further rules as to certain special types of case. Section Io deals with the
question of choice between different systems of customary law whilst sections
xx and 12 are concerned with the ascertainment of customary law in the
courts. All these sections are sandwiched between sections I and 2 (Short
Title and Interpretation) and section I3 (Saving of existing laws). The date
of commencement prescribed for the Act was August 22nd, 1969.
It is proposed in this article to discuss the provisions of the 1969 Act and
also to consider the questions (perhaps inevitable in legislation of this nature)
which the Act itself raises.

APPLICATION

We must first consider the sections concerned with the general rules
relating to the choice of law, starting with section 3 which sets out the
primary rule that "the courts of Botswana shall . .. apply customary law
. . . [where] by virtue of the provisions of this Act, or any other law, custom-
ary law is properly applied and where it is not properly applied such courts
shall apply the common law". The two types of law are defined for the
purposes of the Act in the interpretation section (section 2).
" 'Customary law' means, in relation to any particular tribe or tribal
community, the customary law of that tribe or community in so far as it is not

1 Proclamation No. 36 of 1909, s.2.

2 High Court of Botswana Act, 1967.
3 Subordinate Courts Proclamation, cap.5.
4 African Courts Proclamation, I96I.
5 No. 51 of 1969.

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 Vol. 16. No. i Botswana Customary Law Act, 1969 5
incompatible with the provisions of any written law or contrary to mo
humanity or natural justice.' 'Common law' means any law, whether w
or unwritten, in force in Botswana, other than customary law."2

The meaning and value of such phrases as "contrary to morality, hum

or natural justice" have been much discussed elsewhere,3 and it is
proposed to contribute further to that debate here. Suffice it to say th
may doubt the relevance of such a phrase in a modern statute enac
the legislature of an independent country.
Certain difficulties of interpretation of this section arise when it is
sidered in relation to the two following. These will be dealt with lat
points, however, need attention at this stage.
In the first place there is no express provision in the Act for the appl
in a single case of both customary law and the common law-each
applied to a different part of the case. Indeed section 3 appears to be w
in such a waythat the application of both systems of law in one cas
never be correct. The application of one system appears to exclud
possibility of the application of the other.
Secondly the provisions of this section have created, it is submitted,
problems as to the powers of the several types of court to apply t
systems of law.
In a discussion cf the difficulties of interpretation of this and other s
of the Act, it is most interesting to take notice of the parliamentary e
leading up to the eventual passing of the Act. It must in particular be n
that the bill which substantially became law in August, 1969 was pr
to the National Assembly as Bill No. 574 on December I Ith, 1968,
replacement for Bill No. 34,5 which had been presented to the N
Assembly on August 9th, 1968. In accordance with the terms of section
of the Constitution of Botswana, this earlier bill had been referred dir
the House of Chiefs (a body having no legislative powers but power
consider bills referred to it under section 89(2) and to submit to the Na
Assembly resolutions thereon).7 The bill fell to be considered briefly b
House of Chiefs at their meeting of November 25th. On the followi
however, the bill was withdrawn because in the words of the Att
General-"Since this Bill was published, it has been given close stu
Government and a number of detailed amendments appear desira
necessary."8 The replacement bill9 was considered by the House of Chie

I See also Customary Courts Proclamation, i961, s.2 (as amended).

2 I.e., introduced by Reception Statute (see p. 4, n. I, supra) plus subsequent legis
3 See, e.g. Allott, New Essays in African Law, 158.
4 Published as a supplement to the Gazette of November 8th, 1968.
s Published as a supplement to the Gazette of December 31st, 1968.
6 Section 89(2). "The National Assembly shall not proceed upon any bill (includ
amendment to a bill) that, in the opinion of the person presiding, would, if enacted,
of the provisions of this Constitution or affect-
(a) the designation, recognition, removal or powers of Chiefs, Sub-Chiefs, or H
(b) the organisation, powers or administration of African Courts;
(c) African customary law, or the ascertainment or recording of African customary
(d) tribal organisation or tribal property;
unless-
(i) a copy of the bill has been referred to the House of Chiefs after it has been intr
in the National Assembly; and
(ii) a period of thirty days has elapsed from the date when the copy of the bill was re
to the House of Chiefs."
7 Constitution, s.86(i).
8 House of Chiefs Official Report-Ioth Meeting, November 25th-26th, 1968, 22.
9 No. 57 of 1968.

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6 Botswana Customary Law Act, 1969 [x972] J.A.L.
February, 1969, and was returned by that House with suggestions for mino
amendments.' The bill completed its second reading in the National
Assembly on March 25th, 1969, and subsequently received the assent of the
President on August 22nd, the date also prescribed for its commencement.
The knowledge that one Customary Law bill was completely withdrawn
and replaced by another and a perusal of the differences, some of them quite
substantial, between the two bills is useful in a discussion of the final Act.
Not of course that the contents of the discarded bill nor even of the bill
which was substantially accepted can strictly be employed as aids in the
interpretation of the provisions of the statute, but it will be seen that the very
existence of some sections of the Act and especially some of the anomalies
owe much to the bill as originally conceived.
The apparent anomalies contained within the Act itself I shall refer to
later, but in connection with section 3, there must be mentioned one anomaly
not apparent from the terms of the Act but one which followed as a con-
sequence of the alterations made to the bill.
Section 3 in Bill No. 34 read as follows:

"In the exercise of its original jurisdiction in civil cases and proceedings the
High Court of Botswana, and any other court authorized thereto by the
President by notice in the Gazette, shall, in accordance with the provisions of
this Act, observe and enforce the observance of the appropriate customary
law."

From this it is clear that in the first instance one very important class of
courts, i.e., the Subordinate Courts, was to be excluded from the courts to
be permitted to apply customary law. According to the Minister of State,
Mr. Nwako,2 it was originally intended that the President should, in accord-
ance with the terms of the original section 3, extend the application of the
Act to the Subordinate Courts by notice in the Government Gazette.
This being the case, it was perfectly natural that there should have been
presented to the National Assembly, on the same day as Bill No. 34, the
Subordinate Courts (Amendment) Bill, I968,3 the purpose of the Bill being
inter alia to amend the provisions of the Subordinate Courts Proclamation4
with respect to the transfer of cases involving customary law from the
Subordinate Courts to the African Courts. The new provisions5 were intended
to complement provisions contained in the African Courts (Amendment)
Bill6 relating to the transfer of cases from the African Courts (to be renamed
under the Bill as Customary Courts) to the Subordinate Courts.7 No longer
was the Clerk of a Subordinate Court to have the power to order the com-
mencement of an action in a Customary Court rather than a Subordinate
Court but decisions to order the transfer of a case were now to be taken in all
cases by the court itself. Although it is not clear from the terms of the

1 To clauses 2, 6, 8 and 9.
2 House of Chiefs Official Report, 15.
3 Published as a supplement to the Gazette of November 8th, 1968, Bill No. 32.
4 Laws of Bechuanaland, 1959, cap.5.
s6No.
See Iespecially
of 1968. clauses 3 and
Published as 4a amending s.I6toand
supplement theintroducing
Gazette of aJuly
new 12th,
s.3 1A 1968
respectively.
and sub-
sequently becoming law as Act 57 of I968.
7 Amending s.29 of the African Courts Proclamation, '1961.

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Vol. 16. No. I Botswana Customary Law Act, 1969 7
proposed section 31Al what a Subordinate Court would have done if it had
decided that a case was justiciable under customary law but at the same time
that it was not in the interests of justice to transfer the case to a Customary
Court, it is clear that the new provisions were conceived on the assumption
that the Subordinate Courts had no jurisdiction to apply customary law in
cases at first instance. This view is reflected in the Memorandum accompany-
ing Bill No. 322 and also in the speech of the Attorney-General to the House
of Chiefs in the original debate in that House on the Customary Law Bill.3
Because the first Customary Law Bill was not designed to extend the general
application of customary law to the Subordinate Courts, that Bill would
clearly not have reduced the need for the transfer provisionr in the Sub-
ordinate Courts Proclamation.
In the second version of the Customary Law Bill4 presented to the National
Assembly in December, 1968, section 3 was radically changed and appeared
in the form which subsequently became law in August, 1969. By virtue o
the modified section 3, customary law was now to be applied in appropriat
cases by "The courts of Botswana" which expression can hardly exclude th
Subordinate Courts.
In the meantime the Subordinate Courts (Amendment) Bill, 1968,5 had
beenwithdrawn alongwith the original Customary Law Bill, as the two were,
in the words of the Attorney-General, "fairly intimately related".6 In due
course this bill was replaced by the Subordinate Courts (Amendment) Bill,
I969,1 which was presented to the. National Assembly on July iI th, i969.
In view of the alterations to section 3 of the Customary Law Bill it is sur-
prising to find that the Memorandum accompanying the new Bill again
speaks of the Subordinate Courts' lack of a customary law jurisdiction in
matters of first instance.8 The new transfer provision9 and section 3 of the

1 3 A. "(i) A Subordinate Court at any time after the issue of summons commencing
action, where both parties are tribcsmen, either of its own motion or on the application of
either party, where it is of the opinion that the matter in issue is justiciable under customary
law may, if it considers it in the interests of justice so to do, order that the action be trans-
ferred to a customary court of appropriate jurisdiction established or recognized under the
Customary Courts Proclamation, 1961.
(2) Before making an order under subsection (2) the Subordinate Cour t shall afford the
parties an opportunity of making representations in the matter.
(3) For the purposes of this section "Tribesmen" and "customary law" shall have the
meaning assigned them in the Customary Courts Proclamation, I961."
21 ."Consequent to the introduction of the African Courts (Amendment) Bill, 1968, amend-
ment is required to section 16(1) of the Subordinate Courts Proclamation (Chapter 5) which
provides for the reference of actions between Africans to the African Courts. Since the
Subordinate Courts lack a customary law jurisdiction in matters of first instance, it is
necessary to retain the power to refer actions justiciable under customary law to the custom-
ary courts, but, since a decision to refer a case amounts to a decision to deprive a person of
his common law rights, if any, in the matter (just as a failure to refer may deprive a person of
his customary law rights) it is considered that the question of the reference of a case to the
customary courts should be fully canvassed in the Subordinate Court and should not be a
matter which, as at present, may be left to the Clerk of the Court."
3 House of Chiefs Official Report, 18.
4 No. 57 of 1968.
s No. 32 of 1968.
6 House of Chiefs Official Report, 22.
7 No. 23 of 1969. Published as a supplement to the Gazette ofJuly 11th, 1969. No. 23 of 1969.
8 It is almost identical to the extract from the earlier Memorandum, quoted at n. 2, supra.
9 Section 31A of the Subordinate Courts Proclamation now reads:
" Transfer of Cases to Customary Court
31 A. (i) Where at any time after the commencement of any proceedings, a Subordinate
Court is of the opinion-

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8 Botswana Customary Law Act, 1969 [ 972] J.A.L.
Customary Law Bill, both of which became law on August 22nd,
very difficult to interpret together.
On the one hand, one has the situation under section 3 of the Cust
Law Act that the Subordinate Courts along with the other "
Botswana" are required to apply customary law where properly appli
where not properly applied, the common law. On the other hand, by
of the new section 31A of the Subordinate Courts Proclamation thes
are required to order the transfer to a customary court of any case
customary law appears to be applicable unless (and this would seem u
to apply) the court also considers that it would be contrary to the in
justice to transfer the case. Thus in practically every case where cust
law is applicable, the Subordinate Courts are under the conflicti
both to apply customary law and at the same time to transfer th
a Customary Court.
Section 13 of the Customary Law Act preserves the operation of
laws in force immediately prior to the commencement of the Act. T
ordinate Courts (Amendment) Act was not in force at that time
of commencement is stated to be the same as that of the Custom
Act, i.e., August 22nd, 1969.1
It is provided by section 3 of the Customary Law Act that the
Botswana shall apply customary law "within the limits of their juris
and it is conceivable that a liberal interpretation of these words mig
the conflict, in that section 3iA of the Subordinate Courts Proc
might be read as a jurisdictional limitation upon the Subordinat
and thus ensure that section 3 of the Customary Law be construed s
that provision. It must be noted that section 3IA falls within that g
sections (15-32) in the Subordinate Courts Proclamation which ar
the heading of "Civil Jurisdiction".
This, nevertheless, is one of the questions raised by section 3
Customary Law Act, and a question which appears to have result
vertently from the amendment of the wording contained in the tw
Another question relates to the position under the Act of the Cust
Courts. The clear intention of the earlier Bill was simply to exte
High Court (and other courts authorized by the President) the
apply customary law when appropriate, leaving unchanged the po
the Subordinate Courts and the Customary Courts. The revised s
and the one which became law is, however, far from clear on this po
have seen that the extension of the operation of the Act to "the
Botswana" must include the Subordinate Courts. It must equally
that the Customary Courts too are embraced by the section. This
no difficulty so far as the application of customary law is concerned,

(a) that, by virtue of the provisions of section 4 of the Customary Law (A

and Ascertainment) Act, 1969, or any other law, customary law is appli
the principal matter in issue: and
(b) that it is not contrary to the interests of justice to do so; it shall order th
be transferred to a customary court of competent juiisdiction.
(2) Before making an order under subsction (i) the Subordinate Court shall a
parties an opportunity of making representations in the matter.
(3) An order under subsection (1) shall have the effect of suspending all pro
the matter before the Subordiate Court making the order, and any party to the p
may thereupon, subject to the provisions of the Customary Courts Proclam
commence proceedings de novo in any customary court of competent jurisdictio
I Although, of course, the original transfer provision, the proviso to s.i6 of the S
Courts Proclamation, was then in force.

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Vol. 16. No. I Botswana Customary Law Act, r969 9
of the alternative imperative that where customary law is not properly
applied then "such courts shall apply the common law"?
The rules relating to the laws to be administered by the Customary
Courts are to be found in section I2 of the African (Customary) Courts
Proclamation, 196I, as amended by the African Courts (Amendment and
Supplementary Provisions) Act, 1968:
"12. Subject to the provisions of this Proclamation and any other written
law a Customary Court shall administer-
(a) customary law;
(b) the provisions of any written law which the Court may be authorized

to administer by any written law. ... ."

From this it is clear that the Customary Courts are restricted in the main
to the application of customary law supplemented by specifically authorized
statutes. It seems equally clear, however, that as section 12 is to be read
"subject to any other written law" and, therefore, subject to the Customary
Law Act, 1969, the Customary Courts are bound, according to the letter of
section 3 of that Act, to apply the common law when customary law is not
properly applied.
It might be objected that section 3 of the Customary Law Act lays down
rules for application by the courts of Botswana "within the limits of their
jurisdiction", and that the administration of the common law is outside the
jurisdictional limitations of the Customary Courts. But on the other hand
an examination of section 81 of the African Courts Proclamation (as amended),
which is headed "Civil Jurisdiction", reveals no jurisdictional limitation
on the law to be administered other than that the matter must be "justiciable
under any law administered by the Court under section I2" (referred to
above).
It may be, therefore, that a situation would arise in which a Customary
Court would, according to the letter of the Customary Law Act, be required
to apply the common law-surely not a result which the legislature intended.
The harshness of this position may, however, be relieved in practice by the
application of section 29 of the African Courts Proclamation, 1961, as
amended, which provides for application by any party to proceedings in a
Customary Court for the case to be transferred to some other court. The
Customary Courts Commissioner to whom such application is made may
"if he considers that it would be in the interests of justice to do so, transfer
the case for hearing and determination by some other Customary Court or
a subordinate court of competent jurisdiction or otherwise."2
Section 3 of the Act having laid down (subject to the above qualifications)
the general rule that customary law is to be applied where properly applied
and that the common law is to be applied otherwise, the sections following
provide further rules as to the applicability of customary law.

1 "8.(i) Subject to the provisions of section ten, and of subsection (2) of this section, a
customary court shall have and may exercise civil jurisdiction over causes and matters in
which-
(a) the matter is justiciable under any law administered by the Court under sec
and
(i) all the parties are tribesmen; or
(ii) the defendant consents in writing to the jurisdiction of the court.
(2) Notwithstanding the provisions of subsection (I), a Customary Court sha
jurisdiction to hear and determine suits for the recovery of liquid civil debts due to t
or any Town or District Council in which the defendant is a tribesman or consents in
to the jurisdiction of the Court."
2 Section 29(3) (a).

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 1o Botswana Customary Law Act, 1969 [x972] J.A.L.
Section 4 provides that, subject to three exceptions, customary law "shall
be applicable" in all civil cases and proceedings where the parties theret
are "tribesmen". "Tribesman" is defined in section 2 of the Act as meaning-

"member of a tribe or tribal community of Botswana or member of a tribe or

similar group of any other country in Africa prescribed by the Minister by
notice in the Gazette for the purposes of the Customary Courts Proclamation
1961, and includes the legal personal representative of such member."

Although, on the face of it, the effect of the first part of section 4 may appea
to be quite clear, it seems a pity that its wording is not completely consisten
with that of section 3. That section refers to cases in which customary law
is "properly applied", and one might have expected the same terminolog
in section 4 but instead the wording has changed to "applicable". A different
word, but has it a different meaning? It is submitted that the Legislatu
must have intended that if customary law is "applicable" for the purpos
of section 4 (the heading to that section introducing yet another phrase
"Customary Law to be Applied"), such law must also at the same time be
"properly applied" for the purposes of section 3 (i.e., "applicable" denote
"requiring to be applied" rather than "capable of being applied").
The exceptions to this primary rule that customary law is applicable i
cases between tribesmen are not difficult. The first is where "it appear
either from express agreement or from all relevant circumstances that the
parties intended or may reasonably be deemed to have intended the matt
to be regulated according to the common law".1 This presumably mean
that, in a situation where it appears from the relevant circumstances tha
one party only "intended or may reasonably be deemed to have intende
the matter to be regulated according to the common law"2 then customary
law will still be applicable and thus in the terms of section 3 "properly
applied". The court will not, therefore, be left in such a case any choice but
to apply customary law (despite the fact that a greater injustice might resul
therefrom).
The second exception is any case where "the transaction out of which the
case or proceedings arose is one unknown to customary law", and the third
where "the parties express to the court their consent to the common law
being applicable; and any consent referred to in this paragraph shall be
recorded in writing and attached to the court record of the case and shall
be irrevocable."3
Presumably the effect of this third exception is again to remove any dis-
cretion in the court as to which system of law to apply. Once the parties
have "consented" to common law being "applicable", it presumably means
that customary law would not in the terms of section 3 be "properly applied"
and that, therefore, the common law must be applied. If it be true that it is
possible under the Act for the parties to a case to decide conclusively which
system of law shall apply, the question of the rights of third parties arises. It
would be unfair if a pact between plaintiff and defendant in a case resulting
in the application of the common law could oust the action of a second
plaintiff against the same defendant relying on the same facts but based on
the customary law. 4Such unfairness would in fact be avoided so long as the

I Section 4 (a).
2 Section 4 (b).
3 Section 4 (c).
4Cf., Schreiner, J. A., in Ex Parte Minister of NativeAffairs in Re rako v. Beyi, 1948 (I) S.A.
388 (AD), at 400.

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Vol. 16. No. I Botswana Customary Law Act, 1969 II
first case is not resjudicata for the purposes of the second on the grounds tha
different parties are involved.1 It seems, however, that there is no such
safeguard for a luckless defendant, who may have to face the possibility o
two different actions on the same facts under different systems of law.
If the underlying presumption in section 4 is that in cases between tribes-
men customary law shall apply, this presumption is reversed in section 5 for
cases between "tribesmen and non-tribesmen".2 Only in two classes of cas
is customary law to apply. One is where "it shall appear either from express
agreement, or from all relevant circumstances, that each intended or may
reasonably be deemed to have intended the matter to be regulated according
to customary law",s and the second where "the parties express to the cour
their consent to any customary law being applicable".4 As with section 4, it
seems that the "consent" of the parties is sufficient to remove from the cour
any discretion as to which system of law to apply, and the question of th
rights of third parties again arises. A further point to note in connection with
section 5(b) is that the parties may express their consent to "any customary
law being applicable". This presumably means that they may consent to th
application of a particular system of customary law, thus removing an
doubt as to which system should apply.5
Following upon sections 3, 4 and 5 dealing with the general principles o
the choice of law are three sections making special provision for certain
particular types of case.
Section 6 provides that "Notwithstanding anything to the contrary in
this Act, in any case relating to the custody of children the welfare of th
children concerned shall be the paramount consideration irrespective o
which law or principle is applied."
So far as the common law is concerned, this section appears simply to lend
statutory confirmation to what is already a well-established rule-at least
in modern cases from the Republic of South Africa.6 Presumably the section
is included to ensure that where the rules of the three previous sections wou
require customary law to apply, then such law must be applied subject to this
rule that the welfare of children involved must be the paramount con
sideration. If this is the main reason for the inclusion of the section, th
implication must be that the repugnancy clause of section 27 would not
itself be sufficient to ensure the application of the "welfare" principle in any
case.8
Section 7 provides that "Notwithstanding the provisions of section 4
customary law shall be applicable in determining the intestate heirs of
tribesman and the nature and extent of their inheritances." Succession to
property must be one of the most sensitive areas to be covered by the Act.
Conflicts over principles of whether or not everyone is entitled to make a will,
the effect of a will made by tribesmen and the rules applicable on intestacy
run very deep, for together with land tenure law and matrimonial law the
law relating to succession forms one of the cornerstones of customary
tradition. The effect of section 7 must be to allay any fears that section 4

1 Cf, Mokorosi v. Makorosi, 1961-62 H.C.T.L.R. I.

2 I.e., presumably, in cases involving as parties at least one tribesman and at least one
non-tribesman.
3 Section 5 (a).
4 Section 5 (b).
s I.e., presumably, no "question arises" for the purposes of s. io. See below at p. 15.
6 See, e.g., Fortune v. Fortune, 1953 (3) S.A. 348.
' See supra.
B See also Allott, op. cit., x66.

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 12 Botswana Customary Law Act, 1969 [ 1972] J.A.L.
might permit the application of the common law on the intestacy
tribesman.
Testate succession is not affected, and thus the rule established in Fraenkel
and Makwati v. Sechele', that "every person" regardless of ethnic origin may
by virtue of section 4 of the Wills Proclamation2 make a will, still stands.
Also unaffected, by virtue of section 3 of the Act, must be the operation of
section 3 of the Administration of Estates Proclamation,3 which provides:

"3(I) Subject to the provisions of the next succeeding subsection, this

Proclamation shall not apply to the estates of deceased Africans, which,
subject to the provisions of the African Divorce Proclamation (cap. 77), shall
continue to be administered according to the Customary Law of the tribe or
community of the place where the property is situate.
(2) The President may by Order published in the Gazette apply this
Proclamation to such property of deceased Africans as he may specify in the
Order."

The term "African" is nowhere defined in either the Administration of

Estates Proclamation or the Interpretation and General Clauses Law, I966,
but since the classification made is clearly ethnic, the word must at the same
time include "Africans" who are not in the terms of the Customary Law Act
"tribesmen" but exclude persons who might be "tribesmen" and yet not
Africans. The exclusion of the application of the common law to tribesmen
is thus, with the exception of that rare tribesman who is not also African, in
fact already covered by the broader provision of section 3(I) of the Admini-
stration of Estates Proclamation.
On the other hand, section 3(2) of that Proclamation creates an exception
to the first subsection, which exception must override the categorical state-
ment in section 7 of the Customary Law Act that "customary law shall be
applicable in determining the intestate heirs of a tiibesman", etc.4
The third "special provision" (section 8) is expressed to be concerned with
claims arising out of personal injuries and death. The Minister of State,
Mr. Nwako, referred to this section in the House of Assembly5 in the follow-
ing terms:
"There is such a great difference between damages awarded by a customary
court in death and personal injury cases and those awardable under the
common law and the prejudice in being restricted to customary remedies is
so great that it is considered that the customary action for damages in these
circumstances should be no bar to the bringing of a subsequent action under
the common law. The Bill makes provision accordingly and further makes it
clear that the spouse in a customary marriage can claim for loss of support
upon the death of the other spouse. It is intended to widen the ambit of this
provision by an amendment in committee."6

Section 8(1) provides that "Nothing in section 4 shall prevent the appli-
cation of the common law where the claim arises out of personal injury to, or
the death of, any person." As this subsection refers specifically to section 4,
its intention is presumably to allow the application of the common law for

1 1963-1966 H.C.T.L.R. 70.

2 Cap. 87 of the Laws (1959 ed.).
3 Cap. 83 (as amended).
4 I.e., the estate of a "tribesman" who is also an "African", although prima facie to be
administered in accordance with customary law, may be brought within the ambit of the
Administration of Estates Proclamation by virtue of s.3(2) of that Proclamation.
5 Hansard, March 25th, 1969.
6 See infra.

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Vol. 16. No. I Botswana Customary Law Act, 1969 13
the reasons the Minister of State outlined in cases between tribesmen and
where section 4 itself would not otherwise permit it. It is difficult, however,
to predict quite what the effect of the subsection may be, as it is not clear
who will have the power to decide whether or not the common law shall
apply. The wording of the subsection does not seem to make the application
of the common law mandatory. It does not express customary law to be
"not properly applied" for the purposes of section 3 and thus compel the
application of the common law. Presumably if a plaintiff wishes customary
law to be applied this is permissible. But does the plaintiff's wish that the
common law should apply automatically prevail? Has the court been left
with a complete discretion?
Subsection 2 is clearer. This provides that-
"Proceedings in which damages are claimed arising out of personal injury
or death to any person may be instituted notwithstanding that the claim has
already been determined under customary law; but in assessing damages the
court shall take into account any such previous determination."

The intended effect here must presumably be that, where a plaintiff has
not had the benefit of subsection I but has had a claim decided in accordance
with customary law, he will not be faced with a plea of res judicata when he
presents a claim framed in accordance with the common law. The last
clause in the subsection concerning damages does nothing to resolve the
difficulties of a defendant where he is sued first by a plaintiff under the
customary law and then by a second plaintiff under the common law.'
Presumably any damages he has been compelled to pay to one plaintiff
under customary law will not be set off against any further damages he is
required to pay to a different plaintiff under the common law.
Section 8(3) provides that:
"Any person entitled under customary law to support from any other person
shall be entitled to claim damages under the common law for loss of support
from any person who unlawfully causes the death of or personal injury to that
other person or who is liable in law in respect thereof."2

This subsection is valuable, especially in avoiding situations which might

arise similar to that which gave rise to the South African case of
S.A.N. T.A.M. v. Fondo.3 In that case a woman married in accordance with
customary law failed to recover damages when her "husband" was neg-
ligently killed, on the grounds that the customary union was not a lawful
marriage and did not, therefore, give rise to a legal duty in the "husband"
to support his "wife".4
Speaking in the House of Chiefs5 about clause 6 of the earlier Customary
Law Bill,6 the Minister of State, Mr. Nwako, said:

"Clause 6 is an important clause providing that the capacity of a person to

enforce or defend his rights in the High Court must be regulated by customary
law where the matter in issue is to be determined under customary law. It
would clearly be contrary to justice for the capacity of a person to enforce or
defend his rights to be determined under one legal system where the sub-
stantive matter in issue was determined under another system."

1 See supra, p. 0o.

2 In Bill 57 of 1968 this provision was confined to the spouse of the deceased.
3 196o(2) S.A. 467.
4 This position has since been reversed by legislation in South Africa.
- House of Chiefs Official Report, x6.
6 Bill 34 of 1968.

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14 Botswana Customary Law Act, 1969 [ 1972] J.A.L.
Although the conclusion that it would clearly be contrary to justice to
otherwise may be a little hasty, the rationale of section 9 of the Act, he
"Legal Capacity of a Tribesman," is certainly that there should be co
ency in the application of law to the substantive matters and the adj
question of capacity. The original clause 6 referred to the capacity o
person in the High Court. With the extension of the scope of the Act be
the confines of the High Court, section 9 is not limited in effect to cas
that court alone but must be taken to include all courts of law.
The other important modification made between the first bill and the Act
is that section 9 is now rather oddly confined to the question of the capacity
of a tribesman only-odd, because as a result of section 5 which might require
customary law to be applied to a non-tribesman, such a litigant's capacity,
whether in a customary court or not, might also have to be established.
It will be readily appreciated that in a country such as Botswana, where
not one but several different systems of customary law operate among the
different communities, a necessary step between the decision that customary
law is properly applied in a case and the process of ascertaining the particular
rules is that of deciding which of these several systems of customary law is
applicable.
Historically the position has been most unsatisfactory. In the first place
there have been instances where a court has, perhaps a little recklessly,
applied rules clearly related to one system of law without first establishing
whether those rules also have any foundation in the system appropriate to
the case in question.' In one case, for instance,2 the opinion of Professor
Schapera as to a rule of customary law was adopted without consideration
of the fact that the case involved people of the Batawana tribe whilst
Professor Schapera had been concerned with the law of the Ngwato.3
In the second place the position in Botswana was further confused by
statute in that, until the African Courts (Amendment and Supplementary
Provisions) Act, 1968,4 the law was referred to in that Act and the Customary
Law Act as "Tswana Law and Custom". This was the phrase used in the
African Courts Proclamation of i961,5 although it is true that in section 2 of
that Proclamation the general words were further defined in relation to "a
particular tribe or in relation to any African community outside any tribal
territory."
At all events, section io of the Customary Law Act is a welcome attempt
at a resolution of the difficulties created by the existence of several separate
systems of customary law. Firstly, and perhaps most importantly, it gives
statutory recognition to the need for a decision to be made at all as to which
system to apply. Secondly, it does provide guidelines as to the law to be
applied in the case of land matters (the customary law of the place where
the land is situate)6 and inheritance (the law applying to the deceased).7
Subject to those rules, the customary law to be applied is that which "the
parties intended or may reasonably be deemed to have intended should

1 Despite, e.g., the warning of Lansdown, J. in Bereng Griffith v. 'Mantsebo Seeiso Griffth,
1926-53 H.C.T.L.R. 5o, at p. 58 that "great caution, however, is necessary in seeking
any guidance from these authorities".
2 Samotsoko v. Palane, 1958 H.C.T.L.R. 75.
3 See also Allott, op. cit. 284-
4 Act 57 of 1968.
5 Proclamation Ig9 of 1g961.
6 Section io(i)(a).
'Section io(i)(b).

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 Vol. 16. No. I Botswana Customary Law Act, 1969 15
regulate their obligations in the matter, or in the absence of such actual or
deemed intention, the customary law of the place where the action arose."'
It is not difficult to see that a court might find the assessment of the
intentions or deemed intentions of the parties a complex matter. Similarly
the question of where an action arises is not simple,2 nor presumably in all
cases is the question of which system of customary law obtains in a particular
place.
The fact that .he rules so far outlined may not always provide a final
answer is recognised by subsection (2) of section io. This provides that:
"If the system of customary law cannot be ascertained in accordance with
subsection (i) or if the customary law is not ascertainable, the court shall
determine the matter in accordance with the principles of justice, equity and
good conscience."

Perhaps it is inevitable that such a sweeping-up provision should not manage

to answer all the outstanding questions, but this one, it seems, poses more
questions than it settles.
The principal difficulty lies in the interpretation of the word "matter".
One might presume that, in a section concerned with and subtitled "Conflict
of Customary Laws", "matter" would refer to the question of which system
of customary law should be applied. That being the case, it follows that the
meaning of the subsection would be that, failing ascertainment of a system
per section io(i), the "principles of justice, equity and good conscience"
should be employed to find the appropriate system. This in itself raises again3
the definition of what exactly these principles amount to and how they are
to be employed.
But this interpretation of "matter" produces the difficulty of how to
interpret the words, "or if the customary law is not ascertainable". This
phrase appears to cover in advance the possibility that the following section
(section I x) may fail to give adequate assistance to the court in its deter-
mination of a particular rule of customary law, thus leaving the customary
law "unascertainable". The position in the Act of this phrase is therefore
rather strange. One might rather have expected to have found it following
upon and qualifying section I x. Further, its incorporation into section 10(2)
seems to necessitate a different interpretation of "matter", for "matter" must
presumably in this connection mean the whole case and not simply the
question of which system of customary law should apply. This entails the
one word "matter" having at the same time two different meanings in the
same section, together with the additional difficulty of a court, whether the
High Court, a Subordinate Court or a Customary Court, deciding the whole
issue in a case by recourse only to these "principles of justice, equity and
good conscience"!
Perhaps in the event this situation is unlikely to arise, as it may very well
be that a court finding the customary law unascertainable may conclude
that in the terms of section 4(b)-"the transaction out of which the case or
proceedings arose is one unknown to customary law"4 and that, therefore,
section 3 requires the common law and not customary law to be applied.

I Section xo(I)(c). N.B. also that in the original bill (Bill 34 of 1968) the clause equivalent
to s.xo was much more comprehensive and included, inter alia, provision for the application
of a combination of any two or more customary laws.
2 A similar phrase has long existed in the Subordinate Courts Proclamation as a juris-
dictional limitation.
3 See Allott, New Essays in African Law, 44.
4 See supra at p. io.

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16 Botswana Customary Law Act, 1969 [1972] J.A.L.
ASCERTAINMENT

Second only to the problem of whether customary law is to be applied an

if so which system of customary law is the problem of how the relevant rule
of customary law are to be ascertained by the courts applying them. It
been the practice in those parts of Africa having a dual system of courts an
law to differentiate sharply between the process of ascertainment in t
"ordinary" courts and that in the customary courts. In the ordinary courts,
customary law has been treated more like foreign law than the ordinary law
of the land and it has, therefore, been necessary for the rules of customary
law to be proved in evidence as facts. The harshness of this position has bee
modified to some extent by the so-called rule in Angu v. Attah,1 which provid
that where "the particular customs have, by frequent proof in the cour
become so notorious . . . the courts will take judicial notice of them" an
this rule itself has been the subject of further modification." Nevertheless th
general treatment of customary law as fact rather than law proper h
continued, and, therefore, the objection to the judge's imparting his ow
knowledge of customary law has remained. No judicial notice is taken
customary law in the ordinary courts.
Contrasted with this position is that in the customary courts. Because the
courts are established specially for the administration of customary law and
because they are staffed by persons well acquainted with the rules of custom
ary law, these rules are treated as law proper and rules of which the cou
may take judicial notice.
In the absence of any specific local authority it may be fairly assumed th
prior to the Customary Law Act this differentiation between the means
ascertaining customary law in the two systems of courts applied in Botswan
as elsewhere.
Thus it waF the purpose of section I I of the Customary Law Act to resolve
some of the questions relating to the ascertainment of customary law and
here again the Parliamentary history of this section cannot be ignored. The
relevant clauses of the first Bill3 were nos. 7 and 8 and it is in these that the
West African influence4 is perhaps most apparent. They were a virtual copy
of paragraph 5 of the Courts Decree of 1966 in Ghana5 and the combined
effect was to provide that in future the ascertainment of customary law was
to be for all courts not a question of fact but one of law and further to provide
a procedure whereby an inquiry could be held by the court into the existence
or content of a rule of customary law. As the memorandum to this original
bill said:

"2. An important provision of the Bill is clause 8 which enables a court to

hold an inquiry into the content of the customary law. Previously no pro-
cedure for the ascertainment of the customary law was prescribed and courts
were further handicapped by their inability to call witnesses on their own
accord in civil cases. The clause confers upon all courts this power."6

Practically the same wording was used in the Memorandum to the second
Bill " propos of ascertainment-surprising since the provision for an inquiry

1 (i916) P.C. '74-'28, 43-

2 For a full discussion see Allott, op. cit. 259.
3 No. 34 of 1968.
4 Such influence was acknowledged by the Minister of State: see, Official Report of
House of Chiefs, i6.
5 N.L.C.D. 84.
6 Supplement to the Gazette of November 8th, 1968.

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 Vol. 16. No. I Botswana Customary Law Act, 1969 17
as such had now been dropped from the revised bill. More signific
however, is that, in condensing the contents of clauses 7 and 8 of the or
bill into clause II of the revised bill (and subsequently section 11 o
Act), the words of clause 7 providing that questions as to the existe
content of a rule of customary law would be questions of law and no
were entirely omitted from the new bill.
This, in the present writer's opinion, creates some uncertainty as
true status of customary law in the courts of Botswana. On the one
there is no express provision in the Customary Law Act altering the exis
situation in which judicial notice would be taken of customary law i
customary courts and not in other courts, while on the other han
very words of section I i-"If any court entertains any doubt as to
existence or content of a rule of customary law . . ."-surely imply
all courts in Botswana are empowered to ascertain the law from thei
knowledge and without the need for the proof of the law in evidence. O
in the case of doubt is the court expected to resort to the other m
prescribed in the Act for the ascertainment of the relevant rules. J
notice of customary law in the ordinary courts seems to have crept
implication rather than by express enactment.'
Otherwise section II does much to regularise the procedure of ascer
ment when the court "entertains doubt". The original intention exp
in section 8(2) of Bill No. 34 to permit the holding of an inquiry as i
XII of the Criminal Procedure and Evidence Proclamation with the
accompanying advantage of compulsion of attendance of witnesse
rejected in the second Bill2 and is not, therefore, reflected in the A
does the Act contain specific provision, as in section 8(3) of the original
for the consultation of the "House of Chiefs or any person possessing k
ledge of the customary law".
Presumably, however, the inclusion of such a provision would have
little to section I I as it now stands, since it is already provided t
Court may consult "other sources".
The second and third provisos to the section are important as m
towards ensuring greater procedural fairness in the process of ascertain
By requiring that oral opinions on customary law should be given
court in the same manner as oral evidence3 and that written opinions sh
be made available to the parties to a case, objections that cases ma
decided as a result of opinions which the parties have had no oppor
to rebut may be removed. It will be noted that the Act makes no s
provision for the consultation of assessors4 in the process of ascertainm
Although one may presume that it was intended that assessors, too,
simply be one of the "other sources" from whom the court may
opinions, it is not entirely clear that the opinions of assessors would ne
arily be caught by the requirements of provisos (ii) and (iii). This is
section 12(2) of the High Court provides that-"It shall be the duty o
assessors to give, either in open court or otherwise, such assistance and ad
the Judge may require. .. ." Although the practice of assessors' op
being given privately to the Judge has been subjected to heavy crit

1 N.B. also that by virtue of s.2'judicial notice may be taken of customary law not on
Botswana but also from other parts of Africa.
2 Despite the virtually identical wording of the memorandum to the bill referred to
3 Section I I, Proviso (iii).
4 For which provision is made in the High Court Act, s.I2 and the Subordinate C
Proclamation, s. I9.
2

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 18 Botswana Customary Law Act, 1969 [x972] J.A.L.
including that of the Privy Council,' there is no doubt that section 12(2) of
the High Court Act permits the continuation of this practice, and presumably
the effect of this section is "saved" by section 13 of the Customary Law Act.
It can only be hoped that any future use of assessors will be made only in
accordance with the spirit of section i i of the Customary Law Act. It is
further hoped that this statutory regulation of ascertainment may assist
generally in the avoidance of the abuse of other sources.2
Section 12 of the Customary Law Act is a form of supplement to section I I
in that provision is made for statements of customary law authorized by the
President to be admissible in any court as prima facie evidence of the law.
It is quite clear that this section is aimed at the work of the Restatement
Project of the School of Oriental and African Studies, London University.3
Although the first drafts of this work4 are now becoming available, no state-
ments, so far as is known, have yet been formally declared "statements of
customary law" for the purposes of the Act.

RESUME

LA LOI DE 1969 SUR LE DROIT COUTUMIER AU BOTSWANA

La loi sur l'application et sur la preuve de droit coutumier de 1969 introduit des
modifications aux cons6quences importantes dans l'administration du systeme
juridique dualiste du Botswana (droit coutumier et common law bas6e sur le droit
romano-hollandais). Les r6gles de choix du droit ne laissent pas place i l'application
6ventuelle dans une m8me affaire de la common law et du droit coutumier, bien que
les sections 3 a Io traitent des regles g6ndrales d'application du droit contumier ou
de la common law dans divers cas particuliers. La loi en vigueur s'6carte sensiblement
du projet d'origine, lequel fut retir6 avant prise en consid6ration par l'Assemblde
nationale et la Chambre des Chefs. Le nouveau projet permettait et r6glementait
I'application du droit coutumier par toutes les cours du Botswana, alors que le
premier projet ne permettait pas son application devant les cours subordonnees
(c'est-a-dire les cours inf6rieures). Aux termes de la loi, la comp6tence des cours
coutumieres est limit6e au droit coutumier compl6td par certaines lois applicables
en vertu de dispositions spdciales.
La regle g6ndrale tablie par la loi est que le droit coutumier sera applicable
dans tous les cas sauflorsque la common law sera d'application, et est surtout applicable
aux affaires civiles mettant en cause des "tribalis6s" tels que les d6finit la loi. Ceux-ci
peuvent cependant s'entendre pour faire gouverner leurs rapports par la common
law, laquelle sera 6galement appliqu6e si le comportement des parties laisse entendre
qu'ils en ont voulu ainsi. Dans les affaires entre "tribalis&s" et autres personnes, la
prdsomption est inverse et le droit coutumier ne s'applique que lorsque les parties
l'ont choisi.

1 Dhalimini v. R. (1943) I All E.R. 463-

2 See supra at p. 16.
3 That this is the intention of the section is confirmed in the Official Report of the House of
Chiefs, 16.
4 See, e.g., the three Restatements of the Kgatla law of Succession to Property, Domestic
Relations, and Land and National Resources (all printed by the Government Printer,
Gaborone).

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