Source:

Botswana Law Reports (1964 to date)/CHRONOLOGICAL LISTING OF CASES 1964 ­ 2019 Volume 3/1997/Cases Reported/MPHOYAKGOSI v. JAKOBA 1997 BLR
604 (HC)

URL:
http://jutastat.juta.co.za/nxt/gateway.dll/frbo/2/4681/4686/4763?f=templates$fn=default.htm

MPHOYAKGOSI v. JAKOBA 1997 BLR 604 (HC)

Citation 1997 BLR 604 (HC)

Court High Court, Francistown

Judge Gaefele Ag J

Judgment June 20, 1997

Counsel Plaintiff in person.

R. J. Chakalisa for the defendant.

Annotations None

Flynote

Husband and wife­Marriage­What constitutes­Customary marriage­Marriage according to Ngwato customary formalities.

Headnote

The plaintiff instituted action against the defendant for expenses incurred for patlo and bogadi and for damages for breach of promise to marry.
The evidence indicated that the plaintif and defendant had fallen in love in 1983 C and in 1984, as was customary, the plaintiff's parents went
to the defendant's parents to ask for her hand (patlo). The patlo ceremony was conducted in 1986. Two children were born of the relationship
and a thagela cow was presented to the defendant's parents. The court proceeded to examine whether a marriage had been conducted or not.
D

Held: (1) that the essential elements of a Ngwato customary law marriage had been established: the plaintiff's representatives had been to
make a request for the defendant in marriage and an agreement had been reached by both parties' representatives. The parties had agreed to
marry and there was no doubt that they had the capacity to marry. Dorcas Makone v. Lesego Ntsiapane F. 513/93, unreported, applied.

(2) It was not necessary that there be a formal marriage before the district commissioner. As there was a valid E marriage the second claim for
damages for breach of promise to marry had to be dismissed but the first claim had to be upheld.

Case Information

Cases referred to:

(1) Shill v. Milner 1937 A.D. 101

(2) Bowman N.O. v. De Souza Roladao 1988 (4) S.A. 326 F

(3) Dorcas Makone v. Lesego Ntsiapane F. 513/93, unreported.

(4) Sennye Moloi & Mmakganeka Maleje v. Mmakgomo Mapotu & Ntshekang Rankgawana Civil Appeal No. F17 of 1990 (Customary
Court of Appeal Civil Case No. 135 of 1989), unreported.

(5) Montle David Sekonpelo v. Sebedi Keetile 1958 H.C.T.R. 88 G

Action for expenses incurred in a marriage ceremony and for damages for breach of promise to marry. The facts are stated sufficiently in the
judgment.

Plaintiff in person.

R. J. Chakalisa for the defendant.

Judgment

Gaefele AG. J.: H

By a writ of summons taken out by the plaintiff on 24 April 1994, the plaintiff, Molefhi Mphoyakgosi, (who at the time was represented by
attorneys D. T. Morotsi & Partners) claimed an amount of "P1,047.50 being expenses incurred for patlo and bogadi" and an amount of
"P10,000.00 for the breach of promise to marry".

1997 BLR p605

GAEFELE AG. J

The particulars of claim alleged that: A

"3. During the year 1983 the plaintiff proposed love to the defendant which was accepted and it was during the same time that the plaintiff
proposed marriage to the defendant which she readily accepted.

4. The parties are blessed with two children namely: B

(a) Leteng, a boy born in 1984.

(b) Merafhe a boy born in 1986

5. After consultation with parents of both parties and in accordance with the Tswana Tradition of patlo', the plaintiff incurred the following
expenses of Bogadi and after the defendant accepted;

(a) a bag valued at P64.00

(b) (Pty)
© 2018 Juta and Company a blanket
Ltd. valued at P85.00 C Downloaded : Tue Feb 07 2023 16:40:39 GMT+0200 (South Africa Standard Time)
(c) two dresses valued at P110.00
 "P10,000.00 for the breach of promise to marry".

1997 BLR p605

GAEFELE AG. J

The particulars of claim alleged that: A

"3. During the year 1983 the plaintiff proposed love to the defendant which was accepted and it was during the same time that the plaintiff
proposed marriage to the defendant which she readily accepted.

4. The parties are blessed with two children namely: B

(a) Leteng, a boy born in 1984.

(b) Merafhe a boy born in 1986

5. After consultation with parents of both parties and in accordance with the Tswana Tradition of patlo', the plaintiff incurred the following
expenses of Bogadi and after the defendant accepted;

(a) a bag valued at P64.00

(b) a blanket valued at P85.00 C

(c) two dresses valued at P110.00

(d) two night dresses valued at P60.00

(e) two head scarves valued at P30.00

(f) eight cakes of soap valued at P12.00

(g) power (sic) soap valued at P6.50

(h) 80 Pula cash D

(i) a beast valued at P600.00

Total P1,047.50

6. In January 1990 the defendant told the plaintiff that she was no longer interested in the marriage and thus breaching the promise to
marry.

7. As a result of the defendant's breach of promise to marry, the plaintiff has suffered damages in the sum E of P10,000.00 (ten thousand
pula)."

The defendant, Keitshekile Jakoba, admitted some of the allegations contained in the particulars of claim. In answer to paragraph 6 of the
particulars of claim the defendant pleaded as follows: F

"Add Para 6

The Defendant admits that she repudiated the agreement to marry in December 1991, but avers that the repudiation was done for a just cause.
Before the repudiation the Plaintiff conducted himself towards the Defendant in a way so serious as to interfere with the aims of marriage or its
anticipated harmony and happiness. The conduct is pleaded seriatim as follows: G

(a) The Plaintiff took to excessive drinking and when drunk he would be aggressive towards Defendant.

(b) Plaintiff threatened to shoot the Defendant, the children of the parties and Defendant's grandmother.

(c) In December 1991, the Plaintiff visited Defendant at Makaleng where she was stationed and he assaulted H Defendant with fists."

Although the particulars of claim were drawn up by a lawyer then representing the plaintiff at the commencement of this action, the plaintiff
conducted his case at the trial. As a result of this I must carefully look at the substantial issues between the parties and not merely and blindly
follow the

1997 BLR p606

GAEFELE AG. J

ipsissima verba of what the parties actually pleaded. I will however not forget the fact that the object of the A pleadings is to define the
issues in order that the other party knows what case he has to meet at the trial. Shill v. Milner 1937 A.D. 101 at 105 and Bowman N.O. v. De
Souza Roladao 1988 (4) S.A. 326 at 331.

Was there a marriage or was there a breach of promise of marriage?

Marriage B

It is common cause that the plaintiff and defendant fell in love in 1983. It is also in evidence and undisputed that two children were born of the
union between plaintiff and defendant. One Leteng, a boy born in 1984 and Merafhe, a boy born in 1986 are presently staying with the plaintiff's
mother (parents). It is both the plaintiff and defendant's evidence that in 1983 they had agreed to get married. In 1984, as is customary, the
plaintiff's parents C met the defendant's parents in order to discuss the preliminaries to such a marriage. At the time, the defendant said, none
of the two boys to the union was born.

It is the evidence of both the defendant and the plaintiff that the plaintiff's parents went to the defendant's parents to ask her for her hand
(patlo). The patlo ceremony was conducted, according to the parties, in December 1986. D Patlo is what Aboagye J. refers to as "request in
marriage" in the case of Dorcas Makone v. Lesego Ntsiapane F513/93, unreported. I will come back to this later. It is the evidence of the
plaintiff that indeed his delegation was given a wife and that the items listed in paragraph 6 of his claim were presented to the defendant's
parents by his delegation. Because a child had been born, a thagela cow had had to be presented to the defendant's parents or E relatives. It
is the parties' evidence that they cohabited together from 1986 or thereabouts, although the plaintiff was working in Kasane Village. His
evidence (plaintiff) was that he paid regular visits to the defendant at Francistown and thence at Makaleng where she was engaged as a
teacher. I have not been able to find a suitable English equivalent word of "thagela". Schapera, in his handbook, gives its literal meaning that it
is F "compensation for having broken through their fence", meaning the girl's parents' fence. Traditionally during courtship a boy cannot see a
girl with the knowledge of the girl's parents. Because of this the boy has to stealthily move into the house where the girl sleeps and this he
does at night. Where a child is born out of sexual relations the two may have engaged in and later the boy expresses a desire to marry, the
boy's parents are required to G pay compensation in the form of a "thagela".

There was a slight difference in evidence and in describing the items presented by the plaintiff's delegation. The plaintiff said these were
presented as "bogadi" and the defendant said in her view it was presented as "patlo". H

Essentially it is the undisputed evidence of the parties that the plaintiff's request for defendant in marriage was completed in 1984. To that
request the defendant's elders and or delegation had agreed. It is also common cause that the patlo formalities were conducted in December
1986.

I pause here to look carefully into the transaction that took place in 1986, in order to attempt to answer the question I have formulated above.
In the
© 2018 Juta and Company (Pty) Ltd. Downloaded : Tue Feb 07 2023 16:40:39 GMT+0200 (South Africa Standard Time)
1997 BLR p607
 follow the

1997 BLR p606

GAEFELE AG. J

ipsissima verba of what the parties actually pleaded. I will however not forget the fact that the object of the A pleadings is to define the
issues in order that the other party knows what case he has to meet at the trial. Shill v. Milner 1937 A.D. 101 at 105 and Bowman N.O. v. De
Souza Roladao 1988 (4) S.A. 326 at 331.

Was there a marriage or was there a breach of promise of marriage?

Marriage B

It is common cause that the plaintiff and defendant fell in love in 1983. It is also in evidence and undisputed that two children were born of the
union between plaintiff and defendant. One Leteng, a boy born in 1984 and Merafhe, a boy born in 1986 are presently staying with the plaintiff's
mother (parents). It is both the plaintiff and defendant's evidence that in 1983 they had agreed to get married. In 1984, as is customary, the
plaintiff's parents C met the defendant's parents in order to discuss the preliminaries to such a marriage. At the time, the defendant said, none
of the two boys to the union was born.

It is the evidence of both the defendant and the plaintiff that the plaintiff's parents went to the defendant's parents to ask her for her hand
(patlo). The patlo ceremony was conducted, according to the parties, in December 1986. D Patlo is what Aboagye J. refers to as "request in
marriage" in the case of Dorcas Makone v. Lesego Ntsiapane F513/93, unreported. I will come back to this later. It is the evidence of the
plaintiff that indeed his delegation was given a wife and that the items listed in paragraph 6 of his claim were presented to the defendant's
parents by his delegation. Because a child had been born, a thagela cow had had to be presented to the defendant's parents or E relatives. It
is the parties' evidence that they cohabited together from 1986 or thereabouts, although the plaintiff was working in Kasane Village. His
evidence (plaintiff) was that he paid regular visits to the defendant at Francistown and thence at Makaleng where she was engaged as a
teacher. I have not been able to find a suitable English equivalent word of "thagela". Schapera, in his handbook, gives its literal meaning that it
is F "compensation for having broken through their fence", meaning the girl's parents' fence. Traditionally during courtship a boy cannot see a
girl with the knowledge of the girl's parents. Because of this the boy has to stealthily move into the house where the girl sleeps and this he
does at night. Where a child is born out of sexual relations the two may have engaged in and later the boy expresses a desire to marry, the
boy's parents are required to G pay compensation in the form of a "thagela".

There was a slight difference in evidence and in describing the items presented by the plaintiff's delegation. The plaintiff said these were
presented as "bogadi" and the defendant said in her view it was presented as "patlo". H

Essentially it is the undisputed evidence of the parties that the plaintiff's request for defendant in marriage was completed in 1984. To that
request the defendant's elders and or delegation had agreed. It is also common cause that the patlo formalities were conducted in December
1986.

I pause here to look carefully into the transaction that took place in 1986, in order to attempt to answer the question I have formulated above.
In the

1997 BLR p607

GAEFELE AG. J

course of evidence I has asked the plaintiff from which tribe he came and his answer was that he was a A Mongwato. The defendant is also of
the Ngwato tribe. In the meantime I will not deal with the parties' evidence as to what later (i.e. from 1986 and thereafter) made the
relationship between the parties sour. This is because if I decide that according to Ngwato customary law, there was a valid marriage between
the parties, then cadit quaestio.

I take note of the fact that the courts of Botswana are enjoined to apply customary law where customary law is B found to be the proper law.
Section 5 of the Common Law and Customary Law Act (Cap. 16:01) provides as follows:

"5. The Courts of Botswana shall, within the limits of their jurisdiction, apply customary law in all cases and C proceedings in which, by
virtue of the provisions of this Act or any other law, customary law is the proper law to apply in such cases and proceedings and where it is not
applicable, the common law shall apply."

The parties went through a Ngwato customary law marriage procedure. They did not go through the civil law marriage procedure. Although
invariably most people go through the customary procedures and having D completed that, they follow the civil rites procedure, I take it that in
the present case, this was what was contemplated, however relations broke down before the second stage (of civil law marriage) was reached.
But the fact that the parties have undergone a customary marriage procedure and completed all the formalities there required, does not in my
mind, make the customary law marriage subordinate to a civil law marriage. It may be E that a marriage before a district commissioner is
respected by most people but this does not mean that tribesmen do not equally find customary law marriage respectable. In instances where
differences in marriage arise, even in marriages which were later contracted before the district commissioner, the parties almost often are
reconciled by the elders who had been involved in the request in marriage (patlo). Such a customary F marriage may be subordinate in the
sense that is was contracted first but it is accorded some respect, although not the same respect, as that contracted before the district
commissioner.

It is a fact which Aboagye J. recognised in the case of Dorcas Makone, that: G

"It is common knowledge that people accord civil marriages solemnized by district commissioners a higher recognition than customary marriages
and that it is the desire of almost every woman to enter into one. Most women feel odd when they wear wedding rings after entering into customary
marriages. They are of the view that wedding rings are for men and women who have taken marriage vows. The plaintiff's explanation as to why
she H and the defendant wanted to get married before the district commissioner therefore sounds reasonable to me. There is nothing wrong with a
couple married under customary law entering into what is generally accepted as a higher and, maybe, a more respected marriage."

In the present case the Ngwato customary marriage formalities were

1997 BLR p608

GAEFELE AG. J

followed and in such formalities there emerges essentially three elements. These are: A

(i) that the parties have capacity to marry and capacity to marry each other;

(ii) that they consent to the marriage; and

(iii) a request is made for the woman in marriage to representatives of her guardian by representatives of B the man's guardian and
this request is accepted.

See the case of Sennye Moloi & Mmakganeka Maleje v. Mmakgomo Mapotu & Ntshekang Rankgawana Civil Appeal No. F17 of 1990 (Customary
Court of Appeal Civil Case No. 135 of 1989), unreported. C

In the present case the essential elements of a Ngwato customary law marriage had been established. In 1984 the plaintiff's representatives
went to Mahalapye to make a request for the defendant in marriage. According to both plaintiff and defendant an agreement was reached by
both parties' representatives. It is also the parties' evidence that they had agreed to marry. There is also no doubt that they had at the time
the Juta
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judgment therefore the formalities and pre­requisites of a Ngwato customary marriage were followed in 1984 and they coalesced into a formal
 In the

1997 BLR p607

GAEFELE AG. J

course of evidence I has asked the plaintiff from which tribe he came and his answer was that he was a A Mongwato. The defendant is also of
the Ngwato tribe. In the meantime I will not deal with the parties' evidence as to what later (i.e. from 1986 and thereafter) made the
relationship between the parties sour. This is because if I decide that according to Ngwato customary law, there was a valid marriage between
the parties, then cadit quaestio.

I take note of the fact that the courts of Botswana are enjoined to apply customary law where customary law is B found to be the proper law.
Section 5 of the Common Law and Customary Law Act (Cap. 16:01) provides as follows:

"5. The Courts of Botswana shall, within the limits of their jurisdiction, apply customary law in all cases and C proceedings in which, by
virtue of the provisions of this Act or any other law, customary law is the proper law to apply in such cases and proceedings and where it is not
applicable, the common law shall apply."

The parties went through a Ngwato customary law marriage procedure. They did not go through the civil law marriage procedure. Although
invariably most people go through the customary procedures and having D completed that, they follow the civil rites procedure, I take it that in
the present case, this was what was contemplated, however relations broke down before the second stage (of civil law marriage) was reached.
But the fact that the parties have undergone a customary marriage procedure and completed all the formalities there required, does not in my
mind, make the customary law marriage subordinate to a civil law marriage. It may be E that a marriage before a district commissioner is
respected by most people but this does not mean that tribesmen do not equally find customary law marriage respectable. In instances where
differences in marriage arise, even in marriages which were later contracted before the district commissioner, the parties almost often are
reconciled by the elders who had been involved in the request in marriage (patlo). Such a customary F marriage may be subordinate in the
sense that is was contracted first but it is accorded some respect, although not the same respect, as that contracted before the district
commissioner.

It is a fact which Aboagye J. recognised in the case of Dorcas Makone, that: G

"It is common knowledge that people accord civil marriages solemnized by district commissioners a higher recognition than customary marriages
and that it is the desire of almost every woman to enter into one. Most women feel odd when they wear wedding rings after entering into customary
marriages. They are of the view that wedding rings are for men and women who have taken marriage vows. The plaintiff's explanation as to why
she H and the defendant wanted to get married before the district commissioner therefore sounds reasonable to me. There is nothing wrong with a
couple married under customary law entering into what is generally accepted as a higher and, maybe, a more respected marriage."

In the present case the Ngwato customary marriage formalities were

1997 BLR p608

GAEFELE AG. J

followed and in such formalities there emerges essentially three elements. These are: A

(i) that the parties have capacity to marry and capacity to marry each other;

(ii) that they consent to the marriage; and

(iii) a request is made for the woman in marriage to representatives of her guardian by representatives of B the man's guardian and
this request is accepted.

See the case of Sennye Moloi & Mmakganeka Maleje v. Mmakgomo Mapotu & Ntshekang Rankgawana Civil Appeal No. F17 of 1990 (Customary
Court of Appeal Civil Case No. 135 of 1989), unreported. C

In the present case the essential elements of a Ngwato customary law marriage had been established. In 1984 the plaintiff's representatives
went to Mahalapye to make a request for the defendant in marriage. According to both plaintiff and defendant an agreement was reached by
both parties' representatives. It is also the parties' evidence that they had agreed to marry. There is also no doubt that they had at the time
the capacity to marry each other. These essentials were also adopted and applied by Aboagye J. in the case of Dorcas Makone. In my D
judgment therefore the formalities and pre­requisites of a Ngwato customary marriage were followed in 1984 and they coalesced into a formal
marriage in December 1986 by reason of patlo. That is the substantial issue between the parties and it is also clear in the pleadings. E

What may have created doubts in the minds of the parties as to whether there was a formal marriage was that the parties did not enter into
the second ceremony before the district commissioner. But that, as I have said, is just another seal to the customary marriage in order to
bestow recognition by taking marriage vows and wearing rings. It is immaterial whether the parties did not undergo a civil rites marriage in the
circumstances of this case. F

I think I am fortified in the view that I have taken of this matter by the provisions of section 6(1) of the Common Law and Customary Law Act
(Cap. 16:01). It is provided therein that,

" in deciding whether an issue arising in civil proceedings is to be determined according to the common law or customary law and, if the issue is to
be determined according to customary law, in deciding which system of G customary law is applicable, the court shall be guided by the following
rules, in which references to the personal law of a person are references to the system of customary law to which he is subject ".

I hope and think this is the upshot of my reasoning in arriving at the conclusion that according to Ngwato customary law of marriage the
transaction to which the parties entered into was a valid marriage transaction. H This is because one of the rules referred to herein above (i.e.
in section 6(1) of the Act) the following rule has been enacted:

"Rule 2. Subject to Rule 1, where an issue arises out of a transaction the parties to which have agreed, or may from the form or nature of the

1997 BLR p609

GAEFELE AG. J

transaction be taken to have agreed, that such an issue should be determined according to the common law or A any system of customary law
effect should be given to the agreement.

In this rule 'transaction' includes a marriage and an agreement or arrangement to marry."

There was also talk about bogadi (may be dowry) and it is also pleaded by the plaintiff. The defendant thinks it B was not paid but rather that
the items which were delivered by plaintiff's representative were delivered in accordance with patlo ceremony.

That the parties are Bangwato can not be doubted and it is also in evidence. In a deep and extensive research by Cotran J., the issue of bogadi
among the Bamangwato was traced. The learned judge said, and I quote C extensively for a proper understanding of that issue, that:

"In or about the year 1875 Chief Khama III of the Bamangwato who reigned until the year 1923 (for the genealogy of the Ngwato and other
Tswana families see 'A Handbook of Tswana Law and Custom' by I. Shapera (2nd ed.) 1955, new impression 1984 at p. 304 henceforth referred to as
Schapera) issued an edict ordering his D people to abandon the practice of declaring children of a couple illegitimate (sic) if no bogadi (or lobola) has
been paid or agreed to be paid to the parents or guardians of the woman who bore the child or children. Chief Khama added that he 'will not in
future try any claims arising from it' (see the Statement of African Law 5 Botswana 1 Tswana Family Law by Simon Roberts published by Sweet and
Maxwell London 1972, hereinafter E referred to as Roberts, at pp. 272 and 273) where the learned author wrote:
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it is unclear how far the practice has in fact been stamped out. Inquiries I conducted during 1969­1970 and on examination of customary court
 In the present case the Ngwato customary marriage formalities were

1997 BLR p608

GAEFELE AG. J

followed and in such formalities there emerges essentially three elements. These are: A

(i) that the parties have capacity to marry and capacity to marry each other;

(ii) that they consent to the marriage; and

(iii) a request is made for the woman in marriage to representatives of her guardian by representatives of B the man's guardian and
this request is accepted.

See the case of Sennye Moloi & Mmakganeka Maleje v. Mmakgomo Mapotu & Ntshekang Rankgawana Civil Appeal No. F17 of 1990 (Customary
Court of Appeal Civil Case No. 135 of 1989), unreported. C

In the present case the essential elements of a Ngwato customary law marriage had been established. In 1984 the plaintiff's representatives
went to Mahalapye to make a request for the defendant in marriage. According to both plaintiff and defendant an agreement was reached by
both parties' representatives. It is also the parties' evidence that they had agreed to marry. There is also no doubt that they had at the time
the capacity to marry each other. These essentials were also adopted and applied by Aboagye J. in the case of Dorcas Makone. In my D
judgment therefore the formalities and pre­requisites of a Ngwato customary marriage were followed in 1984 and they coalesced into a formal
marriage in December 1986 by reason of patlo. That is the substantial issue between the parties and it is also clear in the pleadings. E

What may have created doubts in the minds of the parties as to whether there was a formal marriage was that the parties did not enter into
the second ceremony before the district commissioner. But that, as I have said, is just another seal to the customary marriage in order to
bestow recognition by taking marriage vows and wearing rings. It is immaterial whether the parties did not undergo a civil rites marriage in the
circumstances of this case. F

I think I am fortified in the view that I have taken of this matter by the provisions of section 6(1) of the Common Law and Customary Law Act
(Cap. 16:01). It is provided therein that,

" in deciding whether an issue arising in civil proceedings is to be determined according to the common law or customary law and, if the issue is to
be determined according to customary law, in deciding which system of G customary law is applicable, the court shall be guided by the following
rules, in which references to the personal law of a person are references to the system of customary law to which he is subject ".

I hope and think this is the upshot of my reasoning in arriving at the conclusion that according to Ngwato customary law of marriage the
transaction to which the parties entered into was a valid marriage transaction. H This is because one of the rules referred to herein above (i.e.
in section 6(1) of the Act) the following rule has been enacted:

"Rule 2. Subject to Rule 1, where an issue arises out of a transaction the parties to which have agreed, or may from the form or nature of the

1997 BLR p609

GAEFELE AG. J

transaction be taken to have agreed, that such an issue should be determined according to the common law or A any system of customary law
effect should be given to the agreement.

In this rule 'transaction' includes a marriage and an agreement or arrangement to marry."

There was also talk about bogadi (may be dowry) and it is also pleaded by the plaintiff. The defendant thinks it B was not paid but rather that
the items which were delivered by plaintiff's representative were delivered in accordance with patlo ceremony.

That the parties are Bangwato can not be doubted and it is also in evidence. In a deep and extensive research by Cotran J., the issue of bogadi
among the Bamangwato was traced. The learned judge said, and I quote C extensively for a proper understanding of that issue, that:

"In or about the year 1875 Chief Khama III of the Bamangwato who reigned until the year 1923 (for the genealogy of the Ngwato and other
Tswana families see 'A Handbook of Tswana Law and Custom' by I. Shapera (2nd ed.) 1955, new impression 1984 at p. 304 henceforth referred to as
Schapera) issued an edict ordering his D people to abandon the practice of declaring children of a couple illegitimate (sic) if no bogadi (or lobola) has
been paid or agreed to be paid to the parents or guardians of the woman who bore the child or children. Chief Khama added that he 'will not in
future try any claims arising from it' (see the Statement of African Law 5 Botswana 1 Tswana Family Law by Simon Roberts published by Sweet and
Maxwell London 1972, hereinafter E referred to as Roberts, at pp. 272 and 273) where the learned author wrote:

'This position (i.e. that bogadi is not an essential requirement of marriage) has been subsequently maintained by the tribal authorities but
it is unclear how far the practice has in fact been stamped out. Inquiries I conducted during 1969­1970 and on examination of customary court
records covering the years 1960­1965 suggest it has almost discontinued in the central village of Serowe but that presentation F does still
take place in other settlements particularly those of subject people living in the Ngwato tribal territory.'

By the "subject peoples" it was meant non Bamangwato immigrant tribes who had settled amongst the Ngwato.

It must I think, be acknowledged that only a small number of cases relating to bogadi would in practice have G reached the court of Chief
Khama and I do not think that his edict was necessarily universally accepted or indeed obeyed by lesser chiefs in the chieftainship hierarchy and
this case perhaps serves as an example of what I mean seventy years after Khama's death."

And at p. 15 of the unreported judgment of Cotran J., he said: H

"The Customary Court of Appeal in effect was firmly of the view following Chief Khama III that non­payment of bogadi is neither here or there and it
is not an essential ingredient of a valid marriage though no doubt many Ngwato think its payment cements the bond between the

1997 BLR p610

GAEFELE AG. J

families of the bride and the groom. Chief Khama did not, be it noted, decree that a Motswana man should not A have more than one wife for he
would have a revolution on his hands. What the Chief meant and said (in proper legal terminology) is that 'No Ngwato marriage shall henceforth be
invalid by reason only that no bogadi had been paid if there are sufficient indices to show that a marriage had taken place'. The essential ingredients
of a valid Ngwato customary marriage according to Roberts at pp. 268­71 are: B

(i) the parties have capacity to marry and capacity to marry each other;

(ii) the parties consent to the marriage; and

(iii) a request is made for the woman in marriage to representatives of her guardian by representatives of the man's guardian and
this request is accepted." C

In that case Cotran J. held that:

"The bogadi paid by Nkuthu's consort (or his parents) to the Rankgawana's, remains the property of the latter and cannot be taken back. 'It may
be taken as a general rule' writes Schapera at p. 145 line 15, that 'bogadi is D not recoverable where the marriage has resulted in offspring be they
males or females'."

If I Juta
© 2018 am correct in holding
and Company that from the evidence of the plaintiff and the defendant,
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contracted a valid GMT+0200
07 2023 16:40:39 Ngwato customary marriage
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then the plaintiff cannot reclaim the properties or indeed the expenses which he alleges, in his particulars of claim, that he had incurred as
 "Rule 2. Subject to Rule 1, where an issue arises out of a transaction the parties to which have agreed, or may from the form or nature of the

1997 BLR p609

GAEFELE AG. J

transaction be taken to have agreed, that such an issue should be determined according to the common law or A any system of customary law
effect should be given to the agreement.

In this rule 'transaction' includes a marriage and an agreement or arrangement to marry."

There was also talk about bogadi (may be dowry) and it is also pleaded by the plaintiff. The defendant thinks it B was not paid but rather that
the items which were delivered by plaintiff's representative were delivered in accordance with patlo ceremony.

That the parties are Bangwato can not be doubted and it is also in evidence. In a deep and extensive research by Cotran J., the issue of bogadi
among the Bamangwato was traced. The learned judge said, and I quote C extensively for a proper understanding of that issue, that:

"In or about the year 1875 Chief Khama III of the Bamangwato who reigned until the year 1923 (for the genealogy of the Ngwato and other
Tswana families see 'A Handbook of Tswana Law and Custom' by I. Shapera (2nd ed.) 1955, new impression 1984 at p. 304 henceforth referred to as
Schapera) issued an edict ordering his D people to abandon the practice of declaring children of a couple illegitimate (sic) if no bogadi (or lobola) has
been paid or agreed to be paid to the parents or guardians of the woman who bore the child or children. Chief Khama added that he 'will not in
future try any claims arising from it' (see the Statement of African Law 5 Botswana 1 Tswana Family Law by Simon Roberts published by Sweet and
Maxwell London 1972, hereinafter E referred to as Roberts, at pp. 272 and 273) where the learned author wrote:

'This position (i.e. that bogadi is not an essential requirement of marriage) has been subsequently maintained by the tribal authorities but
it is unclear how far the practice has in fact been stamped out. Inquiries I conducted during 1969­1970 and on examination of customary court
records covering the years 1960­1965 suggest it has almost discontinued in the central village of Serowe but that presentation F does still
take place in other settlements particularly those of subject people living in the Ngwato tribal territory.'

By the "subject peoples" it was meant non Bamangwato immigrant tribes who had settled amongst the Ngwato.

It must I think, be acknowledged that only a small number of cases relating to bogadi would in practice have G reached the court of Chief
Khama and I do not think that his edict was necessarily universally accepted or indeed obeyed by lesser chiefs in the chieftainship hierarchy and
this case perhaps serves as an example of what I mean seventy years after Khama's death."

And at p. 15 of the unreported judgment of Cotran J., he said: H

"The Customary Court of Appeal in effect was firmly of the view following Chief Khama III that non­payment of bogadi is neither here or there and it
is not an essential ingredient of a valid marriage though no doubt many Ngwato think its payment cements the bond between the

1997 BLR p610

GAEFELE AG. J

families of the bride and the groom. Chief Khama did not, be it noted, decree that a Motswana man should not A have more than one wife for he
would have a revolution on his hands. What the Chief meant and said (in proper legal terminology) is that 'No Ngwato marriage shall henceforth be
invalid by reason only that no bogadi had been paid if there are sufficient indices to show that a marriage had taken place'. The essential ingredients
of a valid Ngwato customary marriage according to Roberts at pp. 268­71 are: B

(i) the parties have capacity to marry and capacity to marry each other;

(ii) the parties consent to the marriage; and

(iii) a request is made for the woman in marriage to representatives of her guardian by representatives of the man's guardian and
this request is accepted." C

In that case Cotran J. held that:

"The bogadi paid by Nkuthu's consort (or his parents) to the Rankgawana's, remains the property of the latter and cannot be taken back. 'It may
be taken as a general rule' writes Schapera at p. 145 line 15, that 'bogadi is D not recoverable where the marriage has resulted in offspring be they
males or females'."

If I am correct in holding that from the evidence of the plaintiff and the defendant, there was contracted a valid Ngwato customary marriage
then the plaintiff cannot reclaim the properties or indeed the expenses which he alleges, in his particulars of claim, that he had incurred as
bogadi after the acceptance by the defendant to marry E her. Accordingly in my view the plaintiff's claim for "payment in the sum of P1,047.50,
being expenses incurred for patlo and bogadi" falls away. The plaintiff cannot succeed in that claim.

Breach of Promise of Marriage F

Having decided that there was a valid Ngwato customary marriage, it is not necessary to decide whether there was indeed a breach of promise
to marry. In a case decided in 1958, Montle David Sekonopelo v. Sebedi Keetile 1958 H.C.T.R. 88, the court was of the view that in Tswana law
there is no such cause of action as breach of promise of marriage. I am not to determine the correctness of that statement and I expressly
refrain from making G comment on that. It is not material for purposes of this judgment for the reasons that I have given it is not necessary to
determine this issue. But then what happens of the plaintiff's prayer for payment of the sum of P10,000.00 for breach of promise of marriage? In
holding that there was a valid marriage I think the claim automatically falls off for there could be no claim for breach of promise to marry when
the marriage had actually H been contracted. The plaintiff also fails in its claim for the amount of P10,000.00

In the result the plaintiff's claim is dismissed.

In the ordinary course, success by a party in an action carries with it an order for costs. But in this case I cannot say the defendant
substantially succeeded for the reasons I have given. What was presented in evidence by

1997 BLR p611

the defendant and in the oral submissions by the defendant's counsel has not been given weight to in A thisjudgment. There will accordingly be
no order as to costs.

Judgment granted in favour of plaintiff

for part of claim.

1997 BLR p611

© 2018 Juta and Company (Pty) Ltd. Downloaded : Tue Feb 07 2023 16:40:39 GMT+0200 (South Africa Standard Time)
 is not an essential ingredient of a valid marriage though no doubt many Ngwato think its payment cements the bond between the

1997 BLR p610

GAEFELE AG. J

families of the bride and the groom. Chief Khama did not, be it noted, decree that a Motswana man should not A have more than one wife for he
would have a revolution on his hands. What the Chief meant and said (in proper legal terminology) is that 'No Ngwato marriage shall henceforth be
invalid by reason only that no bogadi had been paid if there are sufficient indices to show that a marriage had taken place'. The essential ingredients
of a valid Ngwato customary marriage according to Roberts at pp. 268­71 are: B

(i) the parties have capacity to marry and capacity to marry each other;

(ii) the parties consent to the marriage; and

(iii) a request is made for the woman in marriage to representatives of her guardian by representatives of the man's guardian and
this request is accepted." C

In that case Cotran J. held that:

"The bogadi paid by Nkuthu's consort (or his parents) to the Rankgawana's, remains the property of the latter and cannot be taken back. 'It may
be taken as a general rule' writes Schapera at p. 145 line 15, that 'bogadi is D not recoverable where the marriage has resulted in offspring be they
males or females'."

If I am correct in holding that from the evidence of the plaintiff and the defendant, there was contracted a valid Ngwato customary marriage
then the plaintiff cannot reclaim the properties or indeed the expenses which he alleges, in his particulars of claim, that he had incurred as
bogadi after the acceptance by the defendant to marry E her. Accordingly in my view the plaintiff's claim for "payment in the sum of P1,047.50,
being expenses incurred for patlo and bogadi" falls away. The plaintiff cannot succeed in that claim.

Breach of Promise of Marriage F

Having decided that there was a valid Ngwato customary marriage, it is not necessary to decide whether there was indeed a breach of promise
to marry. In a case decided in 1958, Montle David Sekonopelo v. Sebedi Keetile 1958 H.C.T.R. 88, the court was of the view that in Tswana law
there is no such cause of action as breach of promise of marriage. I am not to determine the correctness of that statement and I expressly
refrain from making G comment on that. It is not material for purposes of this judgment for the reasons that I have given it is not necessary to
determine this issue. But then what happens of the plaintiff's prayer for payment of the sum of P10,000.00 for breach of promise of marriage? In
holding that there was a valid marriage I think the claim automatically falls off for there could be no claim for breach of promise to marry when
the marriage had actually H been contracted. The plaintiff also fails in its claim for the amount of P10,000.00

In the result the plaintiff's claim is dismissed.

In the ordinary course, success by a party in an action carries with it an order for costs. But in this case I cannot say the defendant
substantially succeeded for the reasons I have given. What was presented in evidence by

1997 BLR p611

the defendant and in the oral submissions by the defendant's counsel has not been given weight to in A thisjudgment. There will accordingly be
no order as to costs.

Judgment granted in favour of plaintiff

for part of claim.

1997 BLR p611

© 2018 Juta and Company (Pty) Ltd. Downloaded : Tue Feb 07 2023 16:40:39 GMT+0200 (South Africa Standard Time)
 substantially succeeded for the reasons I have given. What was presented in evidence by

1997 BLR p611

the defendant and in the oral submissions by the defendant's counsel has not been given weight to in A thisjudgment. There will accordingly be
no order as to costs.

Judgment granted in favour of plaintiff

for part of claim.

1997 BLR p611

© 2018 Juta and Company (Pty) Ltd. Downloaded : Tue Feb 07 2023 16:40:39 GMT+0200 (South Africa Standard Time)
 for part of claim.

1997 BLR p611

© 2018 Juta and Company (Pty) Ltd. Downloaded : Tue Feb 07 2023 16:40:39 GMT+0200 (South Africa Standard Time)