LEARNING UNIT 1

THE LAW

Before we start our study of law as such we will first consider some questions about the nature
of law. Law is made for the people and by the people. it is not cast in stone. Neither is it elevated
above criticism. The law is constantly being recreated. it is thus not a completed monument
from which the student must only lift a veil., but rather an unfinished statute which he must
help complete.

WHAT IS THE LAW?

Much has been written about what ‘the law ‘is. No single correct answer has been found or is
presented here.

The following ideal characteristics of the law may be listed:

1 It consists of a body of rules or regulations facilitating and regulating human
interaction.

2 It orders society and gives certainty.

3 The rules are applied or interpreted by institutions of state. if necessary, they are
enforced ( by employees of the state, such as the police, traffic police authorities or the
sheriff). The legislative authority makes laws; the judicial authority applies the law and
other legal principles; the executive authority enforces the law as a whole. Enforcement
means that some form of sanction will follow non- compliance with a legal rule. A
sanction is a reaction of disapproval following such non-compliance, and can take the
form of punishment (such as a fine or imprisonment), or may be in the form of an order
for compensation (for example, in the case of breach of contract).

But law should be more than just a series of decrees and rules enforced by a brutal display of
state power. It should reflect the shred values of the majority of the population (society).
Underlying any legal system is an ideology (value system) which is important to society and
acts as a unifying force. The following may be part of this ideology:

*Economic values (free market or socialism)

*political values (democracy or one party dictatorship)
*social values (equality or class differences)
* Moral values (conservative or permissive).

LAW AND MORALITY

The law is a set of norms distinguishing good from bad. A norm is a rule regulating human
conduct. Not all norms are legal rules, though. The various normative systems that influence
our lives and determine our conduct are:
1 religion
2 individual morality
3 community mores
The relationship between these normative systems and the law will now be discussed.

*Religion

Religion determines the relationship between an individual and a supreme being. For a
Christian the source of religion lies in the bible, for a Muslim in the Koran and for someone
adhering to African religion it lies in customs handed down, rituals, objects and dances. The
ultimate sanction for non compliance with religious norms is varying forms of the burning fires
of hell.

Religion is often an emotional subject and can lead to extreme views. This also applies to the
relationship between law and religion.

- On the other hand some people are of the opinion that religion and law should be mutually
exclusive. To them religion is a personal conscience. It determines the individual’s destiny
after death. The western (liberal seculiar ) state is based on a distinction between state authority
and religious authority. It is not the task of the state to enforce religious norms or convictions
on its citizens. However, religious freedoms must be made possible by the state, allowing each
individual to exercises a free religious choice. For this reason for example, trade and film
- On the other hand, it is sometimes accepted that religion and law should have the same
content. This appears in its most extreme form in the fundamentalist Islamic religious states,
where law and religion are equated. The Koran dictates that theft is an offence; an offenders
hand must be cut off. The law applies this religious rule in the worldly sphere.

*Individual Morality

Morality is every individual’s ideal self image (or prescriptions for self fulfillment or self-
perfection). This concerns a private conflict between an individual and his conscience. It may
often have the same content a s an individual’s religious views. Sanctions for non-compliance
are varying degrees of pangs of conscience.

Individual morality will often have the same content as legal rules. Honesty, for instance, is
probably the ideal image of the morality of individuals in our society.
This morality is supported in judicial terms, for example in that theft and frauds are offences.
However, the law does not enforce morality as such. An individual may find drinking totally
acceptable. One drop on his lips will fire his conscience.
The law does not take cognizance of his internal conflict.

This conflict is illustrated by the case of Prince vs. President of the Law Society, Cape of
Good Hope and Others 1998 8 BCLR 976 (C). Prince is a Rastafarian. During their religious
ceremonies, Rastafarians use cannabis (dagga). However, the use and possession of cannabis is
a criminal offence (s 4 (b) of the Drugs and Drug Trafficking Act 140 of 1992). Prince has twice
been found guilty of this offence. Consequently, he does not qualify for admission as an attorney
 because the law society does not regard him as a fit and proper person in terms of the Attorneys
Act (53 of 1979).

According to the cape high court, prince constitutional right to freedom of religion is infringed
by s 4 (b), but this infringement is reasonable and justifiable (in terms of section 36 of the
constitution). The implication is that prince must choose: he may either contravene the law and
not be admitted as an attorney, or he must sacrifice his religion for his profession.

This case illustrates the potential clash between law and an individual’s morals, religious views
and the cultural values of the society in which he functions.

* Community Mores
Community mores are the norms of a whole community or group within that community. They
are collective morals. Etiquette, fashion and view about free love or interracial marriage all
form part of this. They differ from religion and morality in that they are not private matters
concerning only a specified individual. The sanction for non compliance is varying degrees of
disapproval boy other members of society. a guest eating his peas with a spoon may find that
he will not receive an invitation again from the formal host. A student wearing a safari suit on
campus is bound to be stared at. A black husband and white wife may find that after their
marriage they are avoided by conservative family members.
Sometimes legal rules and community mores coincide. This applies to the prohibition on killing
a fellow human being and the principle that damage caused unlawfully must be compensated.
 LEARNING UNIT 2
SOURCES OF LAW
By sources of law, we mean the ‘places ‘where law originates and where it can be found. We
are therefore concerned with two questions:

3 Who makes laws? In other words, where does law come from?
4 Where does the student, the legal practitioner or the judge find the laws in order to apply
them to a specific case?

To a great extent these two questions overlap. The places where law originates are generally
also the places where it can be found.

The concept of ‘sources of law’ should not be a strange one, because as far as sources of
Botswana law are concerned, it is important to realize from the outset that we have an
uncodified legal system. This means that there is not only one primary source (code) where the
law originates and can be found. Botswana law has more than one source of law:

*The Constitution
*Legislation (Statutes)
*Judicial Precedent (Court decisions)
*Common law
*Customs/Indigenous law
*Authoritative Texts/Works of modern authors.

Lay people are usually under the impression that our law as a whole originates in legislation
and that consequently one can find it there. This is incorrect. Legislation is an important source
of law, and a whole area of law is codified. The law of criminal procedure, for example is
codified. But our entire legal system is not codified and therefore legislation is not the only
source of Botswana law.

It is of practical importance for lawyers to be aware of the different sources of our law. The
sources provide the key to the content of the law, because it is in those sources that one finds
the law and gets to know it. Furthermore, it provides lawyers with authority for their arguments.
Legal practice is primarily concerned with what the law itself stipulates. Therefore, lawyers
have to support their legal arguments with some form of authority. They must be able to justify
their assertion of a particular viewpoint.

To do so, they may rely on a provision of a statute, a court decision, or the opinion of one of
the old authorities or of a modern author. This statement of principle and authority is used when
law students answer examination papers, or when attorneys and advocates represent their
clients in court or when academics write books and articles. Not all the sources of our law have
the same authority. Some sources have binding authority, whereas others have merely
persuasive authority.

PRIMARY SOURCES OF LAW

THE CONSTITUTION

In 1919 a Native Advisory Council and European Advisory Council were established with
respect to the administration order. The Native Administration Proclamation 74 of 1934 and
Native Tribunals Proclamation 75 of 1934 provided for regularization of tribal rule and powers.
This was resisted by the chiefs. Consequently, Britain granted self government in 1964.
Secondly a 1965 constitution was adopted which led to the first general elections; changing of
capital to Gaborone and to independence.

On the 30 September 1966, the Bechuanaland Protectorate became the independent Republic
of Botswana with Sir Seretse Khama as its first president. The Constitution of the Republic of
Botswana came into effect on independence, and provided for a republican form of government
with three organs of state namely legislature, the executive and the judiciary. There is no
explicit provision making the constitution the supreme law of the land in Botswana. This is
assumed. The case of Attorney-General v Dow illustrates the supremacy of the Constitution
when the majority of the judges of the Court of Appeal agreed that the provisions of sections 4
and 5 of the Citizenship Act were discriminatory and repugnant to section 3 of the Constitution.

The Constitution is strictly followed in application of any law. The courts’ independence is
enshrined in the Constitution .The Setswana phrase, "ga re lebe motho, re leba molato" which
means that 'the law is applied without taking into account the status of the person being tried'
is a guiding principle in application of law.

WHAT IS A CONSTITUTION?

A constitution is a set of rules and regulations by which the government of a state is constituted.
It spells out the form of that government: monarchical or republican, unitary or federal,
parliamentary or presidential.

It proclaims and entrenches the fundamental principles along which the state is governed and
to which all laws in that state must conform. It establishes the principal organs of the state,
prescribes the mode of their establishment, spells out their functions, and regulates their
relations. Also very importantly, a constitution prescribes the length of the rules tenure of
office, and lays down the rules for the orderly transfer of the reins of government from one set
of rulers to another.

The constitution stands to be the supreme law of the land because it stands at the top. It is the
constitution that establishes the organs of the state, allocates them powers, and prescribes their
modus operandi (method of operation). It is the constitution that sets up parliament, vests it
with legislative powers, and prescribes the mode of making laws.

In this respect it is right to say that the constitution is the source or ‘mother’ of all laws made
by parliament since they derive the legitimacy from the constitution.

As supreme law, the constitution takes precedence over all other laws. In case of inconsistency
between the constitution and any other law, the constitution prevails and the other law becomes
void to the extent of the inconsistency.

The Constitution of Botswana set up a Republican Government made of three arms of state
1 The Executive
2 The Legislature and
 3 The Judiciary

The judiciary and Parliament enjoy total independence in their functioning but this does not
remove total accountability for their actions, there are Checks and balances which ensure that
powers are exercised appropriately.
SUPREMACY OF T HE CONSTITUTION

The constitution stands to be the supreme law of the land because it stands at the top. It is the
constitution that establishes the organs of the state, allocates them powers, and prescribes their
modus operandi (method of operation). It is the constitution that sets up parliament, vests it
with legislative powers, and prescribes the mode of making laws.

The constitution is the supreme law of the land, however this supremacy is not stated in black
and white, it is not written down but is assumed

In this respect it is right to say that the constitution is the source or ‘mother’ of all laws made
by parliament since they derive the legitimacy from the constitution.

As supreme law, the constitution takes precedence over all other laws. In case of inconsistency
between the constitution and any other law, the constitution prevails and the other law becomes
void to the extent of the inconsistency.

The constitution came into effect on the 30th of September 1966. Although there is
noexpressed provision making it the fundamental law of the country this assumed.in the case
of pterus & anor v. the state (1984) B.L.R. 14 at p.33 Aguda J.A. put the matter thus:
“under a written constitution such as we have in the republic of botswana, the national
assembly is supreme only in exercise Of legislative powers. It is not supreme in the
sense that it can pass any legislation even if it is ultra vires any provision of the
constitution.i believe it is clear, and this point must be clearly made that every piece
of legislation is subject to the scrutiny of the courts at the instance of nay citizen , or
indeed in an appropriate case at the instance of a non-citizen living in the country, who
has the necessary locus to challenge the constitutionality of the legislation.
The learned judge of appeal reiterated this view in attorney general v. unity Dow where he
said.
“a written constitution is the legislation or compact which establishes the state itself.
It paints in broad strokes on a large canvass the institutions of that state; allocating
 powers, defining relationships between such institution and the institutions and the
people within the jurisdiction of the state, and between the people themselves……the
existence and powers of the institutions of state, therefore, depends on its terms. No
institution can claim to be above the constitution; no person can make any such claim”.
It is clear from this dictum that the constitution is the fundament al law of the country from
which all other laws take their validity. The courts therefore apply the constitutions as the law
to cases before them but they do not enforce any law, which in their opinion, infringes the
provisions of the constitution. Thus in attorney general v. unity Dow, the court of appeal by a
majority held that section 4 and section 5 of the citizenship act were ultra vires the constitution
as they discriminated against Batswana women who marry non- Batswana men. The said
discrimination was that they denied such women the right to pass on Botswana citizenship to
children of such marriages, a right which is not denied Botswana men in the same situation.

Refer to case laws:

a) Attorney General vs. Unity Dow (1992) B.L.R. 119

b) Clover Petrus & Another vs. The State (1984) B.L.R. 14.

c) Student Representative Council of Molepolole college of education vs. Attorney

General ( 1995) B.L.R. 178

LEGISLATION

WHAT IS LEGISLATION?

After the constitution, the next most important form of law is legislation in the form of Act of
Parliament. All acts of parliament have the same rank for non is above the other and if there is
a conflict between any of them, and the conflict is irreconcilable then the latest to be enacted
will take precedence over the earlier one.

This refers to laws passed by parliament. All laws passed by parliament must be styled as Acts.
Botswana’s statutes are enacted by the National Assembly as given in terms s86 of the
Constitution

Legislation is law laid down by an organ of the state which is given power to enact and amend
laws.

Legislature of legal rules by a competent authority. Legislature is the direct source of law.
Legislature frames new laws amends, the old laws and cancels the existing in all countries. In
modern times this is the most important source of law making. The term legislature means any
form of law making. Its scope has now been restricted so a particular form of law making. It
not only creates new rules of law it also sweeps away existing inconvenient rules.

SUBORDINATE LEGISLATION

This is legislation made by a person or body of persons under the authority of Parliament. The
person or authority may by the president, a minister, a head of Governmental department or
institution. A statutory corporation, a statutory body like the university, town or city council.
The reason why its called subordinate is because it is subordinate to parliaments supreme
legislative authority.
Various Acts call subordinate legislation different NAMES , it can sometimes be called orders,
or proclamations, regulations, rules, statutes or bye laws. All these laws are subordinate and
are binding as Acts made by parliament itself.
It only comes in to force unless and until a Minister responsible has approved it. Subordinate
legislation is also called delegated legislation, so called because Parliament being supreme
lawmaking authority, delegates by an enabling Act some of its legislative function to other
some other person or body of persons. However this function must be exercised in strict
conformity with the provisions of the enabling Act.

CUSTOMARY LAW
Customary is applied in the customary courts of Botswana. Customary law is unwritten law
just like common law.
Customary law is defined as rules of law which by custom are applicable to any particular tribe
or tribal community inn Botswana, not being rules that are inconsistent with the provision of
any enactment or contrary to morality, humanity or natural justice.
Custom means any practice that is widely and constantly adhered to by members of the
community over a considerable period of time with the belief that it is binding on them.
Time and has been accepted by the tribe concerned as obligatory behavior. How do these
observances become a source of law?

The Tswana people are said to be of the view that the law existed from time immemorial or
was instituted by God ( Modimo) or by their ancestral spirits( Badimo). Hence the nature of
customary law did not and still does not pose a problem for the customary courts.

Customary is applied in the customary courts of Botswana. Customary law is unwritten law
just like common law.
Customary law is defined as rules of law which by custom are applicable to any particular tribe
or tribal community inn Botswana, not being rules that are inconsistent with the provision of
any enactment or contrary to morality, humanity or natural justice.
Custom means any practice that is widely and constantly adhered to by members of the
community over a considerable period of time with the belief that it is binding on them.
The community must be tribe or tribal community in which are given rule applies and it must
be an African ethnic group.
Additionally for customary law to be recognized as law, it must not be inconsistent with
morality, humanity or natural justice and the Constitution

The creation of the non-customary courts posed a problem because they have to declare what
the customary law is. In the south Africa case of Van Breda & ors. V. Jacobs & ors (1921)
A.D. 330, it was held that in order for a custom to be recognized as law four conditions must
be fulfilled namely:
1 It ha to be shown to be an ancient custom

2 Uniformly observed since its immemorial origin

3 Be reasonable in the sense of being fair to all

 4 Be certain

These may be of persuasive authority in Botswana.

COMMON LAW

Roman Dutch law is said to be the common law of Botswana which was inherited from the
Cape Colony. The Roman Dutch law origin is found in Roman law as influenced by Dutch
customary law. It was introduced to the then-Cape Colony in 1652. Over the years it has been
influenced by the English Common law after British colonization of the Colony. The Criminal
Law of Botswana is originated from the English and evidence is based on South African Law.
In Botswana, it has been developed over years by statutes passed by the Parliament and Judicial
decisions.

he common law and customary law act defines the common law to be any law whether written
or unwritten in force in Botswana other than customary law. The phrase ‘written or unwritten’
in the definition is confusing. Common law by nature is unwritten in the sense that it is not
enacted by the legislature and contained in a statute or code. According to the black’s law
dictionary, common law generally is a body of law that develops and derives through judicial
decisions as distinguished from legislative enactment.. Suffice to say, in developing the
country’s common law, the courts of Botswana draw heavily on principles of the roman Dutch
law. This is the law that was applied in the country soon after the declaration of the protectorate
in 1890. by the Queens order in council o f May 9 1891 the British high commissioner in south
Africa was vested with all powers and jurisdiction which her majesty had or may have…..
Subject to such instructions as he may from time to time receive from her majesty or through
a secretary of state.

JUDICIAL PRECEDENT
The doctrine of judicial precedent is also referred to as stare decisis, which is a Latin phrase
which means “let the decision stand”. In terms of this principle a lower court is bound by the
decision of the higher court. Needless to say, that this doctrine operates effectively upon a rigid
hierarchy of courts and regular system of law reporting. The adherence to the precedent helps
achieve a regime of stable laws that brings about predictability and ensures that law develops
in accordance with community needs.

The colonial government did not attempt to establish a comprehensive courts system until
1938. Judicial functions were discharged by administrative officers. The envisaged court
structure was as follows:
• Judicial committee of the Privy Council
• High court
• Resident commissioner’s court
• Court of assistant Resident

Establishment of the High Court of Botswana and Other Courts

Under the High Court Proclamation No.50 of 1938 a High Court of Botswana was established
in January 1, 1939 as a Superior Court of Record (until it was replaced by another proclamation
named High Court Proclamation No.19 of 1954).This new proclamation did not make any
significant changes. This court was granted unlimited jurisdiction in criminal and civil cases
respectively. It was primary created for Europeans and a court of appeal and review to all
inferior courts. This is expressed by s 2 of the High Court Proclamation. The Chief Justice
presides over the High Court and is appointed by the President.

Native Courts Proclamation No.33 of 1943 (which was repealed by African Courts
Proclamation No.19 of 1961) provided for the recognition of customary courts with limited
jurisdiction in both civil and criminal cases. The 1961 proclamation gave this courts unlimited
jurisdiction in civil matters provided parties were Africans. These courts applied native laws
and customs on African legal disputes within their areas/districts of jurisdiction. The
Customary Court of Appeal is the highest court in terms of customary court hierarchy.

Previously the Judicial Committee of the Privy Council in London was the highest court of
appeals. It was until a Bechuanaland Protectorate, Basotoland and Swaziland Proclamation 32
of 1955 that a court of appeal was established for the three High Commission Territories. The
Court of Appeal is headed by the President of the Court of Appeal and is also appointed by the
President. It is the highest court of appeal. Its decisions are binding on all other courts. It also
has no original jurisdiction. The president also elects judges and justices of appeal acting on
the advice of the Judicial Service Commission. This Commission is made up of the Chief
Justice, chairperson of the Public Service Commission and a third member appointed by them.

Magistrates courts has jurisdiction within their particular districts. They mainly apply common
law and may hear some customary law issues.

The current hierarchy of Botswana Courts is as follows:

• Court of Appeal
• High Court
• Magistrate Courts
• Customary Court Commissioner/Director tribal administration.
• Customary Court of Appeal
• Customary Courts

The doctrine of binding precedent is founded on the traditional view of the function of a judge
in the English System that he does not make law but merely declares and applies the existing
law to the facts of a particular case. However, judges refer to earlier cases not merely as
guidance but because they are bound to apply the rule of law contained in them. In the course
of doing this, they sometimes widen and extend a rule of law or advice a rule by analogy with
existing rules or even create an entirely new principle. In declaring and applying the law in
this way, judges thereby develop the law.

Although it is said that judicial decisions are binding on similar cases, what is actually binding
is not the “decision” as such but rather the legal principle on which the decision is based or
the legal reason for the decision.

THE BINDING LEMENTS IN PRECEDNTS

RATIO DECIDENDI

It is strictly not correct to state that a previous decision is binding on a court. The only part
that is binding is that part that stated the rule of law upon which the decision was based.
This is the part referred to as the ratio decidendi (reason for the decision). The status of the
court has a significant effect on whether its decision will be binding, persuasive or
disregarded. Every decision contains the following elements:

• Finding of material facts, direct and inferential. An inferential finding of fact is the
inference, which the judge draws form the direct or perceptible facts. For example,
from the direct facts of the speed of the car, the skid marks and the state of the road,
a judge may infer negligence on the part of the driver.
• Statements of the principles of law applicable to the legal problems disclosed by the
facts, and
• Judgment based on the combined effect of (1) and (2) above.

The ratio decidendi is that which forms the binding element, which a court in a subsequent
case may follow. Thus the material fact of the case plus the decision thereon, is what
constitutes the precedent.

In determing the ratio of a case, the courts will usually consider any one of the following
factors:

• The reason stated by the trail judge as being the basis of his decision
• The principle of law stated by the trial judge as that on which the decision is based.
• The actual decision in relation to the material facts; and
• The interpretation of the case in any later case determined before the instant
case.

OBITER DICTIM

In a legal decision

it is not every statement of law stated in the judgment will be binding on a later court faced
with a similar decision.

Apart from ratio decidendi the other statements of law are not binding on a later court. These
other statements are referred to as obiter dicta ( or dictum singular) this phrase means
“something said by the way or a chance remark”. The obiter dictum may be in two kinds
namely:

• A statement of law based upon the facts which either were not found to exist or if
found to exist were not found to be material.
• Statements of law which although based on the facts as found, did not form the basis
for the courts decision

SPECIFIC RULES OF PRECEDENT

Court of appeal

The court of appeal stands at the apex of the hierarchy of courts in Botswana. Its decisions
are binding on all other courts in the country.

This was made clear in the case of state v. Nkani (1980) B.L.R. 195 at p. 201.

In this case the accused was charged with murder which had been committed in the belief
that the deceased had brought abut the death of the accused’s mother by witchcraft. The
court of appeal is not bound by its own previous decisions but will normally follow them
in the interest of certainty. It will be free to depart from them if it considers any them to
be wrong and their continuous existence will lead to injustice.

The court replaced the judicial committee of the Privy Council as the highest court in
Botswana.

The high court

The high court is bound by the decisions of the court of appeal but is not bound to follow
its own decision if it is convinced that it was wrong.

A high court judge is not bound by the decisions of another high court judge though he
would treat it as strong persuasive authority especially when the court is made up of more
than one judge. Decisions of the high court bind all magistrates’ courts.
The magistrate’s courts

Magistrate courts do not make precedents. Their decisions are not reported and being
below the court of appeal and the high courts they are bound by the decisions of these
courts. However, where there are two conflicting decisions of the high court, the court is
at liberty to choose which one to follow.

The customary courts

Customary courts are empowered by s.14 of the customary courts act to apply principally
customary law hence the common law doctrine of precedent is not applicable in these
courts. However, in principle because appeals from these courts reach the high court and
the court of appeal, customary courts should follow the decisions of these higher courts
in matters pertaining to customary law.

This is highly unlikely because the law does not allow lawyers, who are likely to bring the
relevant precedents to the attention of the court, to appear before these courts.

Advantages and disadvantages of judicial precedent

The following may be said to be the strengths and weaknesses of this source of law.

• It lends consistency to the law: the rationale of following biding precedent is that
the law is decided fairly and predictably.

Consequently in theory it is possible to avoid litigation because one can predict

the outcome of a dispute. In practice however, judges are sometimes forced to
make illogical distinctions to avoid unfair results in particular cases. This, combined
with the numerous reported and unreported cases, has tended to complicate the
law.
 • Following only the reasoning in the ratio of previous cases should lead to the
application of general principles. Practical reality though is to the contrary. The
same judgment may contain propositions, which appear inconsistent with each
other or with the precedent, which the court purports to follow and this may lead
to uncertainty.

• It provides the much needed flexibility to the law. Judicial precedent being based
on actions brought before the courts is able to change with the circumstances of
the society. The other side of this coin is that it also serves to inhibit the judge’s
discretion in that by following a binding precedent an unfair result sometimes
occurs. Legislation in that circumstance is the only way then to rectify the
attendant injustice.

SECONDARY SOURCES OF LAW

1. AUTHORTATIVE TEXTS

This refers to writings by leading authorities in the field of Law as already noted
books written by Roman Dutch jurists are authoritative sources of Roman Dutch
Law and treated as such in the courts. They are treated as sources under the heading
of the Common Law because of their special nature. Under this heading reference
must be made to modern text books and scholarly articles or publications. These
have no inherent authority on their own but they may be regarded as very persuasive
sources of law where neither Legislation nor case law is in point e.g. that explaining
a legal point which is not clearly covered in Legislation or Case Law. The
persuasive nature of an opinion of an author depends inter alia on the standing of
the author in the fields of law in question, the reputation of the author among judges,
the scholarly level of the piece of work involved and the convincing nature of the
presentation. In our jurisdiction some text books are highly regarded e.g. Christie
(the law of contract), Burchell and Hunt and Milton (Principles of Criminal Law,
Hahlo and Kahn Background of South African Law, (Law of Contract).
2. LAW REPORTS

Is an essential component of system based on precedent, is an effective system

where laws of precedent are recorded to ensure that they are available to those
wishing to discover the law. All judgments from the Superior Court, High Court
are required by law to be inviting. This also applies to other courts lower than the
Superior Courts. Once a decision has been made and a judgment delivered it is then
meant to be available to the public and can be referred to under the presidency
system. Most countries including Zimbabwe have a system in which all judgments
delivered are scrutinized by legal experts with a view to select some of them for
publication in law reports. Thus some judgments may be selected before publication
while others remain unpublished in the law reports.

A judgment which is not selected before publication is described as unreported

while that which is published is described as reported. An unreported judgment has
the same precedent value as a reported judgment. The decision as to which
judgments are reported in the Zimbabwean Law reports is made by a group of self
appointed editors. Judges sometimes mark their judgments as not reportable. This
is merely a judge’s suggestion that there is not much legal value in reporting the
judgment. A full law report usually includes the following details:

Name of the parties, the court in which the case was decided, name of the judge or
judges, date of hearing, list of cases discussed or cited, names of lawyers and
indication of whether the judgment was on reserve and a head note with a summary
of decision prepared by the court.
 LEARNING UNIT 2

THE FUNCTINS OF THE LAW

The main functions of law can be summarized under the following heads:

• The maintenance of social order

• The regulation of economic activities
• The settlement of disputes
• The protection of property rights
• The protection of interests
• The regulation of the principal organs of power

3.1.1. The maintenance of social order

The maintenance of social order and public order is the primary function of law. The law acts as a
method of settling disputes through the creation of legal institutions which are responsible fro defining
deviant behavior. These institutions determine the boundaries of acceptable behavior and prescribe
sanctions for any breaches.

In addition law acts as a method of settling disputes through legal rules; a legal system is created which
carries out many functions of social control. This usually consists of officials such as police who arrest
burglars, prosecutors who prosecute them, judges who convict and sentence them and prison guards
who watch over them. Law is also instrumental in the preservation of public order through the protection
off civil liberties and human rights. However the protection of these rights may not always be consistent
with the preservation of public order.
3.1.2. The settlement of Disputes

The law and the legal systems in particular, provide a comprehensive framework of legal rules and legal
institutions both for preventing as well as settling disputes. The law provides, through the law courts
and other tribunals, the final and authoritative means for settling all disputes that arise in society.

3.1.3. The regulation of economic activities

Laws are needed not only to ensure free and fair competition but also to check against fraud and abuse
of trust.

There are laws that regulate the activities of certain professional organizations such as attorneys,
doctors, architects, nurses and engineers. Housing is regulated through housing laws and land use
through planning law. That laws that regulate industry also attempt to protect the environment. Law
therefore sometimes plays a contradictory role. It is used to facilitate economic activities whilst at the
same time it tries to limit any excesses that may result from such activities.

3.1.4. The protection of property rights

One of the very important functions of the law is that of determining the conditions for the recognition
and protection of rights in property, whether in land or other forms of security. Without clearly defined
rules that define the rights of ownership of property and the procedure for the transfer of such rights
from one person to another, potential investors, especially from abroad, would not invest in the country.

3.1.5. The protection of interests

Law protects both the interests of the state and those of its citizens. It specifies the circumstances when
there will be liability for an unlawful or wrongful act or omission that infringes the individuals or states
interest.

State interest is usually protected through criminal law, even where the actual victim of the act or
omission is a private individual. The reason for this is that the state has an interest in the preservation
of public order and tranquility.

Private interest is protected y the criminal law as well as a number of other laws that regulate human
relationships in society. The conditions and other incidents of marriage are defined by law. The law
provides a frame work for the distribution of assets on the breakdown of marriage and the treatment of
children. The law of delict provides the rules for awarding damages to people who suffer loss or injury
as a result of the wrongful acts or omissions of others or whose property; reputation or other interest is
damaged. The law of contract provides the rules that ensure that mutual promises freely exchanged by
parties are respected, failing which damages are warded to compensate the innocent party.

The law protects individual interest against encroachment by the state. Thus in Attorney General vs.
Dow (1992) BLR 119, the court of appeal upheld the constitutional right of a woman not to be
discriminated against.

3.1.6. The Regulation of the Principal organs of power

The law is there to regulate the principal organs of power. Legal rules have been the most effective
means of regulating and controlling the actions of government. These legal; rules usually attempt to
prevent arbitrary rule or the abuse of powers by for example, defining the powers of the different organs
of government and administrative agencies and providing rules for succession to power. and the main
instrument that contains these rules is the constitution.

LEARNING UNIT 4
CLASSIFICATION OF LAW
INTRODUCTION

Law is usually divided into certain broad categories or divisions. Theses divisions both reflect the way
law has developed and the way it is studied. Such division provides a useful indication of the links
between the different branches of the law. The main divisions are:

• National law and international law

• Common law and civil law

• Private law and public law

• Civil law and criminal law

• Common law and statutory law

• Substantive law and adjectival or procedural law.

• Law and equity.

CLASSSIFICATION OF LAW

Law may be classified in various ways but it must be borne in mind that these classification overlap in
some cases and should not be treated as being in watertight compartments. The following are the main
classes into which law may be put.

LAW

National law International law

Substantive Adjectival (procedural law)

Civil law Criminal law

Public law Private Law

Common law Equity

National law and International Law

National (municipal) law is the law operating within the boundaries of a particular state. In this sense,
all the above classification will be deemed national laws sub-branch of national law is private
international law, which sets out which national law governs a case with a foreign element. Thus if
Masie, a mostwana enters into a contract with Van der merwe, a south African, in Durban to supply
cars to a company in Harare and van der merwe failed to supply the eggs the question may arise which
law will govern the contract. If Masie were to sue van der merwe in Botswana, the court in this country
will have to determine by the rules of private international law –Botswana, South Africa or
Zimbabwean-is to be applied.

Public international law sets out rules that govern the relationship between sovereign states. Thus in the
dispute between Botswana and Namibia over the sovereignty of Sidudu island, public international law
was used to resolve the dispute.

Substantive and adjectival law

Substantive law deals with the determination of the rights and duties of persons. This branch of will
include most of the contents of the above classification. For example, criminal law is part of substantive
law because it defines criminal conduct and the various punishments for the infringement of such
conduct. Adjectival or procedural law determines the ways and means by which the rights determined
by substantive law are enforced. This consists of civil and criminal procedure and the law of evidence.
Criminal and civil law

Civil law is that part of the law that governs the relationship between invidiuals and defines their rights
interse. Criminal law is that part of the law, which characterizes certain kinds of conducts as offences
punishable by the state. Such conduct need not necessarily violate any private right of an individual.
The same wrongdoing may constitute a crime as well as a civil wrong ( delict). This may give rise to
the question of which of the two wrongs should be first brought before the court. At English common
law, there used to be a rule enunciated in smith v Selwyn 1914 (3) K.B. 98 to the effect that litigation
of the civil wrong was to be postponed until the criminal offence has been dealt with. The application
of this rule in Botswana is doubtful but the provision of s. 12 of the criminal procedure and evidence
act may give a clue to an answer. That section provides that neither a conviction nor an acquittal
following any prosecution is a bar to a civil action for damages at the instance of any person who may
have suffered any injury from the commission of the alleged offence. It may be concluded from this
that the criminal prosecution takes precedence over the civil proceedings.

The main distinction between the two proceedings is that the object of criminal proceedings is to punish
the offender whilst that of civil proceedings is to compensate the person whose right was infringed. In
criminal proceedings, the state is primarily concerned and it seeks redress on behalf of society in
general. In civil proceedings the state is not primarily concerned, it is the individual whose right has
been violated who seeks redress.

Public and private law

This overlaps with the above class because civil law is sometimes referred to as private law as distinct
from public law of which criminal law forms a part. Public law deals with the relationship between the
state and the individual and also between the various state organs. Private law concerns itself with
regulating the relationship between individuals.

The main branches of public law are constitutional law, administrative law, criminal law and adjectival
law. Constitutional law regulates the structure, functions and relationship of the principal organs of
government, such as the executive, judiciary and the legislature. In most countries with a constitution
embodied in a written document like Botswana, the constitution stand legally above all other types of
,law, public or otherwise. Administrative law regulates the functions of governmental and
administrative agencies.
Procedural law prescribes rules by which litigation is conducted and allegations proved in a court of
law.

The main branches of private law are the law of persons, family law, the law of obligations and the
law of things (property)

The law of persons deals with the origin, status and the end of persons as legal subjects. Family law
regulates family relationship, marriage and divorce. The law of obligation deals with situations where
one person has a right to a performance and another person has a duty to render that performance. This
obligation may be as a result of a contract or delict or other causes. Contract determines whether a
promise is legally enforceable and what are its legal consequences. Delict deals with obligations
imposed by law independent of agreement. Other causes that may give rise to an obligation are
marriage and unlawful enrichment. The law of things (property) determines the nature and extent of
rights, which a person may enjoy over things such as land or a car. Thus ownership, pledges and
mortgages form part of this law.

Common law and equity

This particular classification is peculiar to English law. It describes the law that was developed by the
old common law courts of England from the mass of customary rules existing within the king’s realm.
At the time of the Norman conquest of England in 1066 there was no system of law common to the
whole of England. Local manorial courts applied rules of local customs. To improve the system the
king sent royal commissioners on tour of different parts of England to deals with crimes and civil
disputes. Theses commissioners who often heard their cases with the assistance of a local jury, at first
applied the local customary law of the locality. On their return from tour the commissioners sat in the
royal courts in London to try cases there. In time the commissioners in their judicial capacity developed
rules of law, selected from the different local customs which they had encountered on their tours of
the country, as a common law which they applied uniformly in all trials throughout England. As years
went by the common law became rigid and technical. Most litigants were unable to get redress for their
grievances in the common law courts. They therefore petitioned the king to obtain relief by direct royal
intervention. These petitions came to the king in council and by custom were referred to his chief
minister called the chancellor, who was usually a cleric. In dealing with each petition the chancellors
concern was to establish the truth of the matter and then to impose a just solution without undue regard
for the technicalities or procedural points of the common law courts. Because the principles on which
the chancellor decided cases were based on fair dealing between the parties as equals, they became
known as equity. This system of equity was not a new system, rather it was a means to add to and
improve on the common law and it provided a gloss on the law.

When the term “common law” is used in the Botswana context, it usually means the combination of
the received roman-Dutch law and legislation passed by parliament. This meaning has been criticized
as misleading as it gives the impression that it is generally applicable whereas the truth is that it applies
only to certain areas of the legal system.

ADMINISTRATION OF JUSTICE

INTRODUCTION

THE COURTS WITH GENERAL JURISDICTION

Courts are necessary institutions in any democratic society in that they provide an impartial
forum in which disputes between individual citizens or institutions and disputes between
citizens and the state can be peacefully resolved.

They also play the important role of declaring the rights of citizens and of providing relief and
remedies for the violation of human rights.

The courts with general jurisdiction also known as courts of normal or ordinary jurisdiction.

The classification of Courts

Courts may be classified in many different ways. The main classifications are into:

i) superior courts and inferior or subordinate courts

ii) courts of record and courts not of record
iii) civil courts and criminal courts
iv) courts of first instance and trial courts
v) courts and tribunals
 vi) Courts of general, ordinary or normal jurisdiction and courts of special jurisdiction.
.superior courts and inferior or subordinate courts

The first classification, that between superior courts and inferior or subordinate courts is
referred to in rather circumlocutory manner in the Botswana Constitution. Section 127 of the
Constitution in defining

“Subordinate court” states that this means any court established for Botswana other than –

a) the court of appeal

b) the high court
c) a court martial; or
d) the industrial court
Generally, the jurisdiction of superior courts is neither limited by the value of the subject matter
nor geographically and they tend to deal with the more important and difficult cases.

On the other hand the jurisdiction of inferior courts is limited both geographically and
according to the value of the subject matter of the dispute. Another distinctive feature of inferior
courts is that they are amenable to the supervisory jurisdiction of the high court.

List of inferior courts in Botswana.

• Magistrates courts
• Customary courts
. Courts of record and courts not of record

The construction of Botswana in section 95(3) with respect to the high court and section 99(4)
with respect to the court of appeal declare both courts (High Court and Court of Appeal) to be
superior courts of record.

The difference between the courts of record and courts not of record is in relation to contempt
of court; the penalties which may be imposed by inferior courts are far less that those that may
be imposed by superior courts of record.

Civil Courts and Criminal Courts

Civil courts deal only with civil matters such as disputes concerning breach of contract, labor
disputes, liability for ham done, and familial disputes, whereas criminal courts deal with
accusations, frequently brought on behalf of the state by the Director of public prosecution
against person who have infringed the rules for good social behavior lad down in the penal
code.

However currently in Botswana there is no court that deals with purely civil cases and criminal
cases.

Trial courts and appellate courts

Trial courts or first instance courts as they are known, hear evidence and decide the facts,
ascertain and apply the relevant law and thus reach a decision to matters brought at first
instance. Appellate courts on the other hand, consider appeals against the decision of courts of
first instance and mat reverse or amend the decision as they think proper. Appellate courts are
often composed of several judges and may be empowered or required to retry the case or simply
decide on the basis of the record made in the court below of its findings of fact and conclusion
of law or may proceed solely on written records of the proceedings in the court below.
However it is also not accurate to classify courts into trial courts and appellate courts because,
whilst there are some courts that have purely appellate jurisdiction such as the court of appeal,
there are others, such as the high court which has both trial and appellate jurisdiction.

Courts and Tribunals

Some of the bodies which settle dispute are referred to as courts and others as tribunals. The
distinction between a tribunal and a court was properly elaborated in the case of Botswana
railways organization vs. Setsogo and others. One of the main issues that the court of appeal
was faced with was the contention that the industrial court was not a court. The court of appeal
in holding that the industrial court was a court said:

In the final analysis, therefore, I find that an institution is a court if it is established by

the states, in the sense that it is created by its created by its constitution or by its
legislative body, such as parliament, acting under the powers conferred by the
constitution, as an adjudicative body which hears an determines disputes between
person within the jurisdiction of the state or the sate itself brought before it by the state
or other person and does so by applying the laws of the state or at least the laws of
natural justice and whose decisions are enforced by the coercive power of the state.
On the other hand, the term “tribunal” is said to generally mean any “judicial assembly”
including a court.

In its narrow sense, tribunal refers to judicial assemblies other than courts. Where such
assemblies are established by the state, they are referred to as administrative tribunals” to
distinguish them from domestic tribunals established by non- state institutions such as
professional and sporting associations and trade unions as part of their disciplinary procedures.

THE HIGH COURT

The high court is the centerpiece of the whole judiciary. It is made up of the chief justice, who
is the head of the judiciary. It is made up of the chief justice, who is the head of the judiciary,
and other judges of the court whose number is prescribed by parliament. Parliament has in turn
vested in the president the power to determine from time to time the number of such judges.
The high court is a superior court of record. This means that it is a court of general jurisdiction;
it keeps a record of its proceedings as conclusive evidence of what it contains; and has power
to fine and imprison any person for contempt of its authority.

Regarding its jurisdiction, the high court has unlimited original jurisdiction in both civil and
criminal matters. It has powered to entertain any civil suit and to grant any remedy or relief
that may be available under the law. Subject to the applicable principles of customary and
conventional international law, it also has power to try criminal offence that is cognizable under
Botswana’s criminal law. Additional powers of the high court include the power to hear and
resolve questions involving the interpretation of the constitution in general and the provisions
relating to human rights and fundamental freedoms in particular. The court also has power to
hear and determine election petitions, but its decisions in these matters are final and not
subjected to appeal. The court also possesses supervisory powers over civil and criminal
proceedings before any subordinate court or any court martial. To that end it may make such
orders, issues such writs and give directions as it may consider appropriate for the [purpose of
ensuring that justice is duly administered by any such court. It is in exercise of these powers
that the court may review and vary the decisions of subordinate courts.

With respect to the courts martial the Botswana defense Act explicitly empowers the high court
to entertain appeals from any person convicted by a court martial. Lastly the, the high court has
power to hear appeals from any decision of a magistrate court or customary court of appeal.
However, the court has no power to entertain any criminal appeal instituted by the attorney
general or by a private prosecutor unless the appeal relates to a matter of law against a finding
or acquittal. When a criminal appeal is properly before it the high court may do any of the
following:

a) Confirm , amend or set aside any judgment , decision or order of any magistrate court
or a customary court of appeal;

b) Order a new trial of any cause heard or decided in any magistrate’s court or a customary
court of appeal, or direct that such new trial shall be heard in the court;

c) Receive further evidence or remit the caser to the court of first instance for further
hearing , with such instructions as to further proceedings as the court may deem
necessary;

d) Impose such punishment, whether more or less severe than, or of a different nature
from, the punishment imposed by the court of first instance, as in the opinion of the
court ought to have .bneen imposed.

In civil appeals the court has power to:

a) Dismiss the appeal;

b) Reverse a judgment made upon a preliminary point and on such reversal, remit the case
to the magistrate court with direction to proceed to determine the case on its merits;

c) Resettle issues and finally determine a case, notwithstanding that the judgment of the
magistrates court or the customary court has proceeded wholly on some ground other
than that on which the court proceeds;

d) Call additional evidence or direct the magistrate court or customary or any magistrate
or customary court or any magistrates court or customary court to take additional
evidence;

e) Make any amendment or any consequential or additional order that may be just and
proper;

f) Confirm, reverse or vary a judgment;

g) Order that a judgment be set aside and a new trial held;

 h) Make such order as to costs both in the court and in the magistrate’s court or the
customary court as may be just and proper.

THE COURT OF APPEAL

The court of appeal is also established by the constitution. Like the high court, it is a superior
court of instance with powers of such a court. However, unlike the high court, it is the last court
of instance. This means that there is no other court above it. A provision in the independence
constitution provided for appeals from the court of appeal under circumscribed instances, to
the judicial committee of the Privy Council in Britain. The provision was however repealed in
1973 as being incompatible with Botswana’s independent and sovereign status.

As to its composition the court of appeal consists of the president of the court of appeal who
may or may not be the chief justice ex officio, and such number of justices of appeal as
parliament may prescribe. As with the high court, parliament has vested in the president the
power to determine from time to time the number of such justices of appeal that are necessary6
for appointment.

The constitution and other acts of parliament confer jurisdiction and powers on the court of
appeal. As noted earlier, it has power to hear appeals from the high court on issues relating to
the interpretation of the constitution and alleged violations of human rights and fundamental
freedoms. Regarding its other powers one has to refer to the court of appeal act. The act is the
most important statute regarding the court, its jurisdiction, powers, composition, quorum
procedures and other matters connected therewith. It provides for appeals to the court ‘as of
right’ and ‘with leave’ either of the court or of the high court. In addition to appeals specifically
provided for under the constitution appeals lie to the court of appeal ‘as of right’.

a) From any final decision in any proceedings before the high court sitting at first instance;

b) From any decision of the high cour5t in the exercise of its powers under section 18 of
the constitution.

c) By a convicted person from any order of the high court in the exercise of its revisional
jurisdiction altering a conviction or sentence.

d) In any case where express provision for such appeal is made under any written law
 The court of appeal will not entertain any appeal unless such appeal is specifically provided
for under some law. A number of statutes provide for appeals to the court of appeal from
decisions of the high court sitting as an appellate court in cases originating from
administrative tribunals. The Tax Act is one of them. It allows the commissioner of taxes
and any other person who may be aggrieved by a decision of the high court to appeal against
such a decision to the court of appeal if that decision involves a question of law or a fact
and law. But in any other case the decision of the high court on an appeal shall be final and
not subject to further appeal. The Botswana defence act is another. It provides for appeals
from decisions of the high court sitting as a court of appeal on decisions of a court martial.
It is however silent whether such appeal is automatic or by leave. It is to be assumed that it
is the latter. The trade disputes Act also provides for appeals from decisions of the industrial
court directly to the court of appeal.

Regarding ‘appeals by leave’ the court of appeal act provides that an appeal shall lie form
any decision of the high court to the court of appeal with the leave of the high court or , if
such leave has been refused, with the leave of the court of appeal, in the following cases;

a) From any interlocutory order

b) From any order relating to costs

c) From any order made with the consent of the parties;

d) From any decision in any civil or criminal proceedings given on appeal from any
other court to the high court

e) In any case where express provision for such appeal is made.

MAGISTRATE COURTS

The statute governing magistrate’s courts is the Magistrates Courts Act 1974 as subsequently
amended. The latest amendment is the Magistrates Courts (Amendment) Act 2004. Under this
amendment, there are seven grades of magistrate’s namely regional magistrates, chief
magistrates, principal magistrates, senior magistrates; magistrates grade 1, magistrate grade II
and Magistrate Grade III.

REGIONAL MAGISTARTES

Civil Jurisdiction
The jurisdiction of regional magistrates is as follows:

a) In all civil claims where the total amount by way of liquidated or un liquidated damages
or the value of the property claimed does amount exceed P40000.
b) In actions of ejectment against the occupier of any premises or land provided that the
right of occupation of any such premises or land in dispute between the parties does not
exceed P 40000 in value.

Criminal Jurisdiction

Jurisdiction in this context may mean one of the following:

a) Authority to deal with the criminal case, excluding authority to impose a sentence. For
example, magistrates Grade 1 has jurisdiction to hold a preparatory examination of the
evidence against an accused under section 60 of the criminal procedure and evidence
Act. In exercising this jurisdiction, the magistrate cannot impose any penalty because,
as the name of the proceeding makes it clear, it is not a trail but an examination of the
prosecution’s evidence against the accused.

b) Authority to deal with a criminal case, including the authority to impose a sentence.
Sections 60a and 61 of the magistrates courts act provides for this in relation to all
grades of magistrates.

c) Authority over a geographical area. Under section 9 of the magistrates courts act,
magisterial districts are established and these are taken to be the administrative districts
set up under the administrative districts act. The administrative districts are North-
East;Central; Kgatleng; Kweneng; Southern;South East; Ghanzi; North-
West;Kgalagadi; Gaborone; Francistown and selebi Phikwe.

• See: Attorney General v Phute (1987) BLR 460

Section 61(1) limits the regional magistrate’s power to impose a sentence of imprisonment to
15 years or a fine of P40000 or both. However he may impose a maximum sentence of 20 years
imprisonment where a minimum sentence has been prescribed for the commission of a
particular offence. A regional magistrate can impose a sentence of whipping up to 12 strokes
in circumstances where such punishment is permitted by law for the commission of an offence.
Apart form the above powers that a regional magistrate has, the chief justice may also assign
him to supervise the administration of justice in any magisterial district. Where a regional
magistrate is assigned supervisory duties, he may, in consultation with the magistrate in charge
of the district where the work emanates allocate work or allocate work between a magistrate in
one district and magistrate in another district.

CHIEF MAGISTRATE

Civil Jurisdiction

Under section 30 of the magistrates courts act, a chief magistrate has the same jurisdiction as a
regional magistrate.

Criminal Jurisdiction

Section 60(1) of the magistrate courts act provides a chief magistrate with the same criminal
jurisdiction as a regional magistrate. Section 61 also gives him the same sentencing [powers as
a regional magistrates.

PRINCIPAL MAGISTRATE

Civil Jurisdiction

The principal magistrate has a similar jurisdiction in civil and criminal cases as chief magistrate
but his jurisdiction in civil cases is limited to claims where the total amount claimed does not
exceed P 30000. In actions for ejectment his jurisdiction is also limited to premises or land
which value does not exceed P30000.

Criminal Jurisdiction

In criminal cases, the principal magistrate has power to impose sentence of imprisonment not
exceeding 12 years or impose a fine not exceeding P30000 or both. A principal magistrate may
impose a maximum sentence of 20 years where a minimum sentence is prescribed for the
commission of a particular offence and may impose a sentence of whipping of up to 10 strokes
where the law permits such punishment for the commission of an offence.

SENIOR MAGISTRATES

Civil Jurisdiction

In civil cases, a senior magistrate has jurisdiction to try cases where the total amount acclaimed
either by liquidated or unliquidated damages does not exceed P20000 and in the case of
ejectment the value of the premises or land does not exceed the same amount.

Criminal jurisdiction

The criminal jurisdiction of a senior magistrate is the same as that of a regional magistrate,
chief, principal magistrate. However a senior magistrate sentencing powers is limited to the
imposition of a sentence of ten years imprisonment or fine of P 20000 or both. Unlike the
regional magistrate, chief magistrate and principal magistrate, no maximum sentence is
prescribed for a senior magistrate where the law prescribes a minimum sentence for an offence.
Such a magistrate may however impose a sentence of whipping of up to 9 strokes where this is
permitted by law.

MAGISTARTE GRADE 1

Civil Jurisdiction

This grade of magistrates has civil jurisdiction in claims where the total value does not exceed
P15000

Criminal Jurisdiction

In criminal cases they have jurisdiction to try offences for which the maximum punishments
prescribed do not exceed 10 years. Sentencing powers of these magistrates are limited to the
imposition of a maximum of seven years imprisonment or P15000 fine or both. Where corporal
punishment is imposed, a maximum of seven strokes may be administered.

MAGISTRATE GARDE II

Civil Jurisdiction

A magistrate Grade II has civil jurisdiction in claims not exceeding P10000.

Criminal Jurisdiction

In criminal cases, a magistrate grade II HAS THE SAME JURISDICTION AS A Magistrate

Grade I. however; such a magistrate may impose a maximum sentence of five years
imprisonment or a fine of P10000 or both.

Where corporal punishment is imposed this is limited to five strokes.

APPOINTMENTS OF MAGISTRATES

Magistrates are appointed by the president acting in accordance with the advice of the Judicial
Service Commission. The appointment may be made to one of the categories of magistrates
provided by law. Under the magistrates Courts Acts there are seven grades of magistrates. The
qualification for appointment to the various grades of magistrates shall be prescribed from time
to time by the president in accordance with the advice and in regard to any particular candidate,
waive the qualifications for appointment to any grade of magistrate to facilitate the
localization of the public service. The current qualifications for appointment are:

a) An expatriate having the right of audience before the court of similar jurisdiction as that
of the High Court of Botswana should have experience of at least-
i) 10 years for appointment as Regional/ Chief Magistrate;
ii) 7 years for appointment as senior magistrate;
iii) 5 years for appointment as magistrates grade 1
b) Motswana law graduate of the university of Botswana or of other recognized university
institution should be eligible for
 i) Appointment as magistrate Grade II on graduation and suitable in service
training
ii) Promotion or appointment as magistrate Grade I after 6- 12 months service as
Magistrate Grade II or as state counsel or one year’s practice at the Bar;
iii) Promotion or appointment as senior magistrate after service as magistrate grade
1 or state counsel or 4 years practice at the bar.
iv) Promotion or appointment as principal magistrate after 2 years experience as
senior magistrate or 5 years experience at the bar;
v) Promotion or appointment as chief magistrate after 3 years experience as
principal magistrate or as senior state counsel or 8 years practice at the bar.

CUSTOMARY COURTS

The customary courts act governs the establishment, composition and powers of these courts.
The customary court system is structured like a pyramid with the customary court of appeal at
the apex and the headman’s court at the bottom. The various courts within the hierarchy having
varying jurisdictions, which the exercise over geographically defined area.

There are two types of customary courts namely:

a. Those officially recognized or established by the designated minister (formal or official

customary courts).
b. Those informally established by the people of a particular locality to meet their peculiar
needs because the “official” court is beyond their reach.
The formal courts are either lower customary court.

COURTS WITH SPECIAL JURISDICTION

THE INDUSTRIAL COURT

The industrial court was created under the provisions of the Trade Dispute Act 1982 as
subsequently amended and is now re-enacted in the Trade Dispute Act 2004. Prior to these
changes, the machinery set up for the settlement of industrial disputes was multifaceted and
included the intervention of the responsible minister, the commissioner of labour and the
possibility of contributions by the permanent arbitrator, an investigator or a committee of
investigation, and a sole commissioner. The present trade dispute act gives the court a number
of powers and rights for the purpose of settling trade disputes and the securing and maintaining
of good industrial relations in the country.

COMPOSITION

The judges are appointed by the president at his discretion from among person’s possessing the
qualification to be judges of the high Court. The court is headed by a judge president and other
judges rank according to their dates of appointment. The judge sits with assessors one of whom
shall be selected by him from among persons nominated by the organization representing
employees or trade unions in Botswana and the other selected by him from among persons
nominated by the organization representing employers in Botswana. a judge of the court retires
on attainment of the age 70 years, although the state president and parliament may permit such
a judge to continue in office for such period as may be necessary to enable him to deliver a
judgment or to do any other thing in relation to proceedings that were commenced before him
before he attained the prescribed age.

JURISIDCTION

The court generally has exclusive jurisdiction in every matter properly” before the court under
the trade dispute act.

The act provides that the court has exclusive jurisdiction in every matter properly before it
under this act. The court has two primary functions: to fear and determine all trade disputes
and to promote good industrial relations in Botswana. The act defines a ‘trade dispute’ as
including a dispute between unions, a grievance and any dispute over:

a) The application or the interpretation of any law relating to employment;

b) The terms and conditions of employment of any employee or class of employees

, or the physical conditions under which such employees or class of employees
may be required to work;

c) The entitlement of any person or group of persons to ant benefit under an

existing collective agreement;
 d) The existence or non- existence of any collective agreement;

e) The dismissal , employment , suspension from employment , retrenchment ,

reemployment or reinstatement of any person or group of persons; or

f) The recognition or non- recognition of an organization seeking to represent

employees in the determination of their terms and conditions of employment.

THE COURT MARTIAL

The courts –martial are special courts established under the Botswana Defense Force Act to try
and punish military offences and generally to enforce military discipline within the Botswana
Defense Force (BDF). The offences which are set out in the Act, range from those that arise
out of conduct in the course of military operations to conduct of solider generally. They include
aiding the enemy, cowardly behavior, causing despondency within the force, mutiny, desertion,
insubordination and drunkenness. Save a few special cases the jurisdiction of courts martial
extends only to members of the armed forces.

CONVENING THE COURT

Unlike regular courts, courts-martial’s are ad hoc. They are convened as and when it becomes
necessary to try a specific individual or individual of specified offences. They stand dissolved
as soon as they have completed a trial. Power to set –up court-martial vests in the commander
of the Botswana Defense force or by any officer not below filed rank authorized by the
commander. Field rank means the rank of major and above.

In convening the court –martial the commander or field officer must painstaking care to ensure
that it is constituted according to the provisions of the Act, first, the court must consist of a
presiding officer and at least two other members. However, when the offence being tried is
punishable by death then the court must consist of a presiding officer and at least four other
members. In either case the presiding officer must be a member of the BDF and must have
been an officer for a period of not less than 2 years or for periods amounting in aggregate to
not less than 2 years. Additionally he must be of the rank of major or above. An officer of a
lower rank may be appointed to preside over a court- martial only in exceptional situations.
This is so when in the opinion of the commander or convening officer an officer of the requisite
rank and with suitable qualifications is, with due regard to the exigencies of the service, not
available. In any case the officer appointed must not be of a rank below that of a captain.

Although the act does prescribe the rank of the other members of the court martial it provides
that at least two members must be of the rank lower than that of captain. This requirement
ensures that the court is representative of the entire officer corps of the army and is not just the
monopoly of the senior officers. As it so happens it is the low-rank officers, more than the
senior officers that often appear before the court-martial. So it is only fair that their ranks be
always represented in the court.

Any person convicted by a court martial may appeal to the high court. He may also appeal
further to the court of appeal. It should in this respect also be pointed out that the court martial
is subject to the supervisory powers of the high court for the purposes of ensuring that justice
is duly administered by it.

Section 88 provides that the defendant may employ a lawyer of his own choice at his own
expense to represent him. Decisions of the court are reached by a majority of the members of
the court. Where there is a tie the accused is acquitted. Nevertheless in trials involving offences
that are punishable by only death. finding of guilty must be unanimous. Where here is no such
unanimity the court must be dissolved and the accused tried de novo by another court.

The commander must confirm all findings of guilty as well as the sentences and until he does
so they are not regarded as findings or sentences of the court. Where the commander declines
to confirm a finding or sentence he may ask the court to re-consider. He cannot however order
them to reach a certain decision.